Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Success Capital Pty Ltd (ACN 091 989 874) v Hope Island Resort Holdings Pty Ltd (ACN 091 967 921) [2007] FCA 1562
PRACTICE AND PROCEDURE – security for costs – s 1335 Corporations Act 2001 (Cth) and s 56 Federal Court of Australia Act 1975 (Cth) – whether applicant could meet a costs order to pay the respondents' costs – consideration of nature of assets and position of applicant – relevance of "Deed of Guarantee" offered by applicant in an attempt to satisfy security for costs claim – whether applicant empowered to give a guarantee committing assets of a unit trust with no apparent interest in this litigation – relevance of settlement discussions to exercise of judicial discretion – costs estimate not disputed PRACTICE AND PROCEDURE – evidence – evidence as to valuation of properties – valuation report clearly not prepared for use in court proceedings – lack of evidence as to specialised knowledge of report's author – non-compliance with the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia Held: Security for costs in the amount of $114,120.63 by way of payment into Court or unconditional bank guarantee awarded. Valuation evidence not admitted. Corporations Act 2001 (Cth) s 1335 Evidence Act 1995 (Cth) ss 76, 79,135 Federal Court of Australia Act 1976 (Cth) s 56 Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 cited CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 cited Cherry v Read unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 cited Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 applied General Credits Ltd v Tawilla Pty Ltd (1984) 1 Qd R 388 cited Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (formerly Turnbull Cooktown Pty Ltd) (No 3) [2007] FCA 1078 cited KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 applied Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 cited United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 cited Walker v Wimborne (1976) 137 CLR 1 cited Westpac Banking Corporation v Garrett [2004] SASC 265 cited
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