Merribee Pastoral v ANZ Banking Group [1998] HCA 41

High Court of Australia Kirby J Merribee Pastoral v ANZ Banking Group (S18/1998) [1998] HCA 41

ORDER

1. Defendant's application dismissed with costs.

2. Certify for counsel.

Cur adv vult

Kirby J delivered the following written judgment:—

16 June 1998 Kirby J

1. This application for an order for security for costs raises two questions. The first relates to the power of the Court to make such an order in respect of proceedings brought in its original jurisdiction. The second, power being established, is whether exercising the discretions afforded to it, the Court should order the provision of security in the circumstances of this case, including the fact that the plaintiff companies are insolvent.

The facts

2. On 13 February 1998 Merribee Pastoral Industries Pty Ltd, R J Gilbert Investments Pty Ltd and West Merribee Pty Ltd (the plaintiffs) caused a writ to be issued out of this Court, together with a statement of claim. The process named, as defendants, the State of New South Wales, the Commonwealth of Australia and Australia & New Zealand Banking Group Ltd (the Bank). Subsequently, the plaintiffs discontinued the proceedings against the State and the Commonwealth. However, they maintain their proceedings against the Bank. On 27 April 1998 the Bank caused a summons to be issued. That summons sought an order that, within fourteen days, the plaintiffs give security for the costs of the proceedings between them and the Bank in the sum of $53,700. In default of the provision of security, the Bank sought an order that the plaintiffs' proceedings be dismissed with costs. Earlier, the State and the Commonwealth had sought similar orders for the provision of security for their costs. However, with the discontinuance of the plaintiffs' proceedings against them, those summonses were discontinued, leaving the Bank's summons the only one now to be determined.