Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd

[1999] VSCA 43

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Corporate plaintiff
4. › Impecunious company
5. › Offer of personal liability by directors/shareholders
6. › Whether offer determinative or merely a factor in exercise of discretion
7. › Corporations Law, s 1335
1. Practice and Procedure
2. › Security for costs
3. › Corporate plaintiff
4. › Nature of discretion under s 1335
5. › Whether discretion unfettered or subject to predisposition
6. › Corporations Law, s 1335
1. Practice and Procedure
2. › Security for costs
3. › Corporate plaintiff
4. › Relevance of merits and bona fides of claim
5. › Whether detailed examination of merits warranted on interlocutory application
1. Appeal
2. › Appellate review of discretionary decisions
3. › Security for costs
4. › Whether appellate court should interfere with weight given to competing factors

Quick Take

An offer by impecunious directors or shareholders of an impecunious corporate plaintiff to accept personal liability for costs is merely one factor in the exercise of the court's unfettered discretion under s 1335 of the Corporations Law, and cannot be determinative of an application for security for costs. The court should not readily accept an undertaking to pay costs from impecunious individuals who have no present prospect of making it good. The question of how security for costs should be approached in the case of an unlimited company was expressly left open.