Deepsilver Pty Ltd v Aquatherm Australia Pty Ltd

[2007] WASCA 171

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Corporate appellant
4. › Whether s 1335(1) of the Corporations Act 2001 (Cth) applies to appeals
5. › Whether 'plaintiff' includes appellant
6. › Corporations Act 2001 (Cth), s 1335(1)
1. Practice and Procedure
2. › Security for costs
3. › Credible testimony of inability to pay
4. › Corporate trustee with no assets in own right
5. › Failure to provide current financial information
6. › Adverse inference from failure to adduce evidence
1. Practice and Procedure
2. › Security for costs
3. › Discretionary considerations
4. › Delay in making application
5. › Reasonably arguable case
6. › Amount of security

Quick Take

Section 1335(1) of the Corporations Act 2001 (Cth) applies to corporate appellants in Western Australia, following the New South Wales line of authority. Under the Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1), the discretion to order security for costs of an appeal is unfettered. Where a corporate appellant fails to provide current financial information despite requests, the court may draw an adverse inference that there has been no material improvement in its financial position.