Federal Court of Australia

Jorgensen v JML Rose Pty Ltd (Dismissal of Appeals Upon Default) [2026] FCA 505

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The first respondent’s costs of the appeal, including reserved costs, are to be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The first respondent’s costs of the appeal, including reserved costs, are to be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(ex tempore, revised)

WHEELAHAN J:

1    On 9 February 2026 I made interdependent orders in two appeals that the appellant provide security for costs of the appeals in the single sum of $30,000 to be provided by payment into Court by 4.00 pm on 9 March 2026: Jorgensen v JML Rose Pty Ltd (Security for Costs) [2026] FCA 64. I ordered that if the security was not provided then the appeals would be stayed.

2    No security for costs has been provided.

3    The first respondent now applies for orders that the appeals be dismissed upon the appellant’s default in giving security for costs.

4    The appellant did not appear on the application when the matters were called, and he did not seek leave to appear by video link. I am satisfied on the evidence in an affidavit of James Matthew Lavercombe sworn 21 April 2026 that the appellant was served with the application which included the notice of filing and hearing which identified the time and date for the hearing and the place, which included the Law Courts Buildings in Brisbane and Melbourne.

5    The second respondent is the trustee of the appellant’s bankrupt estate. The trustee took the position that he would abide any order of the Court in relation to the appeal. However, the trustee identified continuing uncertainty in the administration of the estate that arose as a result of the appeals remaining on foot notwithstanding that they have been stayed.

6    The power of a single judge exercising appellate jurisdiction to make an order dismissing an appeal in the circumstances of default is in s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth): Du Bray v ACW [2021] FCAFC 103 at [12] (Jagot, Yates and Colvin JJ).

7    For three reasons I am satisfied that I should exercise the Court’s discretionary power to dismiss the appeals. The first reason is that the failure to provide security for costs is a default of substance and evinces an intention not to prosecute the appeals. Secondly, the Court should exercise its power to dismiss the appeal so as to remove the uncertainty which clothes the administration of the appellant’s bankrupt estate by the trustee. Thirdly, for the Court’s own case management purposes, the appeals should be brought to an end.

8    The first respondent sought the usual order for costs in these circumstances, being that its costs are to be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth): see Culleton v Balwyn Nominees Pty Ltd (No 2) [2017] FCAFC 12 (Allsop CJ, Dowsett and Besanko JJ). That order will be made. There was no application made by the first respondent to vary the costs orders made 9 February 2026 that the applicant pay the first respondent’s costs of the interlocutory application for security for costs, and therefore those orders remain. The trustee did not seek any order for costs.

Associate:

Dated:    23 April 2026