Addenbrooke Pty Ltd v Duncan (No 3)

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FEDERAL COURT OF AUSTRALIA

Addenbrooke Pty Ltd v Duncan (No 3) [2014] FCA 322

Citation: Addenbrooke Pty Ltd v Duncan (No 3) [2014] FCA 322
Parties: ADDENBROOKE PTY LIMITED ACN 055 973 576 v TRAVERS WILLIAM DUNCAN, PETER GRAY, SOUTHERN CROSS EQUITIES PTY LTD
ACN 071 935 441, ARTHUR PHILLIP PTY LTD ACN 100 908 101, ARTHUR PHILLIP NOMINEES PTY LTD ACN 111 862 358, CASCADE COAL PTY LTD ACN 119 180 620, RICHARD JONATHAN POOLE, JOHN CHARLES ATKINSON, COAL AND MINERALS GROUP PTY LTD ACN 144 641 092
and AMANDA POOLE
File number: NSD 2243 of 2012
Judge: JACOBSON J
Date of judgment: 2 April 2014
Catchwords: PRACTICE AND PROCEDURE – application for security for costs – where applicant company impecunious – value of undertakings given by director and parent company – whether order for security should be made having regard to non-disclosure of material information
Cases cited: Addenbrooke Pty Ltd v Duncan [2013] FCA 573
Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191
Prynew Pty Ltd v Nemeth [2010] NSWCA 94
Date of hearing: 26 March 2014
Date of last submissions: 26 March 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 48
Counsel for the Applicant: Mr FM Douglas QC with Mr MJ Smith
Solicitor for the Applicant: Gye & Associates
Counsel for the First Respondent: Mr GES Ng
Solicitor for the First Respondent: Yeldham Price O’Brien Lusk
Counsel for the Second Respondent:  Mr S Kanagaratnam
Solicitor for the Second Respondent: Watson Mangioni Lawyers
Counsel for the Third Respondent: Mr JAC Potts
Solicitor for the Third Respondent: Speed and Stracey Lawyers
Solicitor for the Fourth, Fifth, Seventh, Eleventh and Twelfth Respondents: Mr T Murray of Torq Murray Law
Counsel for the Sixth and Ninth Respondents: Dr AS Bell SC with Mr J Williams
Solicitor for the Sixth and Ninth Respondents: TressCox Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2243 of 2012
BETWEEN:

ADDENBROOKE PTY LIMITED ACN 055 973 576
Applicant
AND:

TRAVERS WILLIAM DUNCAN
First Respondent

PETER GRAY
Second Respondent

SOUTHERN CROSS EQUITIES PTY LTD ACN 071 935 441
Third Respondent

ARTHUR PHILLIP PTY LTD ACN 100 908 101
Fourth Respondent

ARTHUR PHILLIP NOMINEES PTY LTD ACN 111 862 358
Fifth Respondent

CASCADE COAL PTY LTD ACN 119 180 620
Sixth Respondent

RICHARD JONATHAN POOLE
Seventh Respondent

JOHN CHARLES ATKINSON
Ninth Respondent

COAL AND MINERALS GROUP PTY LTD ACN 144 641 092
Eleventh Respondent

AMANDA POOLE
Twelfth Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

2 APRIL 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The parties are directed to bring in orders to give effect to these reasons for judgment.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2243 of 2012
BETWEEN:

ADDENBROOKE PTY LIMITED ACN 055 973 576
Applicant
AND:

TRAVERS WILLIAM DUNCAN
First Respondent

PETER…

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Details
Case
[2014] FCA 322
Decision Date

CaseChat Overview and Summary

Addenbrooke Pty Ltd sought an order for security for costs from Duncan. The applicant, a company, sought to recover costs incurred in defending a proceeding. Duncan, an individual, did not dispute that Addenbrooke was impecunious but argued that it had not fully disclosed the value of the undertakings given by its director and parent company. The case was heard in the Federal Court of Australia.

The court was required to determine the appropriate amount of security for costs that Addenbrooke should provide. The central legal issue was whether the court should consider the full value of the undertakings given by the director and parent company, despite the non-disclosure of material information by Addenbrooke. The court considered the principles of justice and the need to balance the rights of both parties.

The court found that it should consider the full value of the undertakings given by the director and parent company, despite the non-disclosure of material information by Addenbrooke. The court reasoned that the principle of justice required it to consider all relevant factors in determining the appropriate amount of security for costs. The court also noted that the non-disclosure of material information did not necessarily mean that the value of the undertakings was not relevant. The court concluded that the appropriate amount of security for costs should be based on the full value of the undertakings.

The court ordered that the parties were to bring in orders to give effect to these reasons for judgment. The court also noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The parties are directed to bring in orders to give effect to these reasons for judgment.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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