Agmine P/L v Matpro Plastics P/L - [1993] FCA 466

4-Lb I 9 9 3

JUDGMENT No. ........ ........ .. I ........ ....

IN THE FEDERAIJ COURT OF AUSTRALIA ) NO. QG 96 of 1991

QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION 1
BETWEEN: AGMINE PTY. LTD.
Applicant

AND : MATPRO PLASTICS PTY. LTD. (IN LIOUIDATIONL

First Respondent

AND: REX THIELE

Second Respondent

AND : CHARLES WALTER LAYCOCK

Third Respondent

AND : JAMES RONALD McKINNON

Fourth Respondent

JUDGE MAKING ORDER:
DATE OF ORDER:
WHERE MADE:

further order of the court.

- -

security for the second ;espondentrs costs up to and including the first day of the trial in an amount of $58,000.00 in a form acceptable to the Registrar.
2. The applicant shall, by 16 July, 1993, provide security for the third and fourth respondents' costs up to and including the first day of trial in an amount of $22,000.00, in a form acceptable to the Registrar.
3. In the event that security in accordance with order
1 is not provided by 16 July, 1993, the action is
stayed as against the second respondent until

4. In the event that security in accordance with order
4 is not provided by 16 July, 1993, the action is

stayed as against the third and fourth respondents
until further order of the court.

5. The applicant has liberty to apply to vary orders 1 and 2 in the event that the liquidator takes over the conduct of this action from the receiver.
6. The applicant pay the costs of the second, third and fourth respondents of this application for security, to be taxed.

NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 96 of 1991

DUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION )
BETWEEN: AGMINE PTY. LTD.
Applicant

AND: MATPRO PLASTICS PTY. LTD. (IN LIOUIDATIONL

First Respondent

AND: REX THIELE

Second Respondent

AND: CHARLES WALTER LAYCOCK

Third Respondent

AND: JAMES RONALD McKINNON

Fourth Respondent

Coram: Drummond J
Place: Brisbane

Date: 30 June, 1993
REASONS FOR JUDGMENT

The second respondent and the third and fourth that the applicant provide security for their costs of the

respondents, who are separately represented, apply for orders

action. The applicant was wound up on Monday last, 25 June
1993. The evidence indicates that it has long been in
financial difficulties.

It is the receiver appointed by Mr. Sakzewski, a director of the applicant, who is conducting the action for the benefit of Mr. Sakzewski as grantee of the security under which the receiver was appointed. It was pointed out that if the receivership produces an excess of moneys secured to Mr. Sakzewski, the liquidator of the applicant will benefit, but neither Mr. Sakzewski nor his receiver, who both swore affidavits, gave any evidence touching on whether this is a possibility. There was, in particular, no evidence as to what assets of the applicant additional to this right of action are available to the receiver. Mr. Sakzewski's security is also not in evidence.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 466
Decision Date: 30 Jun 1993

CaseChat Overview and Summary

The case of Agmine P/L v Matpro Plastics P/L involves Agmine P/L, the applicant, suing Matpro Plastics P/L, in liquidation, and three other respondents. The matter was heard in the Federal Court of Australia, Queensland District Registry. The primary legal issue before the court was whether the applicant should provide security for the costs of the second to fourth respondents if the action proceeded. The second to fourth respondents argued that the applicant's claims against them lacked strong prospects of success and that they were entitled to security for their costs. The applicant, on the other hand, contended that ordering security would stifle the litigation and that the respondents were not entitled to such security.

Drummond J considered the evidence and submissions from both sides. The court found that the applicant had failed to demonstrate the impecuniosity of Mr. Sakzewski, the secured creditor funding the action. The court held that the applicant's claims against the second to fourth respondents were not particularly strong and that the respondents were entitled to security for their costs. The court ordered the applicant to provide security for the second respondent's costs up to and including the first day of the trial in the amount of $58,000.00 and for the third and fourth respondents' costs up to and including the first day of the trial in the amount of $22,000.00, both in a form acceptable to the Registrar. If the applicant failed to provide the required security by 16 July 1993, the action would be stayed against the respective respondents until further order of the court. The applicant was also ordered to pay the costs of the second, third, and fourth respondents of this application for security, to be taxed.

Orders