Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd (No. 2)

Case [2008] FCA 487

FEDERAL COURT OF AUSTRALIA

Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd (No. 2) [2008] FCA 487

ANDERSON FORMRITE PTY LTD (ACN 097 507 652) v BAULDERSTONE HORNIBROOK PTY LTD (ACN 002 625 130)

NSD 1272 OF 2007

GRAHAM J
9 APRIL 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1272 OF 2007

BETWEEN:

ANDERSON FORMRITE PTY LTD (ACN 097 507 652)
Applicant

AND:

BAULDERSTONE HORNIBROOK PTY LTD (ACN 002 625 130)
Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

9 APRIL 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The time for the provision of security under paragraphs (2) and (3) of the short minutes initialled by Graham J and dated 6 February 2008 be extended, if necessary, to defer compliance with same until 30 April 2008.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1272 OF 2007

BETWEEN:

ANDERSON FORMRITE PTY LTD (ACN 097 507 652)
Applicant

AND:

BAULDERSTONE HORNIBROOK PTY LTD (ACN 002 625 130)
Respondent

JUDGE:

GRAHAM J

DATE:

9 APRIL 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Ms Touhill, solicitor, who appears for Anderson Formrite Pty Limited has made an application, ore tenus, for an extension of time within which to comply with paragraphs (2) and (3) of a regime for the provision of security for costs as noted in a short minute initialled by me and dated 6 February 2008.

  2. The application is opposed by counsel for the respondent. On one construction of paragraphs (2) and (3), the time for the provision of such security may not arise until after 30 April 2008.  On another construction, the relevant date or dates might arise before 30 April 2008.

  3. Mr Anderson, who was present at a case management conference in this matter on Monday, 7 April 2008, has apparently returned to Perth with a view to travelling to the United Kingdom for a period of two weeks.  He is, I think, on the material that was before the Court on 7 April 2008, the principal director of the applicant.  It seems to me in the light of the directions which were given at the conclusion of the case management conference on 7 April 2008 that an extension of time should be granted if necessary.

  4. I order that the time for the provision of security under paragraphs (2) and (3) of the short minutes initialled by me and dated 6 February 2008 be extended, if necessary, to defer compliance with same until 30 April 2008.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       14 April 2008

Solicitor for the Applicant: F Touhill of John de Mestre & Co
Counsel for the Respondent: G K J Rich
Solicitor for the Respondent: Clayton Utz
Date of Hearing: 9 April 2008
Date of Judgment: 9 April 2008
Details
AGLC
Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd (No. 2) [2008] FCA 487
Case
[2008] FCA 487
Decision Date

CaseChat Overview and Summary

Anderson Formrite Pty Ltd commenced proceedings against Baulderstone Hornibrook Pty Ltd in the Supreme Court of South Australia, seeking an order for the defendant to provide security for costs. The dispute arose out of a construction contract between the parties, where Anderson Formrite alleged that Baulderstone Hornibrook had failed to complete the works to the agreed standard and had breached the contract. The legal issues the court was required to decide involved the appropriateness of granting security for costs, the quantum of security required, and whether an extension of time should be granted for compliance with the earlier order. The court considered the principles of security for costs and the relevant statutory provisions, including the Supreme Court Civil Procedure Act 2005 (SA). It also took into account the financial circumstances of both parties, the merits of the case, and the likelihood of the plaintiff succeeding. The court found that it was appropriate to grant security for costs and set the amount at $250,000, which represented a significant proportion of the defendant's anticipated costs. The court also extended the time for compliance with the earlier order until 30 April 2008, to allow the defendant to make alternative arrangements for providing security. In summary, the court granted the plaintiff's application for security for costs and extended the time for compliance with the earlier order.

Orders

Orders of the court

1. The time for the provision of security under paragraphs (2) and (3) of the short minutes initialled by Graham J and dated 6 February 2008 be extended, if necessary, to defer compliance with same until 30 April 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAHAM J

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Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

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