Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 10)

[2010] FCA 975

FEDERAL COURT OF AUSTRALIA

Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 10) [2010] FCA 975

Citation:		Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 10) [2010] FCA 975
Parties:		ANDERSON FORMRITE PTY LTD (ACN 097 507 652) v BAULDERSTONE PTY LTD (ACN 002 625 130)
File number(s):		NSD 1272 of 2007
Judge:		GRAHAM J
Date of judgment:		31 August 2010
Dates of hearing:	31 August 2010
Date of last submissions:	27 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Solicitor for the Applicant:	B J Maher of John de Mestre & Co
Counsel for the Respondent:	B D Hodgkinson SC and A C Harding
Solicitor for the Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1272 of 2007

BETWEEN:	ANDERSON FORMRITE PTY LTD (ACN 097 507 652) Applicant
AND:	BAULDERSTONE PTY LTD (ACN 002 625 130) Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	31 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Respondent return to the Applicant’s solicitors on or before 14 September 2010 the bank guarantee provided to the Respondent by or on behalf of the Applicant pursuant to order 1 of the Court as made on 21 April 2009.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1272 of 2007

BETWEEN:	ANDERSON FORMRITE PTY LTD (ACN 097 507 652) Applicant
AND:	BAULDERSTONE PTY LTD (ACN 002 625 130) Respondent

JUDGE:	GRAHAM J
DATE:	31 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 25 August 2010, the Court ordered that there be judgment for the Applicant in these proceedings in the sum of $4,611,317.09, inclusive of a lump sum of $1,965,000.76 in lieu of interest up to judgment.  Earlier today, the Court made orders in respect of costs as follows:

   ‘1.The Respondent pay 10% of the Applicant’s costs.

   2.Such costs be paid on an indemnity basis in respect of the period from 23 July 2009 to 25 August 2010.’

2. After those costs orders were made earlier today, an application was made by the Respondent for a stay of execution in respect of the principal order and the orders as to costs.  Earlier today, that application, made ore tenus, was considered, whereupon an order was made that:

   ‘1.Execution of the judgment (order 1, as made on 25 August 2010, and orders 1 and 2, as made in respect of costs on 31 August 2010) be stayed up to and including 15 September 2010, or further order.’

3. In that context, the Applicant, which has enjoyed success in the proceedings and success in relation to the question of costs, limited in the terms indicated, sought to have certain bank guarantees returned which provided security for the unsuccessful Respondent’s costs in the proceedings.  The application, again made ore tenus, sought the following order:

   ‘The Respondent return to the Applicant’s solicitors within 14 days the bank guarantees provided to it by or on behalf of the Applicant pursuant to: 

   (a)Order 6 of the orders made by the Court on 6 February 2008, as amplified in paragraphs 1, 2, 3 and 4 of the short minutes initialled by Graham J and dated 6 February 2008, and the agreement between the parties noted by the Court on that date.

   (b)      Order 1 of the Court on 21 April 2009.’

4. It is common ground between the parties that four bank guarantees were provided by the Applicant pursuant to the orders of 6 February 2008 in a total amount of $450,000 and a further guarantee for $470,000 by way of security for costs pursuant to order 1 made on 21 April 2009. 

5. An agreement was reached between the parties that the Respondent should draw down $220,000 under the bank guarantees provided in accordance with the orders made on 6 February 2008, leaving a balance of $230,000.  The total amount presently covered by the bank guarantees providing security for the unsuccessful Respondent’s costs is $700,000.  Whilst execution has been stayed in respect of the principal order of 25 August 2010, and the orders as to costs made earlier on 31 August 2010, it seems to me that the Applicant is entitled to the fruits of its victory, to the extent of the return of the bank guarantees which were provided by way of security for the Respondent’s costs. 

6. Senior counsel for the Respondent indicates, however, that there are still moneys said to be outstanding under costs orders made by the Court in the Respondent’s favour on 9 April 2008, 20 March 2009 and 9 April 2009.  The solicitor for the Applicant points out that, in respect of the orders made on 9 April 2009, there was ultimately a payment effected of a very substantial amount of money, representing the costs thrown away when there was a vacation of a series of dates set aside for the hearing of this matter. 

7. It seems to me that the security covered by the bank guarantee in the sum of $470,000 should be returned, as sought, and that the remaining security covered by the guarantees, given pursuant to the orders of 6 February 2008, covering $230,000 should remain in place, pending further consideration of the outstanding liability of the Applicant to the Respondent in respect of earlier costs orders. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        3 September 2010