Astra Resources PLC v Full Exposure Pty Ltd

[2013] FCA 450

FEDERAL COURT OF AUSTRALIA

Astra Resources PLC v Full Exposure Pty Ltd [2013] FCA 450

Citation:		Astra Resources PLC v Full Exposure Pty Ltd [2013] FCA 450
Parties:		ASTRA RESOURCES PLC v FULL EXPOSURE PTY LTD
File number:		SAD 239 of 2012
Judge:		BESANKO J
Date of judgment:		8 May 2013
Legislation:		Federal Court of Australia Act 1976 (Cth) s 56
Date of hearing:	8 May 2013
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	Mr N Swan
Solicitor for the Applicant:	Warmings Barristers & Solicitors
Counsel for the Respondent:	Mr J Catlin
Solicitor for the Respondent:	Oliver Lane Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 239 of 2012

BETWEEN:	ASTRA RESOURCES PLC Applicant
AND:	FULL EXPOSURE PTY LTD Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	8 MAY 2013
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Pursuant to s 56 of the Federal Court of Australia Act 1976 the Applicant provide security for costs in the sum of $50,000 within 7 days with the said security to be provided by payment into Court in accordance with the directions of the District Registrar of South Australia.

2.If paragraph 1 above is not complied with then the proceeding be stayed until further order.

3.The Applicant has leave to file an amended statement of claim incorporating the particulars set out in exhibit JCW-21 to the affidavit of John Charles Warming sworn on 7 May 2013 within 7 days of the payment being made in accordance with paragraph 1 above.

4.The Respondent has leave to file and serve an amended defence in accordance with the document entitled “Revised Proposed Amended Defence” dated 21 March 2013 within 7 days of the Applicant filing the amended statement of claim in accordance with paragraph 3 above.

5.The costs of the amended interlocutory application e-lodged on 14 March 2013 be reserved.

6.The directions hearing be adjourned to 9.00 am on Friday 7 June 2013.

7.Liberty to apply.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 239 of 2012

BETWEEN:	ASTRA RESOURCES PLC Applicant
AND:	FULL EXPOSURE PTY LTD Respondent

JUDGE:	BESANKO J
DATE:	8 MAY 2013
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The parties to this proceeding seek various orders. 

   Security for costs

2. The power of the court to order security for costs is contained in s 56 of the Federal Court of Australia Act 1976 (Cth). In this case, the applicant submits that in terms of the manner in which security for costs is provided, the appropriate order is that it be ordered to pay moneys into court. I agree with that submission.

3. The only dispute between the parties on the application for security for costs is as to the amount of the security.  On the one hand, the applicant puts forward an estimate of $25,000.  The applicant’s estimate is contained in a letter from its solicitors dated 7 November 2012.  After its estimate of $25,000, the applicant, through its solicitors, state:

   Despite this being a reasonable assessment, our client would be prepared to go further and provide appropriate security up to $30,000.

4. On the other hand, the respondent puts forward an estimate of $73,391.  The respondent’s initial estimate was $83,180.  That estimate was put forward by the respondent in a letter from its solicitors dated 31 October 2012.  That estimate included costs incurred to date.  In other words, it included costs incurred prior to the date of the estimate.  The respondent revised its estimate, and its revised estimate is contained in an affidavit of Mr Andrew Bryce of Oliver Lane Lawyers, sworn on 8 March 2013.  Oliver Lane Lawyers are the lawyers acting for the respondent.  Paragraph 7 of that affidavit sets out the respondent’s revised estimate, and again it includes costs incurred to date.

5. As I understand it, the normal rule is that security for costs relates to future costs or costs to be incurred, and I am not persuaded that I should depart from that rule.  However, I take into account the costs which may have been incurred since the respondent made its application.

6. It is difficult to be precise about the appropriate amount for security and, in fact, I note that section 56(3) of the Federal Court of Australia Act 1976 (Cth) provides:

   The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.

7. I have reached the view that the applicant’s estimate is an underestimate, and that view is only reinforced by the particulars which have now been provided by the applicant. 

8. In all the circumstances, I propose to make an order for security for costs in the amount of $50,000.  I will order that that amount be paid into court.  I will order that the proceeding be stayed until further order if that is not done.

   Particulars of paragraphs 9.1 and 9.2

9. I have considered the particulars of paragraphs 9.1 and 9.2 of the statement of claim, which the applicant submits satisfies the criticisms made by the respondent.  The particulars are contained in exhibit JCW21 to the affidavit of John Charles Warming, sworn on 7 May 2013. 

10. I think those particulars sufficiently perform the functions of particulars, which is to provide the other party with adequate notice, and which will enable the court to confine the evidence at trial.  Some criticisms can be made of the particulars, but I do not think that they mean the particulars are inadequate.  I will give the applicant leave to file an amended statement of claim containing the particulars.  It follows that I refuse the respondent’s application for leave to file and serve the interrogatories which the respondent put forward.

    Revised amended defence

11. The applicant complains of the particulars to paragraphs 21 and 18 of the document which the respondent has put forward and which is headed, “Revised Proposed Amended Defence”.  The respondent seeks leave to file and serve that document.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       15 May 2013