Avspares Pty Ltd v Skywest Aviation Pty Ltd

[1997] FCA 1095

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 707 of 1996

BETWEEN:	AVSPARES PTY LIMITED APPLICANT
AND:	AVIATION PTY LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	19 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

In this matter, in my opinion, the costs should follow the event.  The question is, what was the event.  There were several propositions advanced but I think the significant matter which arises from the chronology is that the offer of security over the personal assets of the directors of the applicant did not arise until the proceedings had been substantially carried through.  It was not until 19 June 1997 that an offer was made by the directors of the applicant to give personal undertakings in relation to any costs order.  I found that this was not sufficient and that there ought be security in the nature of a charge over personal assets to support those undertakings.

Accordingly, in my view, the critical matter in the decision was whether there should be security over the personal assets.  Having regard to the late stage at which this question arose and the lack of any communication prior to early June in 1997 in relation to personal undertakings, in my view, the applicant ought to pay the costs of the respondent in relation to this application.

An application has been made on behalf of the respondent for an order that leave be granted to take out the order for costs immediately and that the costs be taxed so that they can be recovered forthwith.  In my view, in the circumstances of this case, it is not appropriate to take out the order immediately.  A charge over personal assets has been given, or will be given when the parties agree on suitable terms.  I therefore decline to accede to this request. 

Accordingly, the orders of the Court are that the applicant should pay the costs of the respondent in relation to the application for security for costs.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            19 September 1997

Counsel for the Applicant:	Mr P W Larkin
Solicitor for the Applicant:	Jenkins & Associates
Counsel for the Respondent:	Mr S G Burley
Solicitor for the Respondent:	Deacons Graham & James
Date of Hearing:	19 September 1997
Date of Judgment:	19 September 1997