Berhaz P/L v Master Control A/C P/L

[1994] FCA 433

JUDGMENT No. ...A 933 - 9't

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 819 of 1993

)

GENERU DIVISION 1

-a BERHAZ PTY LIMITED

First Applicant

THERMAC TECHNICAL SERVICES (AUSTRALIA) PTY LIMITED

Second Applicant

AnD: MASTER CONTROL A/C PTY

LIMITED

First Respondent

COLIN WALKER trading as C &

R WALKER FIBREGLASS

Second Respondent

GIFFORD REFRIGERATION PTY LIMITED ACN 000 896 597 and DARREN JAMES GRAHAn trading as PREMIAIR REFRIGERATION AND AIR CONDITIONING

Third Respondent

WRAlI:	FOSTER J
DATE:	31 MARCH 1994
P L x B a	SYDNEY
$35,000. The application is supported by the affidavit of

12 JUL 1994

- (Extempore)

HIS BDllOUR: By this notice of motion the respondents to

these proceedings seek security for costs in the sum of

. 3 .

day and that, as a matter of discretion, I should therefore not grant it. The discretion as to the awarding of security

for costs in this Court is provided for in 6 56 of the Pederal

w t of 1976. I do not need to set the section out. It is in very wide terms. Whilst clearly enough, questions of delay must always be taken into account and may migh quite significantly in the detezmination to grant eecurity or not, it is in my view a matter that can be placed in the scales along with questions of the presence or absence of prejudice to the respondent to such an application if an order for security be made.

It seems to me that there are circumstances sufficiently indicated, which would point to the desirability of security for costs being granted. These matters are referred to in the correspondence annexed to the affidavit. There is no need for me to set them out in detail here. I take the delay into account but it does not in my view weigh against the granting of security in circumstances where no additional impost is being placed upon the applicant; nor ie

prevent the applicant proceeding with its case.	it suggested that the requirement of security would in any way
In the circwnstances, I think the simpleet order to make is one ordering security in the amount sought, but indicating that the security is to be provided from that which has already been provided in the proceedings and to take account of any possible problems that may arise in the litigation by simply giving either party liberty to apply on one days' notice.

I further order that the costs of this motion be

renerved.

I certify that this and the preceding three (3) page8 are a true copy of the reanone for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate: 6-	Date :	31 MARCH 1994
A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:  MR P. KERR

INSTRUCTED BY:  ALLEN W E N h HEMSLEY

COUNSEL FOR THE RESPONDENT:	MR J. NICHOLAS
INSTRUCTED BY:	STEPHEN C. LANE
DATE OF HEARING:	31 MARCH 1994
DATE OF JUDGMENT:	31 MARCH 1994
IN THE FEDERAL COURT OF AUSTRALIA	1
i
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 819 of 1993

1

GENERAL DIVISION 1

BE'IWEENx BERHAZ PTY LIMITED

First Applicant

THERMAC TECHNICAL SERVICES (AUSTRALIA) PTY LIMITED ACN 060 446 862

Second Applicant

AlODt MASTER CONTROL A/C PTY

LIMITED

First Respondent

COLIN WALKER trading as C &

R WALKER FIBREGLASS

Second Respondent

GIFFORD REFRIGERATION PTY LIMITED ACN 000 896 597 and DARREN JAMES GRAHAn trading as PREMIAIR REFRIGERATION AND AIR CONDITIONING

Third Respondent

JUDGE -1IK; ORDERS: FOSTER J

DAl'Bx	31 MARCH 1994
P L x E a	SYDNEY
1. security for costs be granted but in the form already provided in the proceedings.
2. -both parties be given liberty to apply on day's

notice.

3.    the costs of this motion be reserved.

W : Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.