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.
- AGLC
- Berhaz P/L v Master Control A/C P/L [1994] FCA 433
- Case
- [1994] FCA 433
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether security for costs should be granted to the applicants and, if so, in what form. The applicants argued that the respondents' actions had caused delay and prejudice, justifying the granting of security. The respondents contended that the applicants had not adequately demonstrated the need for security and that the delay was not significant enough to warrant such an order. The court had to balance these arguments against the general discretion provided under section 56 of the Federal Court of Australia Act 1976.
The court found that there were circumstances indicating the desirability of granting security for costs. While the delay was a factor to consider, the court did not believe it outweighed the need for security. The judge concluded that the simplest order was to grant security in the amount sought, using the existing security provided in the proceedings. Additionally, the court allowed both parties the liberty to apply on one day's notice to address any potential issues that may arise during the litigation. The costs of the motion were reserved for later determination.
The court's final orders were that security for costs be granted in the form already provided in the proceedings, that both parties be given liberty to apply on one day's notice, and that the costs of the motion be reserved.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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