Berlaz Pty Ltd v Fine Leather Care Products Ltd

[1991] FCA 889

IN THE F E D E ~ COURT OF AUSTRALIA ) NO. QG 22 of 1991

QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: BERLAZ PTY. LTD.

First Applicant

AND:  BRUCE RICHARD TREVENA AND MARGARET ROSE
FRY

Second Applicants

AND:  FINE LEATHER CARE PRODUCTS LIMITED

Respondent 4

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J .

DATE OF ORDER:	8 AUGUST 199 1 'K<%
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The principal application be dismissed.

2.    The costs of and incidental to the proceedings incurred by the respondent be taxed and paid by all the applicants with the following exceptions:

(i) The second applicants, Bruce Richard

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

Trevena and Margaret Rose Fry are not liable in
respect of the costs of the application for
security.
(ii) The second applicants are not liable for
any costs incurred after the order for security

was made, that date being 22 May 1991.

3.    The costs reserved on Monday 5 August 1991 be included in the costs ordered against the first applicant.

IN THE FEDE& COURT OF AUSTRALIA 1 No. pG 22 of 1991

QUEENSLAND DISTRICT REGISTRY	1
1

BETWEEN: BERLAZ PTY. LTD.

First Applicant

AND:  BRUCE RICHARD TREVENA AND MARGARET ROSE FRY

Second Applicants

AND:  FINE LEATHER CARE PRODUCTS LIMITED

Respondent

: M A - PINCUS J.

PLACE: BRISBANE

DATE:  8 AUGUST 1991

EX TEMPORE REASONS FOR JUDGMENT

This case is not proceeding but a question has

arisen with respect to costs. From that point of view, the
case had three phases. Firstly, there was a question as to
interlocutory relief which was resolved in April; secondly,

there was a question as to security for costs which was

resolved in May; and the third phase is the one with which I

am presently concerned. It seems clear that an order for

costs should be made against the applicants as to the first
phase, and Mr. Martin who appears for the respondent does not
press for costs with respect to the third phase. The question

really is as to the second phase.

The argument advanced by Mr. Treherne on behalf of

the respondents is that there was some obscurity in the application for security, and he pointed out that in my

reasons I said that that obscurity existed, and I resolved it
by saying that the application for security was made only
against the first applicant. Nevertheless, it did affect the
second applicants because, if successful, and indeed that is
what happened, the whole suit would be stayed until the
security was provided. It is not quite so easy then to
determine what should be done with the costs which relate to
the security matter. On the whole, however, and not without
some doubt, I will accede to Mr. Treherne's application with

respect to those.

The order will therefore be that the principal

application will be dismissed and that the costs of and
incidental to the proceedings incurred by the respondent will

be taxed and paid by all the applicants with the following

exceptions:  firstly, the second applicants Trevena and Fry

would not be liable in respect of the costs of the application for security, and, secondly, the second applicants will not be liable for any costs incurred after the order for security was

made, that date being 22 May 1991.

The costs reserved on Monday will be included in the

costs ordered against the first applicant.

I certify that this and the

preceding page are a true
copy of the reasons for

judgment herein of his

Honour Mr Justice Pincus

Associate

Date h t 3 t ~ s 1 lL\q\?\