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Berry v Innovia Security Pty Ltd

Berry v Innovia Security Pty Ltd

Case [2014] FCA 357 8 April 2014

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FEDERAL COURT OF AUSTRALIA
Berry v Innovia Security Pty Ltd [2014] FCA 357

Citation: Berry v Innovia Security Pty Ltd [2014] FCA 357

Parties: BENOY BERRY and GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761) v INNOVIA SECURITY PTY LTD, FORMERLY KNOWN AS SECURENCY PTY LTD (ACN 072 353 452)

File number(s): NSD 2597 of 2013

Judge(s): BUCHANAN J

Date of judgment: 8 April 2014

Catchwords: PRACTICE AND PROCEDURE – security for costs – applicants resident in the United Kingdom with no assets in Australia – whether security for costs should relate to the costs of the proceedings or the costs of enforcing judgment in the United Kingdom

Cases cited: Austin, Nichols & Co Inc v Lodestar Anstalt [2009] FCA 1228
Barton v Minister for Foreign Affairs (1984) 2 FCR 463
Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336
Logue v Hansen Technologies Ltd (2003) 125 FCR 590
Maxim’s Caterers Limited v Magnona Pty Ltd (No 1) [2010] FCA 450
Ogawa v The University of Melbourne [2004] FCA 491
PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321

Date of hearing: 25 March 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 43

Counsel for the Applicants: Dr C S Ward

Solicitor for the Applicants: Marque Lawyers

Counsel for the Respondent: Mr C Juebner

Solicitor for the Respondent: K&L Gates

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2597 of 2013

BETWEEN:
BENOY BERRY
First Applicant

GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761)
Second Applicant

AND:
INNOVIA SECURITY PTY LTD, FORMERLY KNOWN AS SECURENCY PTY LTD (ACN 072 353 452)
Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

8 APRIL 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Subject to compliance by the applicants with the orders which result from this judgment, security for costs is to be provided by the first applicant in the sum of $20,000.
2.The applicants are to prepare orders to give effect to this judgment to be settled at the next directions hearing.
3.Properly executed originals of the undertakings to be provided by the first applicant are to be filed before the next directions hearing and served on the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2597 of 2013

BETWEEN:
BENOY BERRY
First Applicant

GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761)
Second Applicant

AND:
INNOVIA SECURITY PTY LTD, FORMERLY KNOWN AS SECURENCY PTY LTD (ACN 072 353 452)
Respondent

JUDGE:

BUCHANAN J

DATE:

8 APRIL 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicants are a natural person and a United Kingdom company. Neither is resident or based in Australia. The respondent is an Australian company. The present application is for security for costs to be provided by the applicants before the matter proceeds further.
The proceedings were commenced by application and a statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berry v Innovia Security Pty Ltd

Details

AGLC: Berry v Innovia Security Pty Ltd [2014] FCA 357
Case: [2014] FCA 357
Decision Date

CaseChat Overview and Summary

The case of Berry v Innovia Security Pty Ltd [2014] FCA 357 involved applicants Benoy Berry and Global Secure Currency Limited, a UK company, bringing proceedings against Innovia Security Pty Ltd, formerly known as Securency Pty Ltd, an Australian company. The applicants sought security for costs before proceeding further in the litigation. The dispute arose from an alleged agency agreement between the parties, with the applicants claiming they were induced to terminate the agreement under false pretenses. Innovia Security, the respondent, sought security for costs on the basis that the applicants were not resident in Australia and had no assets in the country.

The legal issues before the court were whether the applicants should be required to provide security for costs given their foreign residency and lack of assets in Australia, and if so, the appropriate amount of such security. The court considered whether the existence of reciprocal arrangements for the enforcement of judgments between Australia and the United Kingdom was sufficient to mitigate the need for security or whether the amount should be limited to the cost of enforcing a judgment in the United Kingdom. The applicants argued that since their assets were in the United Kingdom, they should not be required to provide security.

Buchanan J held that while the applicants were not resident in Australia and had no assets within the jurisdiction, this was not the sole factor to be considered. The court noted that the existence of reciprocal arrangements for the enforcement of judgments was a relevant consideration but did not automatically preclude the requirement for security. The court found that the applicants had provided sufficient evidence of assets in the United Kingdom to satisfy a costs order, and therefore, an order for security for costs should be limited to the cost of enforcing such a judgment in the United Kingdom. The court ordered the first applicant to provide security in the sum of $20,000, subject to certain undertakings being met.

The court further ordered that the applicants prepare orders to give effect to the judgment, to be settled at the next directions hearing. Properly executed originals of the undertakings were to be filed before the next directions hearing and served on the respondent.

Orders