Bialkower, Bernie v Acohs Pty Ltd

[1997] FCA 1563

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 242 of 1997

BETWEEN:	BERNIE BIALKOWER APPLICANT
AND:	ACOHS PTY LTD FIRST RESPONDENT
R A BASHFORD CONSULTING PTY LTD SECOND RESPONDENT
RISK MANAGEMENT CONCEPTS PTY LTD THIRD RESPONDENT

JUDGE:	MERKEL J
DATE:	22 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The appellant Bernie Bialkower has applied for a stay of execution of a costs order that I made in May 1997.  The appeal against my orders in this matter has been fixed for hearing in the sittings of the Full Court in March 1998.

I am satisfied that in a case such as the present, the objective is that there should not be a real risk that either of the parties, if successful on the appeal, do not receive or recover (as the case may be) the costs ordered to be paid at the original hearing. The appellant’s offer of an undertaking to lodge a bank guarantee with the Court to abide further order of the Court seems to me to achieve that objective. 

In the circumstances I propose to accept the appellant’s undertaking and on the basis of that undertaking having been given, to order a stay of execution in respect of paragraphs seven and eight of the order in relation to costs made by me on 9 May 1997 insofar as those paragraphs relate to costs to be paid by the appellant.  The stay will operate pending further order.

Insofar as the costs of the present motion are concerned, it is my view that the appellant ought to pay those costs.  The appellant has sought an indulgence, particularly having regard to the time and manner in which it is sought to apply for a stay of execution.  In those circumstances the appellant ought to pay the costs of the motion.

The formal orders are therefore as follows: 

1.        Upon the appellant, Bernie Bialkower, by his counsel undertaking to the Court to lodge with the District Registrar on or before 9 January 1998 a bank guarantee in a form satisfactory to the District Registrar to secure payment of the sum of $119,215.25 to the respondent, Acohs Pty Ltd as and when ordered by the Court to do so, I order that paragraphs seven and eight of the order made by me on 9 May 1997, insofar as those paragraphs relate to costs ordered to be paid by the appellant, be stayed until further order of the Court.

2.        The appellant pay the respondent's taxed costs of and incidental to the motion dated 19 December 1997.

3.        Reserve general liberty to apply.

I indicate that the liberty to apply is reserved generally for both parties in the event that circumstances arise hereafter which make some adjustment to the undertaking appropriate, including its discharge or some other form of order.  I also make it clear that any further order in relation to the undertaking or the guarantee need not be made by me.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate:

Dated:            22 December 1997

Counsel for the Applicant:	Mr B R S  Kendall
Solicitor for the Applicant:	N A Young & Co
Counsel for the Respondent:	Mr M Clarke
Solicitor for the Respondent:	Mulcahy Mendelson & Round
Date of Hearing:	22 December 1997
Date of Judgment:	22 December 1997