Biztaf P/L (In Liquidation) v Australian Guarantee Corporation

[1993] FCA 838

8 3 g 1 93

JUDGMENT No. ..,..., ,.,, , ....., ,., ,,,, , .,,.

IN THE FEDERAL COURT OF AUSTRALIA )

)

PEW SOUTH WALES DISTRICT REGISTRY ) No. NG 648 of 1993

)

GENERAL DIVISION )

BETWEEN:  BIZTAF PTY LIMITED
(In Liauidation)

Applicant

RECEIVED	AND :	AUSTRALIAN GUARANTEE
2 3 NOV 1993	CORPORATION AND ANOR
FEDERAL COURT OF

AUSTRALIA	First Respondent
PRINCIPAL

REQlmRY BENEFICIAL F I N A N C E

CORPORATION LIMITED

Second Respondent

4 November 1993

REASONS FOR JUDGMENT

LOCKHART J.

Before the Court this morning are motions for security for costs by the two respondents to the proceeding. The proceeding was commenced on 20 August 1993 and directions were made shortly thereafter for the filing of affidavits, pleadings and other documents. The directions were later vacated, because the parties sought to avoid costs which would necessarily be incurred, whilst, in the meantime, these motions for security for costs, and the subsequent fate of the proceedings made could be determined.

particular in not filing affidavits to resist the motions.

This morning counsel for the applicant, which is a company in liquidation, sought an adjournment of the two motions. Counsel frankly conceded that his client was at fault in not having responded to the motions in any way until today, in

Counsel made it clear that his client does wish to oppose the motion for security for costs, essentially on the footing that, although the applicant is a corporation in liquidation, those who were the promoters of the company are themselves people who may have difficulty providing the liquidator with sufficient funds to enable security to be given, and that, in any event, the unfortunate demise of the applicant is, so it is asserted, due to the conduct of the respondents in the proceeding. The barrier prima facie presented in resisting the application for security by Bell Wholesale CO Limited v Gates Export Corporation (1984) 2 FCR 1, (1984) 52 ALR 176 is surmounted.

Counsel also frankly stated that if the motion is adjourned, of course it would have to be on terms as to costs, and perhaps other terms to safeguard the interests of the respondents to the proceeding who are the moving parties on the motion.

It is an unsatisfactory position and no adequate explanation

has been glven as to why the applicant has not responded to the

motions for security for costs, but I am loathe even at this	stage, notwithstanding that absence of conduct, to shut the
applicant out from filing its evidence to resist the motion. I think the interests of justice are best served by adjourning the motion so that the applicant may put its house in order to resist the motion.
I take this course particularly as it seems from what has been said to me and from what I have read that if the motions proceed today and if they are successful, that may itself put an end to the litigation, unless the order for security is complied with, and it may be that there is little chance of that being done. Accordingly, I propose to adjourn the motion, to a date that I will discuss with counsel, on terms however that the costs of today that have been thrown away must be paid in any event by the applicant, Biztaf Pty Limited (In Liquidation), and I will hear the parties as to whether any other terms should be imposed.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated: 4 November 1993

Counsel for the Applicant M M Hilbery

Solicitors for the Applicant : O'Sullivan and Saddington

Counsel for First Respondent :	S J Rushton
Solicitors for First Respondent:	Clayton Utz
Counsel for Second Respondent :	D J Hammerschlag
Solicitors for Second Respondent:	Baskin and Lewis
Date of Hearing	4 November 1993
Date of Judgment	4 November 1993