FEDERAL COURT OF AUSTRALIA
C.M.E. Blasting & Mining Equipment Ltd v Rock Tool Refurbishment Solutions Pty Ltd [2021] FCA 160
File number: SAD 43 of 2020 Judgment of: BESANKO J Date of judgment: 2 March 2021 Date of publication of reasons: 3 March 2021 Catchwords: PRACTICE & PROCEDURE — application for security for costs under s 56 of the Federal Court of Australia Act 1976 (Cth) and r 19.01 of the Federal Court Rules 2011 (Cth) — where applicant in proceeding a corporation in Ontario, Canada — where assets in the jurisdiction, but considerable uncertainty about respondents’ ability to recover costs from those assets — where there is no reciprocal enforcement of judgments legislation between Australia and Ontario, Canada — where there is no evidence about applicant’s assets in Ontario, Canada — appropriate for the quantum of security to be fixed by reference to costs incurred or likely to be incurred in the proceeding — security ordered Legislation: Federal Court of Australia Act 1976 (Cth) s 56
Federal Court Rules 2011 (Cth) r 19.01
Cases cited: Augusta Ventures Limited v Mt Arthur Coal Pty Limited [2020] FCAFC 194; (2021) 384 ALR 340
Austin, Nicols & Co Inc v Lodestar Anstalt [2009] FCA 1228
Dead End Survival, LLC v Marhasin [2019] ONSC 3569
Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2011] NSWCA 84
Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336
Maxim’s Caterers Ltd v Magnona Pty Ltd(No 1) [2010] FCA 450
Division: General Division Registry: South Australia National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Number of paragraphs: 52 Date of hearing: 16 December 2020 Counsel for the Applicant: Mr B Gardiner Solicitor for the Applicant: Piper Alderman Counsel for the Respondents: Mr A Fox Solicitor for the Respondents: DLA Piper Australia ORDERS
SAD 43 of 2020 BETWEEN: C.M.E. BLASTING & MINING EQUIPMENT LTD
Applicant
AND: ROCK TOOL REFURBISHMENT SOLUTIONS PTY LTD (ACN 634 752 953)
First Respondent
BRADLEY BEURS
Second Respondent
AND BETWEEN: ROCK TOOL REFURBISHMENT SOLUTIONS PTY LTD
Cross-Claimant
AND: C.M.E. BLASTING & MINING EQUIPMENT LTD
Cross-Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
2 MARCH 2021
THE COURT ORDERS THAT:
1.Within 21 days, the Applicant ensure that there is in the Piper Alderman trust account funds in the amount of US$220,000, such funds not to be released from the Piper Alderman trust account except:
(a)in satisfaction of an order for costs in favour of the First and Second Respondents, made upon conclusion of the proceeding;
(b)upon conclusion of the proceeding with judgment (including any costs orders) and after satisfaction of any costs orders in favour of the First and Second Respondents; or
(c)with prior written consent of the parties or upon further order of the Court.
2.Within 28 days, the Applicant provide to the First and Second Respondents’ legal representatives evidence of the payment in compliance with order 1.
3.In the event that orders 1 and 2 are not complied with, the proceedings…
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- Case
- [2021] FCA 160
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were multifaceted. Firstly, it had to ascertain the assets available in Australia that could be used to satisfy a potential order for costs. Secondly, if an order for security for costs was appropriate, the court needed to determine the appropriate amount of that security. This involved assessing the likely quantum of costs incurred and to be incurred in the proceeding, and considering whether the security should be fixed by reference to the costs of enforcing a costs order in Ontario, Canada. The court also had to consider the evidence provided by both parties, which included affidavits from experienced legal professionals.
In its reasoning, the court acknowledged that while the applicant had assets in Australia, there was significant uncertainty about their availability to satisfy a costs order. The court noted the absence of reciprocal enforcement of judgments legislation between Australia and Ontario, Canada, which further complicated the enforcement issue. Given these circumstances, the court deemed it appropriate to fix the quantum of security by reference to the costs incurred or likely to be incurred in the proceeding. The court ordered that within 21 days, the applicant must ensure that US$220,000 was held in a trust account and provided evidence of this to the respondents' legal representatives within 28 days. If these orders were not complied with, the proceedings would be stayed pending further order of the court. Additionally, the respondents were granted liberty to apply for further security if the proceeding continued past the completion of evidence. The costs of the interlocutory application were reserved.
The final orders of the court mandated that the applicant must deposit US$220,000 in a trust account within 21 days and provide evidence of this deposit to the respondents' legal representatives within 28 days. Failure to comply with these orders would result in the stay of the proceedings pending further order of the court. The respondents were also granted the liberty to apply for further security if the proceeding continued beyond the completion of evidence. The costs of the interlocutory application were reserved for later determination.
Orders
Orders of the court
1. Within 21 days, the Applicant ensure that there is in the Piper Alderman trust account funds in the amount of US$220,000, such funds not to be released from the Piper Alderman trust account except:
(a) in satisfaction of an order for costs in favour of the First and Second Respondents, made upon conclusion of the proceeding;
(b) upon conclusion of the proceeding with judgment (including any costs orders) and after satisfaction of any costs orders in favour of the First and Second Respondents; or
(c) with prior written consent of the parties or upon further order of the Court.
2. Within 28 days, the Applicant provide to the First and Second Respondents’ legal representatives evidence of the payment in compliance with order 1.
3. In the event that orders 1 and 2 are not complied with, the proceedings are stayed pending further order of the Court.
4. In the event that the proceeding continues past the completion of evidence, the First and Second Respondents have liberty to apply for further security for costs.
5. The costs of the Interlocutory application dated 30 October 2020 be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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