Canberra Residential Developments Pty Ltd v Brendas - [2009] FCA 745

FEDERAL COURT OF AUSTRALIA
Canberra Residential Developments Pty Ltd v Brendas
[2009] FCA 745
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LTD ACN 098 326 375 v SPIROS BRENDAS, KENOSS PTY LTD ACN 008 544 232 and CANBERRA LAND DEVELOPMENTS PTY LTD ACN 103 879 823
ACD 12 of 2009
RARES J
29 JUNE 2009
SYDNEY (VIA VIDEO LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 12 of 2009

BETWEEN:
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LTD ACN 098 326 375
Appellant

AND:
SPIROS BRENDAS
First Respondent

KENOSS PTY LTD ACN 008 544 232
Second Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD ACN 103 879 823
Third Respondent

JUDGE:

RARES J

DATE OF ORDER:

29 JUNE 2009

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:
1.The appellant provide security to the first and second respondents for the costs of the appeal, including the motion heard today, in the sum of $120,000, such security to be provided in a form acceptable to the registrar on or before 19 July 2009, failing which the proceedings be stayed until further order.
2.The appellant pay the costs of the motion filed on 26 March 2009 fixed in a gross sum of $6,500.
3.The fixed sum for costs of $6,500 in Order 2 be payable forthwith if the appellant fails to provide security within the time provided in Order 1, and to the extent that that sum is recovered, by the first and second respondent, the amount of security required under Order 1 abate.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 12 of 2009

BETWEEN:
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LTD ACN 098 326 375
Appellant

AND:
SPIROS BRENDAS
First Respondent

KENOSS PTY LTD ACN 008 544 232
Second Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD ACN 103 879 823
Third Respondent

JUDGE:

RARES J

DATE:

29 JUNE 2009

PLACE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

This is an application for security for costs in proceedings in the appellate jurisdiction of the Court. The appeal is brought from the decision of a judge of the Court: Canberra Residential Developments Pty Ltd v Brendas (No 5) (2009) 69 ACSR 435. It is common ground that the appellant should give security for costs and the only substantive issue before me is the amount of security that should be given.
The first and second respondents filed a motion for security on 26 March 2009, a little over a month after the notice of appeal was filed. The notice of appeal raised over 19 grounds of appeal, some of them involving a number of subparagraphs and sought 11 different orders including, an order for a rehearing by a different judge. On 13 March 2009 the first and second respondents filed a notice of…

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.

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Details

Case: [2009] FCA 745
Decision Date: 29 June 2009

CaseChat Overview and Summary

Canberra Residential Developments Pty Ltd, the appellant, sought to appeal against a decision made by the first and second respondents in the Supreme Court of the Australian Capital Territory. The nature of the dispute involved the enforcement of an agreement and the associated costs related to the appeal process. The court was tasked with addressing the financial obligations of the appellant towards the respondents, including the provision of security and the payment of costs.

The primary legal issue before the court was whether the appellant should be required to provide security for the costs of the appeal, as well as the amount of such security, and whether the costs incurred by the respondents should be paid by the appellant. The court also needed to determine the consequences if the appellant failed to comply with the orders regarding the provision of security and the payment of costs.

In its reasoning, the court held that the appellant must provide security to the respondents for the costs of the appeal. The court found that the sum of $120,000 was appropriate for the security, which had to be provided in a form acceptable to the registrar by a specified date. If the appellant failed to provide the required security, the proceedings would be stayed until further order. Additionally, the court ordered the appellant to pay the costs of a previous motion filed by the respondents, amounting to $6,500. This amount was to be paid forthwith if the appellant did not provide the security within the stipulated time. The court clarified that if the costs were recovered from the appellant, the amount of the required security would be reduced accordingly.

The final orders of the court mandated that the appellant provide security for the appeal costs, pay the specified sum for the motion costs, and face consequences if these obligations were not met. This ruling ensured that the respondents were protected financially and that the appellant's appeal process was subject to the court's conditions regarding costs and security.

Orders

Orders of the court

1. The appellant provide security to the first and second respondents for the costs of the appeal, including the motion heard today, in the sum of $120,000, such security to be provided in a form acceptable to the registrar on or before 19 July 2009, failing which the proceedings be stayed until further order.

2. The appellant pay the costs of the motion filed on 26 March 2009 fixed in a gross sum of $6,500.

3. The fixed sum for costs of $6,500 in Order 2 be payable forthwith if the appellant fails to provide security within the time provided in Order 1, and to the extent that that sum is recovered, by the first and second respondent, the amount of security required under Order 1 abate.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RARES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: RARES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 12 of 2009

JUDGE:	RARES J
DATE OF ORDER:	29 JUNE 2009
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO CANBERRA)

JUDGE:	RARES J
DATE:	29 JUNE 2009
PLACE:	SYDNEY (VIA VIDEO LINK TO CANBERRA)