Commonwealth of Australia v Education Australia (Formerly Takama Holdings P/L trading as Wessex College of English & Wessex College)

[1993] FCA 1006

IN THE FEDERAL COURLQF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT-RE-GISTRY	)
-.	No. NG 275 of 1992

)

GENERAL DIVISTOJ	)
COMMONWEALTH OF AUSTRALIA
RECEi	Applicant

AND :  EDUCATION A U S T R A L I A

(PORMERLY TAKAMA HOLDINGS )

FEDERAL COURT O,

AUSTRALIA	PTY LTD tradina as WE_S-SB
PRINCIPAL
REGISTRY	COLLEGE OF ENGLISH and
WE S SEX CQLL-E-GE Respondent

2 December 1993

REASONS FOR JUDGMENT

LOCKHART J.

This is a motlon for a stay on execution of a judgment of a judge of the Court (Beaumont J. ) given on 10 November 1993.

The judgment of his Honour is a final judgment and, as I understand it, a notice of appeal has been filed from his Honour's judgment. Early next year the appeal will be listed for the purpose of fixing a hearing date with a view to the appeal being heard in the May Full Court sittings of the Court in Sydney.

below.

His Honour's ludgment was that there be judgment for the Commonwealth of Australia in the sum of $2,897,344.90. He also dismissed the cross claim of the appellant, Education Australia Pty Limited, formerly Takama Holdj.ngs Pty Limited, trading as Wessex College of English and Wessex College, and ordered the appellant to pay the costs of the Commonwealth of the proceedings

The stay is not opposed by the Commonwealth, provided undertakings are proffered by the appellant in respect of four matters:

1.    That an undertaking be furnished by the appellant that it will prosecute the appeal with all due expedition and diligence;

2.    That it will provide security for the Commonwealth's costs of the appeal in an agreed sum, or falling agreement as may be determined by the Court, and in a form as agreed between the parties, or failing agreement as may be determined by the Court;

1. That the appellant undertake that it will not deal with or dispose of any of ~ t s assets otherwise than in the usual course of the carrying on in the usual way of its ordinary business;

4. That the appellant will provide security for the Commonwealth's costs of the proceedings at first instance.

I do not regard the fourth matter as one that it is appropriate to impose upon the appellant as a term of its stay, but the other three matters are, I thlnk, appropriate.

As counsel for the appellant is not in a position to proffer the undertakings at the moment T indicate that if undertakings to the effect to those which I have briefly outlined are provided by the appellant then, in my view, the court should order that the stay of execution of the judgment of Beaumont J. of 10 November 1993 should be granted. If the undertakings are not furnished then I would not be disposed to grant the stay.

For the purposes of allow~ng appropriate instructions to be

obtained and glven, the matter will stand adjourned until 2.15
on Monday next, 6 December 1993.

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.

Dated: 2 December 1993

Counsel for the Applicant	A Sullivan QC F Kunc
Solicitors for the Applicant :	Australian Government Solicitor
Counsel for the Respondent	S D R0bb QC J Needham
Solicitors for the Respondent :	De Rubeis & Associates
Date of Mearlng	2 December 1993
Date of Judgment	2 December 1993