Deangrove Pty Ltd v Buckby

[2002] FCA 1353

FEDERAL COURT OF AUSTRALIA

Deangrove Pty Ltd v Buckby [2002] FCA 1353

DEANGROVE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) & ANOR v RICHARD WILLIAM BUCKBY
N 501 of 2002

SACKVILLE J
SYDNEY
1 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 501 OF 2002

BETWEEN:

DEANGROVE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED)
APPLICANT

AND:

RICHARD WILLIAM BUCKBY
FIRST RESPONDENT

JOHN DENNIS
SECOND RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

1 NOVEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The respondents’ motion filed 26 September 2002 be stood over to 10 December 2002.
2. The applicant pay the respondents’ costs of the hearing of 1 November 2002 on an indemnity basis.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1142 OF 2000

BETWEEN:

DEANGROVE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED)
APPLICANT

AND:

RICHARD WILLIAM BUCKBY
FIRST RESPONDENT

JOHN DENNIS
SECOND RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me a motion filed by the respondents seeking an order for security for costs.  In the alternative, the respondents seek an order requiring the two directors of the applicant to provide an indemnity in respect of legal costs and expenses incurred by it for the purposes of the proceedings.

2. The respondents’ motion also seeks an order transferring the proceedings to the Queensland District Registry.  However, Mr Speakman, who appears on behalf of the respondents, is content for that aspect of the motion to stand over.

3. The applicant now seeks an adjournment of the application for security for costs.  The evidence adduced in support of that application is the same as that which has been adduced in support of the applicant’s motion to vacate the hearing dates in separate proceedings, N 1142 of 2002.  This is the applicant’s second request to adjourn the respondents’ motion.  I adjourned the motion on 2 October 2002, because Mr Gye, who appeared for the applicant on that occasion, was not ready to proceed. 

4. Mr Speakman has submitted that the adjournment should not be granted because there is no need for it, an adjournment would not be of any utility, and the respondents would suffer some prejudice.

5. I think there is force in Mr Speakman’s submissions.  The applicant, and those standing behind it, are entirely responsible for the failure to be ready today.  The issues were identified on the last occasion the matter was before the Court (2 October 2002).  It cannot have been a major task to address the question of whether there is evidence that might be adduced to resist the application for security for costs.

6. Mr Gye, who again appears on behalf of the applicant, accepts that the evidence makes out a prima facie case for an order that the applicant provide security for costs.  However, he says that he wishes to have the opportunity to explore whether the applicant might be able to demonstrate that its impecuniosity is the result of the alleged conduct on the part of the respondents.  He asks for one last opportunity to do so.

7. I have decided, with some hesitation and considerable reluctance, to accede to the adjournment application.  It is, I think, preferable that the applicant have the opportunity to put its case.  The respondents can be protected by an appropriate costs order.

8. I will stand the motion over, so far as it deals with the application for security of costs, for a short time.  I make it clear to the applicant and those standing behind it that the motion will proceed on the adjourned date.  I propose to make directions to ensure that any evidence relied upon by the applicant is filed promptly.

9. The applicant must pay the respondents’ costs of today on an indemnity basis.  I shall reserve to the respondents the right to make any application with respect to those standing behind the applicant providing security in respect of this costs order, should they be so advised.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:             1 November 2002

Counsel for the Applicant:	Mr R Gye
Solicitor for the Applicant:	Axtens & Co
Counsel for the Respondent:	Mr M Speakman
Solicitor for the Respondent:	Clarke & Kann
Date of Hearing:	1 November 2002
Date of Judgment:	1 November 2002