Endormer Pty Limited (in liq) v Australian Guarantee Corporation Limited

[2001] FCA 548

FEDERAL COURT OF AUSTRALIA

Endormer Pty Limited (in liq) v Australian Guarantee Corporation Limited
[2001] FCA 548

PRACTICE AND PROCEDURE – security for costs of appeal.

ENDORMER PTY LIMITED (in liq) & ORS v AUSTRALIAN GUARANTEE CORPORATION LIMITED & ANOR
N 1354 OF 2000

LEE, FINN & CONTI JJ
HEARD IN SYDNEY (BY VIDEO-LINK WITH PERTH AND CANBERRA)
24 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1354 OF 2000

BETWEEN:

ENDORMER PTY LIMITED (in liq)
FIRST APPELLANT

KWIKDAY PTY LIMITED
SECOND APPELLANT

GLENN ROBERT JARRETT
THIRD APPELLANT

DAVID COLIN PATERSON
FOURTH APPELLANT

JARRETT HOLDINGS PTY LIMITED
FIFTH APPELLANT

ALINBOW PTY LIMITED
SIXTH APPELLANT

AND:

AUSTRALIAN GUARANTEE CORPORATION LIMITED
FIRST RESPONDENT

PETER JAMES HEDGE
SECOND RESPONDENT

JUDGES:

LEE, FINN & CONTI JJ

DATE OF ORDER:

24 APRIL 2001

WHERE MADE:

HEARD IN SYDNEY
(BY VIDEO-LINK WITH PERTH AND CANBERRA)

THE COURT ORDERS THAT:

The motion be dismissed and the costs of the motion be reserved.

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 1354 OF 2000

BETWEEN:

ENDORMER PTY LIMITED (in liq)
FIRST APPELLANT

KWIKDAY PTY LIMITED
SECOND APPELLANT

GLENN ROBERT JARRETT
THIRD APPELLANT

DAVID COLIN PATERSON
FOURTH APPELLANT

JARRETT HOLDINGS PTY LIMITED
FIFTH APPELLANT

ALINBOW PTY LIMITED
SIXTH APPELLANT

AND:

AUSTRALIAN GUARANTEE CORPORATION LIMITED
FIRST RESPONDENT

PETER JAMES HEDGE
SECOND RESPONDENT

JUDGES:	LEE, FINN & CONTI JJ
DATE:	24 APRIL 2001
PLACE:	HEARD IN SYDNEY (BY VIDEO-LINK WITH PERTH AND CANBERRA)

REASONS FOR JUDGMENT

THE COURT:

1. The Court, after considering the motion and supporting material filed by the respondents and the submissions of the parties, has determined that the application for security for costs should be refused.

2. Without deciding the point, the application may have been granted had it been brought timeously but the delay in bringing the application is of such magnitude that the Court is of the view that the interests of justice will not be served by making an order for security of costs in this case.

3. The efficient administration of justice depends upon parties to litigation attending to the requirements of the Rules, and to the directions of the Court, in respect of the management of litigation in trial and appellate proceedings. With regard to appeals, where three Judges are required to set aside time to hear an appeal set down for hearing, the vacation of a date for the hearing of that appeal involves a multiple waste of judicial time, a limited resource.

4. It is not to be thought that an appeal hearing may be set aside at will.

5. It is conceded by the respondents that if the motion were granted, the effect thereof would be to bring a halt to the appeal and, therefore, vacation of the appeal date. In these circumstances, if the respondents intended to seek an order for security for costs, the time to disclose and act on that intention was as soon as practicable after service of the notice of appeal, and certainly by the callover conducted by the Court to set the date of the appeal hearing.

6. Furthermore, the progress of the appeal has advanced to the point where the appeal books are about to be bound and distributed.

7. In all the circumstances, it is inappropriate to make an order that security for costs be provided by the appellants at this late stage. The motion will be refused.

8. The costs of the motion may be dealt with on disposal of the appeal and, therefore, costs will be reserved.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Finn & Conti.

Associate:

Date:               

Counsel for the Respondents:	Mr S Rushton, SC
Solicitor for the Respondents:	Clayton Utz
The Third Appellant appeared in person.
Date of Hearing:	24 April 2001
Date of Judgment:	24 April 2001