FEDERAL COURT OF AUSTRALIA
Fazio Richards Pty Ltd v Ibis Way Pty Ltd [2016] FCA 1082
Appeal from: Fazio Richards Pty Ltd v Ibis Way Pty Ltd [2016] FCA 308 File number: VID 459 of 2016 Judge: DAVIES J Date of judgment: 29 August 2016 Catchwords: PRACTICE AND PROCEDURE – application for security for costs – application made in the context of an appeal – power of the Court to order security for costs Legislation: Federal Court of Australia Act 1976 (Cth), s 56
Federal Court Rules 2011 (Cth), r 36.09
Cases cited: Clack v Collins (No 1) [2010] FCA 513
Date of hearing: 29 August 2016 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 21 Counsel for the Second Appellant: The Second Appellant appeared in person and on behalf of the First Appellant Counsel for the First and Third Respondents: T D Best Solicitors for the First and Third Respondents SDR Law Counsel for the Second Respondent: R Moore Solicitors for the Second Respondent Logie-Smith Lanyon ORDERS
VID 459 of 2016 BETWEEN: FAZIO RICHARDS PTY LTD (ACN 079 728 662)
First Appellant
PAUL DAMIAN NELSON
Second Appellant
AND: IBIS WAY PTY LTD (ACN 109 368 443)
First Respondent
ICON-IP PTY LTD (ACN 150 725 670)
Second Respondent
PETER STROVER
Third Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
29 AUGUST 2016
THE COURT ORDERS THAT:
1.Order 8 of the Orders made 17 June 2016 be vacated.
2.Until further order, Annexure MAN-2 to the affidavit of Michael Andrew Nurse sworn on 9 June 2016 be maintained as confidential on the Court file and its contents not be published or otherwise disclosed in order to prevent prejudice to the administration of justice.
3.Until further order, Annexure MAN-6 to the affidavit of Michael Andrew Nurse sworn on 9 June 2016 be maintained as confidential on the Court file and its contents not be published or otherwise disclosed in order to prevent prejudice to the administration of justice.
4.The Second Respondent has leave to substitute page 53 of the transcript that appears at Annexure MAN-4 to the affidavit of Michael Andrew Nurse sworn on 9 June 2016, with a redacted copy of that page, the redactions being applied to the two amounts that are referred to at lines 12 and 13 of page 53 of the transcript.
5.The Appellants provide the Respondents’ security for costs in a form acceptable to the Respondents, or in the event of any dispute, in a form acceptable to the Registrar in the amount of $40,000, by 4.00pm on 3 October 2016.
6.If the Appellants do not comply with Order 5 within the time specified in that Order, the appeal be dismissed.
7.The costs of the Respondents’ applications be costs in the appeal.
8.The case management conference listed for 29 August 2016 be adjourned until 25 October 2016 at 2.15pm.
THE COURT…
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- Case
- [2016] FCA 1082
- Decision Date
CaseChat Overview and Summary
The court found that it did have the power to order security for costs in the context of an appeal. It considered the relevant legislative provisions, case law, and the circumstances of the case in determining the appropriate amount of security. The court ordered that the Appellants provide security for costs in the amount of $40,000 by a specified date. It also ordered that certain documents and transcripts be redacted and maintained as confidential to prevent prejudice to the administration of justice. The court further directed the procedure for any future applications for leave to amend the grounds of appeal.
The court ordered that the Appellants provide the Respondents’ security for costs in a form acceptable to the Respondents, or in the event of any dispute, in a form acceptable to the Registrar in the amount of $40,000, by 4.00pm on 3 October 2016. If the Appellants do not comply with this order within the specified time, the appeal will be dismissed. The court also ordered that the costs of the Respondents’ applications be costs in the appeal and that the case management conference be adjourned until 25 October 2016 at 2.15pm. The court directed that any application for leave to amend the grounds of appeal be made returnable on 25 October 2016 at 2.15pm, and specified the deadlines for filing and serving affidavits and submissions in relation to such an application.
Orders
Orders of the court
1. Order 8 of the Orders made 17 June 2016 be vacated.
2. Until further order, Annexure MAN-2 to the affidavit of Michael Andrew Nurse sworn on 9 June 2016 be maintained as confidential on the Court file and its contents not be published or otherwise disclosed in order to prevent prejudice to the administration of justice.
3. Until further order, Annexure MAN-6 to the affidavit of Michael Andrew Nurse sworn on 9 June 2016 be maintained as confidential on the Court file and its contents not be published or otherwise disclosed in order to prevent prejudice to the administration of justice.
4. The Second Respondent has leave to substitute page 53 of the transcript that appears at Annexure MAN-4 to the affidavit of Michael Andrew Nurse sworn on 9 June 2016, with a redacted copy of that page, the redactions being applied to the two amounts that are referred to at lines 12 and 13 of page 53 of the transcript.
5. The Appellants provide the Respondents’ security for costs in a form acceptable to the Respondents, or in the event of any dispute, in a form acceptable to the Registrar in the amount of $40,000, by 4.00pm on 3 October 2016.
6. If the Appellants do not comply with Order 5 within the time specified in that Order, the appeal be dismissed.
7. The costs of the Respondents’ applications be costs in the appeal.
8. The case management conference listed for 29 August 2016 be adjourned until 25 October 2016 at 2.15pm.
THE COURT DIRECTS THAT:
9. Any application for leave to amend the grounds of appeal be made returnable on 25 October 2016 at 2.15pm.
10. The Appellants file and serve any affidavits in support of, and any submissions in relation to, an application for leave to amend the grounds of appeal by 4.00pm on 11 October 2016.
11. The Respondents file and serve any affidavits and submissions in opposition to an application for leave to amend the grounds of appeal by 4.00pm on 18 October 2016.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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