Gaye (No 1) Pty Ltd v Allan Rowlands Holdings Pty Ltd

[1992] HCATrans 329

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D6 of 1992

B e t w e e n -

GAYE (NO. 1) PTY LTD

Respondent Appellant

and

ALLAN ROWLANDS HOLDINGS

PTY LTD

Applicant Respondent

Application for security for

costs

TOOHEY J

(In Chambers)

Gaye(2) 1 12/11/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 NOVEMBER 1992, AT 9.31 AM

Copyright in the High Court of Australia

MR S.R. SOUTHWOOD: If Your Honour pleases, I appear on

behalf of the respondent applicant in this matter.

(instructed by Ward Keller)

MR S.F.C. WILCOX:  May it please the Court, I appear for the

respondent to the application. (instructed by

Stedman Cameron)

HIS HONOUR:  Mr Wilcox, while you are on your feet, I have

received a copy of an affidavit.	I am not clear
whether the affidavit has been sworn or not.	It
purports to have been made by Ms Sideris.

MR WILCOX:  Your Honour, I have that same copy. My copy is

actually a facsimile from Melbourne and it purports

to be sworn. That is to say it ends up:

Sworn at Melbourne by the above-named

dependent, 11 November -

and there follows a signature -

before me -

and a name, I think the name is "Hassett" -

a solicitor holding a current practising

certificate.

HIS HONOUR:  I will just check with Mr Millar. I am told

Mr Wilcox that the registry accepted this document.

The one that I have does not have a signature

either of the dependent or the witness but on the

undertaking that it would be filed some time this

morning.

MR WILCOX:  I will see that that is done, Your Honour.

HIS HONOUR:	Mr Southwood, have you seen that document?
MR SOUTHWOOD:	No.  I know the contents of that document,

Your Honour. It was faxed through to my

instructing solicitors. My learned friend and I

have had some discussions this morning and we think

we are able to resolve it by agreeing some form of

security over the generator which is referred to in

that affidavit. So what we would seek this

morning, Your Honour, is an adjournment for a
fortnight, at which, hopefully, minutes of a

consent order could be handed up in terms of the

security.

HIS HONOUR:  Do you need that time? Could it not be done

this morning? I am quite happy to adjourn for a

while and give you an opportunity to work it out if

you think you can do so. In the end, probably the

Gaye(2) 2 12/11/92

order that I would make is that security be

provided in a form determined by the Registrar.

That is what the rules contemplate.

MR SOUTHWOOD:  Yes, we would be happy with an order to that

effect.

HIS HONOUR:  It saves you corning back and saves everybody's

time.

MR SOUTHWOOD:  Yes.

HIS HONOUR: Nevertheless, there still has to be, I think,

an amount determined. Are the parties in

agreement? That should not be difficult to agree

if you have in mind a particular form of security.

MR WILCOX:  It is alleged, Your Honour, that the generator

is worth $13,000. I do not purport to have

evidence of that, except one person's understanding

that it is worth $13,000. My learned friend's

client wishes to have an opportunity to check that

it is worth that sum and also that it is not

encumbered.

HIS HONOUR:  Yes, I must say that thought crossed my mind.

I assume that it is not, without knowing, but

otherwise it is not a very adequate form of

security.

MR WILCOX:  No, it is not. Your Honour, we would be happy

if the sum of $13,000 could be agreed in the form

of a security over the generator.

HIS HONOUR:  I think we ought to be clear what we are doing

or what we may be doing, Mr Wilcox. I suppose,

without referring the matter to the Registrar, I

could make an order by consent that security be

given in a particular manner. The alternative

would be to fix an amount to be given by way of

security, again by consent, and then leave the form

of the security to the Registrar. Order 70 rule 7
contemplates that the Court makes an order or may

make an order:

that the appellant give security, within a

time to be limited by the order and in such

amount as the Court or a Justice may fix -

and that ordinarily would be the end of the Court's

role. Then subrule (2) picks up the matter by

providing that:

Security may be given by payment into Court or

in such manner as the Registrar may approve.

Gaye(2) 12/11/92

So in the ordinary course, if I was to make an

order for security, it would be in an amount, and

direct then that the form of the security be in

such manner as the Registrar approve. Then whether

it is by way of specific order that security be

over the generator, or whether the parties agree

between themselves that that is the way in which it

is to be done, perhaps is a matter rather for the

Registrar. But I do not see any reason why I

cannot make an order this morning.

MR WILCOX:  No. If it could be disposed of this morning,

obviously there is saving in time.

HIS HONOUR:  I think all I need from counsel is agreement as

to the amount.

MR SOUTHWOOD:	Yes.
MR WILCOX:	Would Your Honour be prepared to say a maximum

sum of 13, or if it is necessary to fix a

particular sum - - -

HIS HONOUR:	I think I have to fix it.
MR WILCOX:	Then $13,000.
MR SOUTHWOOD:	Yes, if it could be fixed at $13,000,

Your Honour, and then if it could be left to the

Registrar, if Your Honour pleases.

HIS HONOUR:  If there are problems no doubt parties can

return to the Court.

MR WILCOX:  I think the burden of what the respondent wishes

to put, Your Honour, is that for liquidity reasons

it is obviously better from the respondent's point

of view, if it is satisfactory to the applicant,

that the security be over an asset rather than that

the company has to borrow that sum and leave it in
the Court pending the hearing of the appeal.	I

would be hoping to avoid an order that the security

be in the form of cash deposit. If Your Honour

leaves it open to the Registrar to accept security

over an asset in lieu of a cash deposit, then

really that is all I seek, Your Honour.

HIS HONOUR: Well, what I would do, subject to anything

counsel may wish to say is order that the appellant

provide security in the sum of $13,000 in such

manner as the Registrar may approve.

MR WILCOX:	As Your Honour pleases.
MR WILCOX:	As Your Honour pleases.

Gaye(2) 4 12/11/92

HIS HONOUR:  And then, presumably, if the parties reach

agreement as to a specific form of security, that

may avoid any further appearance.

MR WILCOX: If the Court pleases, yes.

HIS HONOUR:  And what about the costs of today's

application?

MR SOUTHWOOD:  In terms of the costs of today we would

ordinarily seek costs, Your Honour. There is a

difficulty with that, however, in that there was

not the usual letter of demand sent in this case,

so we would simply ask that costs be costs in the

appeal.

MR WILCOX:  We would consent to that.

MR SOUTHWOOD: If Your Honour pleases.

HIS HONOUR: That seems sensible, very well. Before I

enunciate the order, the application speaks for

21 days, is that enough time for you?

MR WILCOX:	Yes, it is, if Your Honour pleases.
HIS HONOUR:	In that case there will be an order that,

within 21 days, the appellant provide security for the respondent's costs of the appeal in the sum of

$13,000 in such manner as the Registrar may

approve, and there will be a further order that the

costs of the motion for security be costs in the

appeal.

MR WILCOX: If Your Honour pleases.

MR SOUTHWOOD: If the Court pleases.

HIS HONOUR:  Nothing further?

MR WILCOX:  No, thank you, Your Honour.

MR SOUTHWOOD:	No, Your Honour.
HIS HONOUR:	We will adjourn.

AT 9.40 AM THE MATTER WAS ADJOURNED SINE DIE

Gaye(2) 12/11/92