Joseph Hedrlin v Proprietors of Strata Plan 367

[1983] FCA 200

IN THE FEDERAL COURT OF AUSTRALIA 1

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BANKRUPTCY DISTRICT OF THE STATE 1

NO. 448 Of 198'3

OF NEW SOUTH WALES AND THE 1 1

AUSTRALIAN C PITAL ERRITORY 1

BETWEEN: JOSEPH EDRLIN

Appellant

AND : PROPRIETORS OF STRATA PLAN 367

Respondent

Morling J.

4 August 1983

EX TEM~ORE JUDGMENT

This is an application under Order 52 rule 20 of the

Federal Court rules. The application is brought by the

respondent to an appeal to the Full Court from a decision

of Lockhart J.

The respondent made an application for a bankruptcy

notice to be issued against the appellant. The notice was

based on an order of the Supreme Court of New South Wales

that the appellant should pay to the respondent its costs

of proceedings in that court.

A bankruptcy notlce dated 20 November 1981 was

served on the appellant, who thereupon filed an affidavit

under s.41(7) of the Bankruptcy Act claimlng that he had

a counter claim, set off or cross demand equal to or

exceeding the sum specified in the bankruptcy notice.

On 14 April 1982 Lockhart J held that he was not

satis€ied that the appellant had such a counter claim, set

off or cross demand. The appellant has appealed from

that decision to the Full Court.

The papers disclose that the appellant has not

complied with the rules regarding the prosecution of the

appeal. However, that matter is not before me today.

All that is before the court today is a mot on that the

appellant give security for the costs of the appeal. In

support of the motion, evidence has been filed which

discloses fairly clearly that the appellant has failed

to pay the costs awarded against him in the Supreme Court.

As I have said, it is that failure which gave rise to the

issue of the bankruptcy notice.

However, there is no evidence at all before me

that the appellant will not be able to pay the respondent's costs of the appeal should an order be made in its favour.

Mr Bush, who appeared for the respondent, has

frankly conceded that it is not his cllent's case that

the appellant does not have sufficient assets to meet any

order for costs that may be made on the hearing of the

appeal. The assertion which is made is that the

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I	appellant will refuse to pay the respondent's costs. This
assertion is made because of the appellant's past refusal
to pay costs ordered against him.

Clearly, I have jurisdiction to direct that the

appellant give security for costs under Order 52 rule 20.

But I do not think an order should be made in circumstances

where it is not shown that the appellant will be unab e to

meet any order for costs which may be made against him.

If an appellant adopts the attitude that he will

not pay costs awarded against him, then the usual processes

of thr law will be zvailable to the respondent to enforce

any order for costs in his favour. Authorities such as

stock and Another v. Woods and Another (1957) Q.S.R. 62 at p.55

and Brown v Braven (1957) Q.L.R. at p.49 make it clear that

it is a party's inabiiity to pay cc~sts, rather than his

unwillingness to pay costs, which	1 s the relevant matter
for consideration.

Gnder those circunstances, although I have

considerable sympathy for the respondent, I do not think

I should accede to this motion. It will, therefore, be

dismissed.

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