Khoury v Bradmill Group Ltd

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G511 of 1987

GENERAL DIVISION

-- BETWEEN :

Manufacturing and formerly
known as Radna Clothing

Manufacturing

Applicant

AND :

~ BRADMILL GROUP LIMITED

Respondent

CORAM: M. L. FOSTER, J.

DATE : 17 December, 1987.
-

REASONS FOR JUDGMENT

HIS HONOUR: These proceedings were set down for a full interlocutory hearing in which interlocutory relief in the

anticipated would be made today. FEDEAALCOUHTOF

nature of an injunction was sought by the applicant. It

is apparent from the file that a timetable was set down on
a fairly urgent basis and that affidavits, which are quite

numerous and lengthy, have been prepared on the part of the

respondent in opposition to the appl ication, which it was

The applicant has only today indicated that it

abandons the claim for interlocutory relief. It appears
that it became aware of certain facts on discovery which
played a part in the forming of that decision and that those
facts only became available quite recently. However, in
all the circumstances, I do not see that that fact carries
sufficient weight to produce a different result from what
must be regarded as the usual and proper result in a
situation such as this; namely, that the applicants, in
abandoning their application, renders themselves liable
for the respondent's costs thrown away as a result of the

application not proceeding.

In the circumstances, the application for

interlocutory relief having been abandoned, the application
is dismissed and I order that the applicants' pay the

respondent's costs.

So far as the application for security for costs

is concerned, I am satisfied that it is necessary for the applicants to file an affidavit upon which to base their

submissions that no such order should be made. It seems

that some misunderstanding has occurred as to the listing of

that matter today, in any event.

Clearly the applicants are not in a position to

proceed. I consider that the appropriate order to make in ,
l

that case is that it be stood-over, restorable on two days

notice and that the costs of today be reserved.

1. cert,ify that t h i n and the I plaoalitrg
pages are a true copy c d the reason8 fi,,r
j udgmeut herein of Ilia Honour, Mr. Just&
lbtoster.

CaseChat Overview and Summary

In the case of Khoury v Bradmill Group Ltd, the applicant, Manufacturing, sought interlocutory relief in the form of an injunction against the respondent, Bradmill Group Ltd. The proceedings were initially set for a full interlocutory hearing to address the application for an injunction, but Manufacturing abandoned the application upon discovering certain facts that had only recently come to light. The matter was heard in the Federal Court of Australia, New South Wales District Registry. The judge, M. L. Foster, J., considered the circumstances of the case and the abandonment of the application for interlocutory relief by the applicant.

The primary legal issue before the court was whether the applicant's abandonment of the application for interlocutory relief should result in the imposition of costs upon the applicant. The judge noted that the abandonment of the application rendered the applicant liable for the respondent's costs incurred due to the application not proceeding. The judge also considered the applicant's request for security for costs and the necessity for the applicant to file an affidavit to support their submission on this matter.

In delivering the judgment, the judge concluded that the abandonment of the application for interlocutory relief by the applicant warranted the imposition of costs upon the applicant. The judge further considered the application for security for costs and found that it should be stood-over, with the option to restore it with two days' notice, and that the costs of the hearing be reserved. The judge ordered that the applicant pay the respondent's costs and that the application for security for costs be stood-over, with the ability to restore it with two days' notice, and that the costs of the hearing be reserved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established