Koryar, Philip & Ors v Perry, Donald N & Anor (No.1)

[1997] FCA 1467

FEDERAL COURT OF AUSTRALIA

Practice & Procedure - application for security for costs.

Lucas v Yorke (1983) 50 ALR 228 - cons.

PHILIP KORYAR, ELMA KORYAR AND JOHN CLARKE TRADING AS "PHILMA EXPORT FISHERIES CO" V DONALD N PERRY AND GRAHAM S ALLEN

NG 756 OF 1997

REASONS FOR JUDGMENT (NO. 1)

JUDGE:         BEAUMONT J.
PLACE:         BRISBANE
DATE:           21 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 756  of   1997

BETWEEN:

PHILIP KORYAR, ELMA KORYAR AND JOHN CLARKE TRADING AS "PHILMA EXPORT FISHERIES CO"
PLAINTIFFS

AND:

DONALD N PERRY
FIRST DEFENDANT

GRAHAM S ALLEN
SECOND DEFENDANT

JUDGE:

BEAUMONT J.

DATE OF ORDER:

21 NOVEMBER 1997

WHERE MADE:

BRISBANE

ORDERS:

1. Unless on or before 27 November 1997 the plaintiffs provide security in the sum of $5,000 to secure any order for costs that might be made against the plaintiffs and in favour of the defendants, the security to be in a form satisfactory to the Registrar in default of agreement as to the form of the security, order that these proceedings be stayed.

1. Note that security in form of a bank guarantee would be a proper form of security.

1. Costs of security application to be defendants’ costs in the principal proceedings.

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	NG 756 of 1997

BETWEEN:

PHILIP KORYAR, ELMA KORYAR AND JOHN CLARKE TRADING AS "PHILMA EXPORT FISHERIES CO"
PLAINTIFFS

AND:

DONALD N PERRY
FIRST DEFENDANT

GRAHAM S ALLEN
SECOND DEFENDANT

JUDGE:	BEAUMONT J.
DATE:	21 NOVEMBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT (N0. 1)

BEAUMONT J:

Before the Court is an application by the defendants for security for costs. 

There is evidence that the plaintiffs are resident in the Solomon Islands so that prima facie a case for security is made out. 

The claim for security is opposed on two main grounds.

In the first place, the plaintiffs say that the defendants have been guilty of unreasonable delay in making this application. 

The history of the principal proceedings is that they were instituted in September 1997.  The present application was foreshadowed in a letter written by the defendants’ solicitors to the plaintiffs’ solicitors dated 23 October 1997.  Their intention to make the application was confirmed by counsel for the defendants in a directions hearing in the matter on 31 October.  In the circumstances, there has been no delay sufficient to disentitle the defendants to security for costs.

The other main ground of opposition is that the defendants have contributed to the plaintiffs’ impecuniosity by virtue of the defendants’ alleged unlawful conduct arising out of the joint venture arrangement now sued upon by the plaintiffs. 

I accept, of course, that in principle, this kind of matter can be relied upon as a discretion necessary to a claim for security for costs (see Lucas v Yorke (1983) 50 ALR 228).

However, the application of this principle in the present case is a matter of some difficulty.  On any view, the present litigation is complex and it is already apparent that many serious issues of fact and law of a complicated kind will arise for determination at the final hearing.  For the purposes of this motion, there is before the Court an outline of some of the material that will apparently be relied upon at the trial.  Of necessity, the material is sparse.  Given the brevity of the material, it is simply impossible to form any real view, one way or the other, on the plaintiffs’ assertion that the defendants’ conduct, in effect, brought about impecuniosity on the part of the plaintiffs.

In my opinion, the defendants have made out the case for security for costs in principle.

As to the amount of the security, on behalf of the defendants it is submitted that security in the sum of $5,000 should be provided in an appropriate form.  Bearing in mind that I have already, on 17 October, ordered that the plaintiffs pay the defendants’ costs thrown away by reason of the adjournment of the proceedings on that day, I think that the amount of $5,000 is a reasonable sum for present purposes.  I propose to make an order for security accordingly.

I make the following orders:

1. Unless on or before 27 November 1997 the plaintiffs provide security in the sum of $5,000 to secure any order for costs that might be made against the plaintiffs and in favour of the defendants, the security to be in a form satisfactory to the Registrar in default of agreement as to the form of the security, order that these proceedings be stayed.

1. Note that security in form of a bank guarantee would be a proper form of security.

1. Costs of security application to be defendants’ costs in the principal proceedings.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             21 November 1997

Counsel for the Plaintiffs:	T Tuckerman
Solicitor for the Plaintiffs:	McLaughlin & Riordan
Counsel for the Defendants:	A Phillipeides
Solicitor for the Defendants:	Duncan & Swanston
Date of Hearing:	21 November 1997
Date of Judgment:	21 November 1997