Lafferty v Waterton

Case [2019] FCA 2049


FEDERAL COURT OF AUSTRALIA

Lafferty v Waterton [2019] FCA 2049

Appeal from: Waterton v Lafferty, in the matter of Lafferty [2019] FCA 1267
File number: WAD 452 of 2019
Judge: COLVIN J
Date of judgment: 4 December 2019
Catchwords:

PRACTICE AND PROCEDURE - application for adjournment - alleged misunderstanding about listing - where there would be prejudice to the respondent - application refused

COSTS - application for security for costs - where security sought for the costs of an appeal against a sequestration order - where not demonstrated that there is substantial merit in the appeal - where real risk of injustice to respondent - order for security made

Cases cited:

Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) [1984] FCA 34; (1984) 2 FCR 1

Frigger v Kitay [2019] FCA 624

Gentry Brothers Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405

Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1

Date of hearing: 4 December 2019
Registry: Western Australia
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 27
Counsel for the Appellant: Mr PG Clifford
Solicitor for the Appellant: Armeli & Molony Lawyers
Counsel for the Respondent: Mr MI Lenhoff
Solicitor for the Respondent: Williams & Hughes

ORDERS

WAD 452 of 2019
BETWEEN:

SUSAN JUANITA LAFFERTY

Appellant

AND:

WILLIAM FRANK WATERTON

Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

4 DECEMBER 2019

THE COURT ORDERS THAT:

1.The application for an adjournment is refused.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

WAD 452 of 2019
BETWEEN:

SUSAN JUANITA LAFFERTY

Appellant

AND:

WILLIAM FRANK WATERTON

Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

4 DECEMBER 2019

THE COURT ORDERS THAT:

1.On or before 7 February 2020 the appellant do provide security for the respondent's costs of the appeal by paying the amount of $30,000 into Court.

2.The appeal is stayed until such security is paid.

3.The parties' have liberty to apply to vary these orders, including as to the form of security to be paid.

4.In the event of a failure to comply with order 1, the respondent has liberty to apply for the appeal to be dismissed.

5.The respondent has liberty to apply for an amount of further security.

6.The appellant pay the respondent's costs of this interlocutory application in an amount to be taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLVIN J:

  1. On 4 December 2019 I heard the respondent's application for security for costs in this appeal.  At the outset the appellant sought an adjournment.  I refused that application and granted the application for security.  The following reasons on those applications have been settled from the transcript.

    Application for adjournment

  2. In this matter there is an application for an adjournment of the application for security for costs in the appeal.…

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AGLC
Lafferty v Waterton [2019] FCA 2049
Case
[2019] FCA 2049
Decision Date

CaseChat Overview and Summary

In the matter of Lafferty v Waterton, the Federal Court was tasked with considering two primary applications made by the appellant, Lafferty, in relation to proceedings against him by the respondent, Waterton. The first application sought an adjournment of the hearing date due to an alleged misunderstanding about the listing of the matter. The second application pertained to the respondent's request for security for costs in relation to an appeal against a sequestration order.

The court needed to determine whether the alleged misunderstanding provided sufficient grounds for an adjournment, and if the adjournment would result in prejudice to the respondent. Additionally, the court had to assess the merits of the appeal against the sequestration order to decide if it was appropriate to grant the application for security for costs, given the potential for injustice to the respondent if such security were not provided.

In dismissing the application for an adjournment, the court held that the alleged misunderstanding did not warrant a change to the scheduled hearing date, particularly given the potential prejudice to the respondent. Concerning the application for security for costs, the court found that the appeal did not demonstrate substantial merit, and thus, it was not in the interests of justice to grant the application without security. The court ordered the appellant to provide security for the respondent's costs of the appeal in the amount of $30,000, and the appeal was stayed until such security was paid. The court also outlined various conditions for varying the orders and provided for potential further applications related to security and enforcement.

The court's final orders mandated the appellant to provide the specified security by a set date, stayed the appeal until compliance, and allowed for modifications to the security requirements. Furthermore, it permitted applications for further security and outlined consequences for non-compliance, including the potential dismissal of the appeal. The respondent was also granted liberty to apply for an increase in the security amount, and the appellant was directed to pay the respondent's costs of the interlocutory application.

Orders

Orders of the court

1. On or before 7 February 2020 the appellant do provide security for the respondent's costs of the appeal by paying the amount of $30,000 into Court.

2. The appeal is stayed until such security is paid.

3. The parties' have liberty to apply to vary these orders, including as to the form of security to be paid.

4. In the event of a failure to comply with order 1, the respondent has liberty to apply for the appeal to be dismissed.

5. The respondent has liberty to apply for an amount of further security.

6. The appellant pay the respondent's costs of this interlocutory application in an amount to be taxed if not agreed.

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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