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
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:
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
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
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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