M. M. International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd

[2018] ACTSC 378

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

M. M. International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd

Citation:

[2018] ACTSC 378

Hearing Date:

21 November 2018

Decision Date:

21 November 2018

Before:

Burns J

Decision:

See [6]

Catchwords:

APPEALS – Application in proceeding – application for costs payable by plaintiff to the defendants to be fixed – application that the Court release the security for costs to the defendants – applicant company in liquidation – costs incurred exceed amount currently held as security for costs

Parties:

M. M. International (Australia) Pty Ltd (Applicant/Plaintiff)

Aerial Consolidated Transport Ltd (First Respondent/First Defendant)

Aerial Capital Group Ltd (Second Respondent/First Defendant)

Representation:

Counsel

No appearance (Applicant/Plaintiff)

J Raine (Respondents/Defendants)

Solicitors

Griffin Legal (Respondents/Defendants)

File Number:

SCA 71 of 2016

Decision under appeal:

Court/Tribunal:           ACT Magistrates Court

Before:           Magistrate Morrison

Date of Decision:       17 August 2016

Case Title:     M. M. International (Australia) Pty Ltd v Aerial Consolidated Transport

Court File Number:     CS 1141 of 2014

BURNS J

1.        I granted leave to the defendants to file the amended application in the proceedings, in Court at the hearing of the application on 21 November 2018.

2.        The application is that:

(a)       the costs payable by the plaintiff to the defendants in accordance with order 29 of the court orders made on 11 December 2017 be fixed; and

(b)       secondly, that the costs referred to in that order be fixed in the amount of $12,000 or such other amount as determined by the court; and

(c)       thirdly, that the court release the security for costs to the defendants in satisfaction of that order.

3.        As I understand it, the principal application is that the costs be fixed in the sum of $12,000.

4.        This was a matter in which an order for security for costs was made with respect to the appeal which had been proposed by the applicant company. The applicant company is currently in liquidation, indeed if it has not been entirely wound up. The proceedings have been brought to an end. There would be no point, in my opinion, in requiring the defendants to undergo a process of having their costs assessed. All that would do would be to reduce the amount that would ultimately be available to satisfy the costs of the defendants in meeting the present proceedings. In addition to which, I note that the liquidator of the company does not oppose the orders which are currently sought.

5.        I am satisfied on the affidavit material before me, and in particular the affidavit of Sharon Lee Drew sworn on 30 October 2018, that the costs incurred by the defendants significantly exceed the amount which is currently held as security for costs.

6.        For those reasons, I propose to make orders 1, 2 and 3 as sought in the amended application in proceedings filed in court on 21 November 2018, as detailed in [2] (a), (b) and (c) above.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 17 June 2019