Marastar Pty Ltd v Ileo Pty Ltd

[1989] FCA 527

JUDGMENT No. $22 .... /.,S? .,., ;..

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G73 of 1989

GENERAL DIVISION 1

BETWEEN: MARASTAR PTY LTD

First Applicant

AND: PETER JOHN COLVIN BEETHAM and

WENDY ANNE BEETHAM

Second Applicants

AND: ILEO PTY LTD

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	29 AUGUST 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the respondent's application for security for costs be heard on Monday, 25 September 1989 at 9.15 a.m.;

2.    the orders numbered 2 and 3 made on 22 August 1989 be rescinded;

. ,

3.   any further material to be relied upon by the respondent in its application for security for costs be filed and served by 12 September 1989;

4.    any material in reply thereto be filed and served by 21 September 1989;

5.    the costs of today's hearing, including the costs

of any necessary affidavits, be the

costs in the proceedings.

NOTE :	Settlement and entry of orders is dealt with	,	- , l , - i-,
-
Order 36 of the Federal Court Rules.	I > , . .

PRINCIPAL REGISTRY

0, ' .

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G73 of 1989

GENERAL DIVISION 1

BETWEEN: MARASTAR PTY LTD

First Applicant

AND: PETER JOHN COLVIN BEETHAM and

WENDY ANNE BEETHAM

Second Applicants

AND: ILEO PTY LTD

Respondent

PINCUS J . 29 AUGUST 1989

EX TEMPORE REASONS FOR JUDGMENT

This application came before me on 22 August 1989 when I gave certain directions. Counsel for the applicants then applied for interlocutory relief, and because Mrs Coulin, who then appeared for the respondent, had not had proper notice, I declined

to grant interlocutory relief or to hear the matter further, and

it was adjourned to today for hearing.

It appears from what Mr Matthews for the respondent has told me today that the vessel in respect of which relief is sought had been sold some two weeks before the matter first came before me, in the sense that a contract had been made, the keys had been handed over and the price had been paid. The argument Mr Matthews puts forward is that, firstly, the application was in any event hopeless. He says that is so, because the case is not about the boat; it is about a business. That does not seem to me to be quite correct, because it would be within the power of the Court, and one has known of cases in which the Courts have, by way of what might be described as a partial Mareva injunction, prevented the disposal of an identified asset.

The second and more potent point that Mr Matthews makes is that there was some delay between the time when the applicants were told that the boat had gone, and yesterday, when the applicantsv solicitors indicated that the application would not be pursued. There is, on the other hand, as M Gray for the applicants correctly points out, the fact that it appears I was not told, as I could have been, on 22 August, that the boat had been sold.

Mrs Coulin did say that she thought the boat had been sold, but she did not get instructions to confirm that at the time. The situation is, I suppose, complicated by the fact that the boat remained physically where it was. The circumstances are

have been made as it was on 22 August without any notice. On the	somewhat against the applicants in that the application should not
other hand, that did not really increase the cost, because the parties were at Court anyway, for directions.
The real point is who should pay the costs of today. The order I made for costs in respect of 22 August is that those costs be costs in the proceedings, and no question really arises
about them. As to the costs of today, I think it would be fair if those costs became the respondent's costs in the proceedings. The result would be that, even if the applicants are successful, they will not get today's costs. On the other hand, if the respondent succeeds, it will get them.
The order will therefore be, simply, that the costs of the hearing today, including any necessary affidavits, will be the respondent's costs in the proceedings.
I will direct that the order I made on 22 September for discovery and inspection, being order 2 and order 3, be rescinded; and I will order that the respondent's application for security of costs be heard on Monday, 25 September, at 9.15; and that any further material to be relied on by the respondent in support of that application be filed and served by 12 September; and that any material in reply thereto be filed and served by 21 September
1989. : certify that tlli; and the {WO preceding

paces ar2 a trus copy of tli" reasms for

judyrcnt licrcin of I i rs tbnour

Mr. Justice Pincus &&-

Associate

Dated 2 4 I f : y t /f)f, J