Marelic v Comcare - [1993] FCA 599

Attention: Judgments Clerk

Please find herewith two (2)
iudcrments in the matter of
ist-call Video Rights Ltd. v.

BRISBANE

CBL Video Pty. Ltd. G181 of 1992.
They are dated respectively
9 August , 19 9 3 and- l9 ~ u ~ u s t ,
1993. There is to be NO

DISTRIBUTION of these ?dgments.

With thanks/! .'I .l

JUDGES' CHAMBERS
FEDERAL COURT OF AUSTRALIA
ADELAIDE STREET

JUDGMENT No. ........ ...,. 549, ,..,. ,., 93
IN THE FEDERAL COURT OF AUSTRALIA
OUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION No. G181 of 1992
BETWEEN:
IST CALL VIDEO RIGHTS LTD.
(A.C.N. 010 875 340)

- AND:
CBL VIDEO PTY. LTD.
(A.C.N. 011 024 721)

Respondent

JUDGE MAKING ORDER Cooper J.
WHERE MADE: Brisbane
DATE OF ORDER: 19 August, 1993
MINUTES OF ORDER

THE COURT ORDERS:
1. That the application to vacate the orders for security for costs, a stay pending provision of security and costs all made on 9 August, 1993 is dismissed.

The applicant pay the respondent's costs of the application to be taxed,

if not agreed. - 2 SEP 1993

FEDERAL COURT OF

AUSTRALIA
PRINCIPAL i

-TRY .

- Note: Settlement and entry of orders is dealt with in Order 36 of the Federal &urt
Rules.

IN THE FEDERAL COURT OF AUSTRALIA
OUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION No. G181 of 1992
BETWEEN:
IST CALL VIDEO RIGHTS LTD.
(A.C.N. 010 875 340)

- AND:

CBL VIDEO PTY. LTD.
(A.C.N. 011 024 721)
Cooper J.
Brisbane
19 August, 1993
REASONS FOR JUDGMENT
This is an application to vacate an order for security for costs made by

me on 9 August, 1993 which order I stayed to enable this application to be made.
The basis upon which the application is brought is an allegation that

between the hearing of the original application for security for costs and the delivery
of judgment the business of the respondent has been allowed to run down so that if the applicant succeeds on the principal application the respondent company will be a mere shell against which no judgment can be effectively executed.
The evidence establishes that a company, Eagle Entertainment Pty. Ltd.,

was incorporated on 13 June, 1991. On 12 November, 1991 Mr. and Mrs. Shannon
were appointed directors of the company. On 19 March, 1993 the company changed its name to Peacock Films Pty. Ltd. On 21 May, 1993 Peacock Films Pty. Ltd.

granted a fixedtfloating charge to Esanda Finance Corporation Ltd. In June, 1993
Peacock Films Pty. Ltd. began to advertise for sale videos in the trade magazines. In
June, 1993 and thereafter the number of new releases offered for sale in the same
magazines by the respondent fell.
Since June, 1993 Peacock Films Pty. Ltd. has offered for sale in the

magazines a greater number of filtns than the respondent. Both companies operate
from the same premises at Bundall on the Gold Coast.
The applicant, in support of the order sought, read an affidavit of

Norma Boogerd who deposed :-
"I. bz tlze nzo~ztlrr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marelic v Comcare

Details

AGLC: Marelic v Comcare [1993] FCA 599
Case: [1993] FCA 599
Decision Date: 19 Aug 1993

CaseChat Overview and Summary

The Federal Court of Australia heard an application brought by Ist Call Video Rights Ltd against CBL Video Pty Ltd concerning security for costs. Ist Call Video Rights Ltd sought to vacate an order for security for costs made on 9 August 1993, which had been stayed to allow the application to be made. The application was based on the allegation that between the hearing of the original application for security for costs and the delivery of judgment, the respondent's business had been allowed to run down so that if Ist Call Video Rights Ltd succeeded on the principal application, the respondent company would be a mere shell against which no judgment could be effectively executed.

The legal issues before the court were whether the respondent's business was indeed being run down and if so, whether this was being done to defeat any judgment Ist Call Video Rights Ltd might obtain. The court had to consider the evidence presented and determine if there were established facts from which the inference could be drawn, and if the absence of contrary evidence meant the inference must be drawn.

In its judgment, the court found that the evidence did not establish that the respondent's business was being run down or diverted to Peacock Films Pty Ltd. The court acknowledged that both companies were competitors offering for sale film videos, but found no evidence of switch selling or that the businesses were being passed off as each other's. The court also found that the respondent was still in business, advertising fewer new release videos for sale. The court held that the absence of evidence explaining the fall in the number of new releases advertised for sale did not necessarily mean that the business of the respondent was being run down to defeat any judgment. The court dismissed the application to vacate the order for security for costs and stayed pending provision of security and costs made on 9 August 1993. The applicant was ordered to pay the respondent's costs of the application to be taxed, if not agreed.

Orders