Nendy Enterprises Pty Ltd v New Holland Australia Pty Ltd

[2001] FCA 582

Nendy Enterprises Pty Ltd v New Holland Australia Pty Ltd [2001] FCA 582

Nendy Enterprises Pty Ltd v New Holland Australia Pty Ltd [2001] FCA 582

NENDY ENTERPRISES PTY LIMITED v NEW HOLLAND AUSTRALIA PTY LIMITED

N 1149 of 2001

WHITLAM J

6 NOVEMBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1149 of 2001

BETWEEN:	NENDY ENTERPRISES PTY LIMITED APPLICANT
AND:	NEW HOLLAND AUSTRALIA PTY LIMITED RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	6 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       On or before 7 December 2001 the applicant provide security in the sum of $50,000 in respect of the costs of the respondent, such security to be provided in a manner acceptable to the New South Wales District Registrar of the Court.

2.       In the event of default by the applicant in providing security in accordance with the first order, the proceeding be stayed.

3.       The parties have liberty to apply on three days' notice in respect of these orders.

4.       The applicant pay the respondent the costs of its motion for security for costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1149 of 2001

BETWEEN:	NENDY ENTERPRISES PTY LIMITED APPLICANT
AND:	NEW HOLLAND AUSTRALIA PTY LIMITED RESPONDENT

JUDGE:	WHITLAM J
DATE:	6 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1       This is an application for security for costs in respect of a proceeding brought under Part IVA of the Federal Court of Australia Act1976 (Cth) ("the Act"). The group on whose behalf the proceeding has been commenced may be described as farmers and contractors who acquired combine harvesters sold by the respondent for the purpose of harvesting crops. It is claimed that defects in the harvesters have affected the livelihoods of members of the group.

2 On 10 September 2001 the respondent filed notice that it would move the Court for orders that the applicant provide security for costs of the proceeding pursuant to s 56 of the Act. This morning, upon the motion coming on for hearing, the respondent filed in Court an amended notice of motion adding an alternative application under s 1335(1) of the Corporations Law.

3 There is no conflict in the authorities on the manner in which the discretion under s 56 of the Act is to be exercised. Each side has relied on the same authorities and does not suggest that they stand for different propositions. The ultimate refinement of the authorities is in the recent decision of Wilcox J in Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 1004 where his Honour gathered the case law from Merkel J's decision in Woodhouse v McPhee & ors (1997) 80 FCR 529 to the Ryan v Great Lakes Council cases which include his own decision (1998) 154 ALR 584 and that of Lindgren J(1998) 155 ALR 447.