FEDERAL COURT OF AUSTRALIA
Norcast S.ár.L v Bradken Limited & Ors [2012] FCA 765
Citation: Norcast S.ár.L v Bradken Limited & Ors [2012] FCA 765 Parties: NORCAST S.ÁR.L v BRADKEN LIMITED, NICHOLAS FRANK HUGO GREINER and BRIAN HODGES File number: VID 356 of 2012 Judge: GORDON J Date of judgment: 18 July 2012 Catchwords: PRACTICE AND PROCEDURE – security for costs – quantum of security to be provided – whether appropriate to calculate quantum of security based on estimate of actual or indemnity costs – discount to be applied to actual or indemnity costs – application of “two-thirds rule” ‑ relevance of possibility of early settlement – steps in proceeding covered by security ‑ costs incurred prior to application for security Legislation: Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)Cases cited: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187
Austin, Nichols & Co Inc v Lodestar Anstalt [2009] FCA 1228
Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No 2) [2010] FCA 1209
Brundza v Robbie & Co (No 2) (1952) 88 CLR 171
Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Digital Cinema Network Pty Ltd v Omnilab Media Pty Ltd [2010] FCA 1242
Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 2) [2012] FCA 23
Nysan Asia Pacific Pty Ltd trading as Horiso v R & D Automation Technology Corp [2012] FCA 193
Pathway Investments Pty Ltd v National Australia Bank Limited [2012] VSC 97
Procon (Great Britain) Ltd v Provincial Building Co Ltd (1984) 2 All ER 368
Qaudrant Constructions Pty Ltd v Morgan Smith Barney Australia Pty Ltd [2009] VSC 455
Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd [1991] FCA 288
Robertson v Knott Investments Pty Ltd (No 2) [2010] FCA 796
Save the Ridge Inc v Commonwealth of Australia [2004] FCA 1289
Winning Form Pty Ltd v Giddy Up Ratings Pty Ltd [2011] FCA 1140Date of hearing: Determined on the papers Date of last submissions: 4 July 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 Solicitor for the Applicant: Allens Solicitor for the Respondents: King & Wood Mallesons
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 356 of 2012
BETWEEN: NORCAST S.ÁR.L
ApplicantAND: BRADKEN LIMITED (ABN 33 108 693 009)
First RespondentNICHOLAS FRANK HUGO GREINER
Second RespondentBRIAN HODGES
Third Respondent
JUDGE:
GORDON J
DATE OF ORDER:
18 JULY 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) and/or Rule 19.01 of the Federal Court Rules 2011 (Cth), the Applicant provide security for the Respondents’ costs in defending this proceeding up to and including the preparation of evidence in an amount of $227,500 and in…
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- Case
- [2012] FCA 765
- Decision Date
CaseChat Overview and Summary
The court held that the security for costs should be calculated based on an estimate of actual costs, taking into account both the costs already incurred and the estimated costs to be incurred up to the preparation of evidence. The court determined that a discount should not be applied to the estimated costs, as it would not accurately reflect the likely expenses. The court also found that the "two-thirds rule," which suggests that security should be two-thirds of the estimated costs, was not strictly applicable in this case due to the possibility of an early settlement. The court concluded that the security should include a component for costs already incurred by Bradken, and ordered that Norcast provide $227,500 as security for costs, which was 50% of the sum of actual costs incurred to date and the mid-point of the estimated costs.
Pursuant to the Federal Court of Australia Act 1976 and the Federal Court Rules 2011, Norcast was ordered to provide security for costs in the amount of $227,500. The proceeding was to be stayed until such security was provided. Bradken was granted liberty to apply for further orders, and costs were reserved. The court's decision provided clarity on the calculation of security for costs in the context of the proceeding, ensuring that Bradken was adequately protected against potential financial loss due to Norcast's failure to satisfy a final judgment.
Orders
Orders of the court
1. Pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) and/or Rule 19.01 of the Federal Court Rules 2011 (Cth), the Applicant provide security for the Respondents’ costs in defending this proceeding up to and including the preparation of evidence in an amount of $227,500 and in such form as may be agreed between the parties or, failing such agreement, in a form acceptable to the Registrar of the Court.
2. The proceeding be stayed until such security has been provided or until further order.
3. Liberty to apply.
4. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth)
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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