Norfeld P/L v Booy, L.W

[1994] FCA 336

3 3 6    99-

JUDGMENT No. ........ ........ .. I ........ ....

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	1	No. NG 3048 of 1994
GENERAL DMSlON	)

BETWEEN :	NORFELD PTY LTD (ACN 003 792 229) Appl~cant
AND :	LEOPOLD WARRIOR BOOY First Respondent
AND :	CHRISTINA DOROTHEA STOREK Second Respondent
IN THE MATTER OF
FRED JEFFEREY TRUCK SALES  .'-
PTY LTD (ACN 000 539 293)

CORAM :	TAMBERLIN J
PLACE :	SYDNEY
DATED :	27 SEPTEMBER 1994  RECEIVED 13 OCT 1994

FEDERAL COURT OF
AUSTRALIA

REASONS FOR JUDGMENT	PRINCIPAL
REGISTRY

-. . -

In th~s matter, the applicant on the motlon seeks an order that the appl~cant in the

proceeding prov~de securlty for the costs of the first and second respondents in the

valuat~on was made as at 24 August 1993.

sum of $25,569. This amount 1s verified by an aftidavit by Mr Allstalr Harvey Sutton,

dated 16 August 1994.

The accounts of the appl~cant company show that for the year ended 30 June 1993

there was a deficiency of assets in the order of $237,257 and this was based on a valuatlon of land and bulldlngs at $2.867 m~ll~on. It appears trom a valuatlon report from Hooker Corporate that the value of the land and buildings is $2 million and t h ~ s

I am satistred that the company appears to be insolvent on its Pace. The applicant

company proffers an undertalung by a shareholder in Norteld Pty Limited, a Mr Preston, that for the duration of the proceedings he will not call on an unsecured loan

of $1,622,199 which is shown in the balance sheet for the year ended 30 June 1993.

Such an undertak~ng does not prov~de a readily available and secure fund to meet the

respondents' costs.	For example, the debt might be ass~gned or the person giving
such an undertak~ng	could become bankrupt

I am not satistied that this IS an appropriate case tor the court to accept such an

undertaking and I am not satisfied that Mr Preston, being a non-party to the proceedings, 1s able to glve such an undertaking. However, the primary reason for my

decislon is that I th~nk, in the circumstances, the preferable course is for the security

to be pa~d as applred tor in the notice of rnotlon and I therefore order that the appl~cant provtde sccurlty tor costs of the first and second respondents in the sum oi $25,569.60. The applicants in the maln proceedings to pay the cost of the

respondents to this application.

I order that the amount of securlty for costs which I have referred to should be paid

withln 60 days from today's date.

I certify that this and the preced~ng
page is a true copy of the

Reasons for Judgment herein of

his Honour Mr Just~ce Tamberlin.

Sollc~tors for Appl~cant : Appleby & Nilson Solicltors

Cnunsel for Respondents :	Mr G P Rundle
Sollcltors for Respondents :	A Hawey Sutton & CO Solic~tors