Norfeld P/L v Booy, L.W Summary

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

CaseChat Overview and Summary

In the Federal Court of Australia, Norfeld P/L, an applicant in a proceeding, sought an order for security for costs from the first and second respondents, Leopold Warrior Booy and Christina Dorothea Storek, respectively. The dispute arose in the context of a valuation of assets and liabilities of Fred Jeffrey Truck Sales Pty Ltd (ACN 000 539 293). The case was heard in the New South Wales District Registry, with Justice Tamberlin presiding over the matter. The primary issue before the court was whether Norfeld P/L should provide security for the costs of the respondents amounting to $25,569. This sum was verified by an affidavit from Mr Alastair Harvey Sutton, dated 16 August 1994. The court had to determine if the applicant's financial position warranted such an order and if any alternative measures could be accepted in lieu of the specified security.

Justice Tamberlin examined the financial statements and valuations provided by Norfeld P/L, noting a deficiency of assets amounting to $237,257 as per the accounts for the year ending 30 June 1993. A valuation report from Hooker Corporate indicated that the land and buildings were worth $2 million, contrasting with the applicant's valuation of $2.867 million. The court considered the insolvency of the applicant and the adequacy of the proposed security. The applicant offered an undertaking by a shareholder, Mr Preston, to refrain from calling on an unsecured loan of $1,622,199. However, the court was not satisfied that this was a secure and readily available fund to meet the respondents' costs. Justice Tamberlin concluded that the preferable course of action was for Norfeld P/L to provide the specified security for the respondents' costs.

Therefore, the court ordered Norfeld P/L to provide security for costs amounting to $25,569.60 within 60 days from the date of the judgment. Additionally, the applicants in the main proceedings were directed to pay the costs of the respondents to this application. This decision underscored the necessity for the applicant to secure the costs to ensure the financial protection of the respondents, reflecting the court's careful consideration of the applicant's financial standing and the appropriateness of the proposed security.

Norfeld P/L v Booy, L.W

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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

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