Pegasus Gold Inc v Bateman Project Engineering Pty Ltd - [1999] FCA 1734

FEDERAL COURT OF AUSTRALIA
Pegasus Gold Inc v Bateman Project Engineering [1999] FCA 1734
SECURITY FOR COSTS – the relationship between O 28 r 3 of the Federal Court Rules, s 56 of the Federal Court of Australia Act 1976 (Cth) and s 1335 of the Corporations Law – whether a respondent is entitled to security for costs from an applicant in relation to any costs it may be ordered to pay to a cross-respondent
Corporations Law s 1335
Federal Court of Australia Act 1976 (Cth) s 56
Federal Court Rules O 28 r 3
Bell Wholesale Co Pty Limited v Gates Export Corporation (1984) 2 FCR 1 followed
Southern Cross Airlines Holdings Ltd (in liquidation) v Arthur Anderson & Co & Ors (Drummond J, 6 August 1997, unreported) followed
Bruce Pie & Sons Pty Ltd v KH Mainwaring, English and Peldan [1985] 1 Qd R 401 followed
PEGASUS GOLD INC & ORS v BATEMAN PROJECT ENGINEERING PTY LIMITED & ORS
NG 471 OF 1998
JUDGE:        MATHEWS J
DATE:          15 DECEMBER 1999
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 471 OF 1998

BETWEEN:

PEGASUS GOLD INC
FIRST APPLICANT

PEGASUS GOLD CORPORATION
SECOND APPLICANT

PEGASUS GOLD AUSTRALIA PTY LIMITED
THIRD APPLICANT

AND:

BATEMAN PROJECT ENGINEERING PTY LIMITED
FIRST RESPONDENT

KINHILL PACIFIC PTY LIMITED
SECOND RESPONDENT

KILBORN ENGINEERING PACIFIC PTY LIMITED
THIRD RESPONDENT

SVEDALA AUSTRALIA LIMITED
CROSS-RESPONDENT

JUDGE:

MATHEWS J

DATE OF ORDER:

15 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicants provide security for the respondents’ costs of the proceedings, excluding any costs that the respondents may be ordered to pay to the cross-respondent.
2.The cross-claimants provide security for the cross-respondent’s (Svedala) costs of the proceedings.
3.The matter be referred to a Registrar of the Court for determination and assessment of the nature and amount of security to be provided pursuant to Orders 1 and 2 hereof.
4.For the purposes of Order 2, the respondents and cross-respondent be granted leave to forthwith approach a Registrar to seek a hearing date for determination of their costs up to and including the conclusion of discovery.
5.Thereafter, the respondents and the cross-respondent be granted liberty to apply to a Registrar on 7 days’ notice to seek any further amount or amounts for security for their costs.
6.I reserve the question of 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

NG 471 OF 1998

BETWEEN:

PEGASUS GOLD INC
FIRST APPLICANT

PEGASUS GOLD CORPORATION
SECOND APPLICANT

PEGASUS GOLD AUSTRALIA PTY LIMITED
THIRD APPLICANT

AND:

BATEMAN PROJECT ENGINEERING PTY LIMITED
FIRST RESPONDENT

KINHILL PACIFIC PTY LIMITED
SECOND RESPONDENT

KILBORN ENGINEERING PACIFIC PTY LIMITED
THIRD RESPONDENT

SVEDALA AUSTRALIA LIMITED
CROSS-RESPONDENT

JUDGE:

MATHEWS J

DATE OF ORDER:

15 DECEMBER 1999

WHERE MADE:

SYDNEY

REASONS FOR JUDGMENT

Applications for security for costs have been made by two of the parties to these proceedings in circumstances I shall mention shortly.…

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.

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Details

Case: [1999] FCA 1734
Decision Date: 15 DECEMBER 1999

CaseChat Overview and Summary

Pegasus Gold Inc sued Bateman Project Engineering Pty Ltd and Svedala in the Supreme Court of Queensland. Pegasus alleged that Bateman and Svedala were in breach of contract and had committed misleading and deceptive conduct under the Australian Consumer Law. Bateman denied the allegations and filed a cross-claim against Svedala, alleging that Svedala had engaged in misleading and deceptive conduct and was liable for any damages Pegasus might recover against Bateman. Svedala denied the allegations in the cross-claim and filed a cross-claim against Bateman, alleging that Bateman was liable for any damages Svedala might be ordered to pay to Pegasus.

The court had to decide whether Pegasus, Bateman, and Svedala should provide security for costs in the proceedings. The court had to determine the nature and amount of security required and whether the parties should be granted leave to apply for further security for costs. The court had to decide whether to reserve the question of costs.

The court held that Pegasus, Bateman, and Svedala should provide security for costs in the proceedings. The court held that the nature and amount of security should be determined by a Registrar of the Court. The court held that the respondents and the cross-respondent should be granted leave to forthwith approach a Registrar to seek a hearing date for determination of their costs up to and including the conclusion of discovery. The court held that the respondents and the cross-respondent should be granted liberty to apply to a Registrar on 7 days’ notice to seek any further amount or amounts for security for their costs. The court held that the question of costs should be reserved.

Orders

Orders of the court

1. The applicants provide security for the respondents’ costs of the proceedings, excluding any costs that the respondents may be ordered to pay to the cross-respondent.

2. The cross-claimants provide security for the cross-respondent’s (Svedala) costs of the proceedings.

3. The matter be referred to a Registrar of the Court for determination and assessment of the nature and amount of security to be provided pursuant to Orders 1 and 2 hereof.

4. For the purposes of Order 2, the respondents and cross-respondent be granted leave to forthwith approach a Registrar to seek a hearing date for determination of their costs up to and including the conclusion of discovery.

5. Thereafter, the respondents and the cross-respondent be granted liberty to apply to a Registrar on 7 days’ notice to seek any further amount or amounts for security for their costs.

6. I reserve the question of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 471 OF 1998

BETWEEN:	PEGASUS GOLD INC FIRST APPLICANT PEGASUS GOLD CORPORATION SECOND APPLICANT PEGASUS GOLD AUSTRALIA PTY LIMITED THIRD APPLICANT
AND:	BATEMAN PROJECT ENGINEERING PTY LIMITED FIRST RESPONDENT KINHILL PACIFIC PTY LIMITED SECOND RESPONDENT KILBORN ENGINEERING PACIFIC PTY LIMITED THIRD RESPONDENT SVEDALA AUSTRALIA LIMITED CROSS-RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	15 DECEMBER 1999
WHERE MADE:	SYDNEY