PIHA Pty Ltd v Vinidex Tubemakers Pty Ltd

[1999] FCA 577

FEDERAL COURT OF AUSTRALIA

PIHA PTY LTD v VINIDEX TUBEMAKERS PTY LTD [1999] FCA  577

PIHA PTY LTD v VINIDEX TUBEMAKERS PTY LTD
W 9 of 1999

FRENCH J
4 MAY 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA  DISTRICT REGISTRY	W9 OF 1999

BETWEEN:

PIHA PTY LTD
ACN 061 356 812

Applicant

AND:

VINIDEX TUBEMAKERS PTY LTD
ACN 000 664 942

Respondent

JUDGE:	FRENCH J
DATE:	4 MAY 1999
PLACE:	PERTH

REASONS FOR JUDGENT ON COSTS OF MOTION

1. On 22 April 1999 I made an order transferring these proceedings to the Queensland Registry of the Court and an order that the applicant provide security of costs in the sum of $50,000 with liberty to the respondent to apply to increase the amount of the security after the action was listed for trial.  I ordered that the costs of the respondent’s transfer and security motion be in the cause but allowed the parties liberty to make submissions to vary that order within seven days.  Submissions have now been made.  The respondent contends that the appropriate order is that the costs of the motion be the respondent’s costs in the cause.  That is to say the respondent would recover the costs if it were successful but not be liable for the applicant’s costs of the motion if it were unsuccessful in the action ultimately.

2. In my opinion and notwithstanding the arguments put by the respondent, the orders should stand.  The main thrust of the respondent’s contentions was in support of transfer of the action to the Queensland Supreme Court on which point it did not succeed.  The amount of security which it estimated was in the order of $300,000. The amount I ordered was in the end considerably less than that.  The applicant’s resistance to the motion was, in the circumstances, understandable although it may have been that some negotiation before hand could have led to an outcome similar to that which was directed.

3. In the event, I am satisfied that the fairest course of action is to regard the costs of this motion as an overhead of the action generally and to allow recovery by the successful party.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             4 May 1999

Counsel for the Applicant:	No Appearance
Solicitor for the Applicant:	Bennett & Co
Counsel for the Respondent:	No Appearance
Solicitor for the Respondent:	Healy Pynt
Date of Judgment:	4 May 1999