Ramset Fasteners (Aust) Pty Ltd v Advanced Building Systems Pty Ltd

[1996] FCA 1200

IN THE FEDERAL COURT OF AUSTRALIA ) \ I

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 364 of 1995

)

GENERAL DIVISION 1

BETWEEN : RAMSET FASTENERS (AUST) PTY LIMITED

Appellant

AND :

ADVANCED BUILDING SYSTEMS

PTY LIMITED

First Respondent

THE BURKE COMPANY LIMITED

Second Respondent

29 NOVEMBER, 1996

REASONS FOR JUDGMENT

LOCKHART J .

This is a motion for a stay of an order for costs made by

a Full Court of this Court of which I was a member on 26 April

1996. The orders of the Court allowed the appeal from the

judgment of a judge of the Court and, amongst other things, ordered that the respondents to the appeal - one of whom is presently the applicant on the motion before the Court - should pay the costs of the successful appellant of the proceeding at first instance and of a cross appeal.

The basis of the motion, which is opposed, is essentially that the moving party, Advanced Building Systems Pty Limited, is in a financial position such that it would not be able to meet the order for costs without placing itself in such jeopardy that it could not prosecute a motion for leave to appeal to the High Court and, in particular, any appeal that

may ensue thereafter, if the motion for leave to appeal is successful. The motion is before the High Court and it is likely that it will be heard in February next year.

Counsel for the successful party to the appeal opposes the motion on the ground that it has not been established that the financial position of Advanced Building Systems Pty Limited is such that it will necessarily jeopardise its prospects of prosecuting its appeal or indeed the anterior motion for special leave to appeal.

The principles are well established and I am content to

rely on the exposition of them made by Heerey J. in Henderson

v A m a d i o P t y L i m i t e d ( 1 9 9 6 ) 136 ALR 5 9 3 .

Here it is claimed that the points of law involved in the matter are arguable, notwithstanding that the Full Court unanimously reversed the relevant findings of the primary Judge.

Also, the financial position of Advanced Building Systems Pty Limited is plainly one where the liabilities exceed its assets. Indeed, as counsel for Ramset has said plainly, for some time Advanced has been funded by loans from related companies in substantial sums.

I am not persuaded that the financial position of

Advanced is parlous, but it does seem to me on the evidence that as the order for costs, which have been taxed, results in a substantial liability of Advanced to Ramset, it could indeed place Advanced in a position where it may not be able to meet the order for costs were it enforced in the near future.

I think the matter is one that raises a legal question

which is plainly open to argument. The just course to follow

in accordance with the accepted principles is to grant the

motion to stay the costs order until the High Court has determined the special leave application. I do not think it appropriate that I go beyond that. If the High Court allows special leave, it is then a matter that is before the High Court, which can determine the future of any stay motion that may be made to it by Advanced.

Of course, if the special leave application fails, then the stay that I will grant automatically will cease to operate. I note also that the leave application seems to be the one which will heard in February of next year. If that position should change, and for some reason the High Court does not determine the matter until some time substantially later, it is always open for Ramset to bring the matter back to the Court.

Accordingly, the Court orders that the order for costs

made in this matter by a Full Court of this Court on 26 April

1996 be stayed up to and including the date of the

determination of the application for special leave from that judgment which has been made to the High Court of Australia. The Court also orders that there be no order as to the costs of this motion.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated: 29 November 1996

Counsel for the Appellant	Mr R C Macaw QC
Solicitors for the Appellant	Davies Ryan de Boos
Counsel for the First
Respondent	Mr H R Sorensen
Solicitors for the First
Respondent	Astridge & Murray
Date of Hearing	29 November 1996
Date of Judgment	29 November 1996