FEDERAL COURT OF AUSTRALIA
Sheather v Staples Waste Removals Pty Limited [2012] FCA 998
Citation: Sheather v Staples Waste Removals Pty Limited [2012] FCA 998 Appeal from: Staples Waste Removals Pty Ltd v Arev Computer Centre Pty Ltd & Ors (No 2) [2012] FMCA 214 Parties: JOHN ALICK SHEATHER v STAPLES WASTE REMOVALS PTY LIMITED and SVEN EDWIN BJORNSSON
SVEN EDWIN BJORNSSON v STAPLES WASTE REMOVALS PTY LIMITED and JOHN ALICK SHEATHER
File numbers: NSD 716 of 2012
NSD 747 of 2012Judge: NICHOLAS J Date of judgment: 11 September 2012 Catchwords: PRACTICE AND PROCEDURE – applications for security for costs – corporate respondent to appeals seeks security for costs – appellants natural persons – relevant considerations – whether orders for security will stultify appeals – security for costs ordered
PRACTICE AND PROCEDURE – applications for stay of execution – where risk that corporate respondent will be unable to repay judgment debts if paid by appellants before determination of appeals – stay of execution granted until determination of appeals conditional upon appellants providing security for costs in accordance with other orders
Legislation: Trade Practices Act 1974 (Cth) ss 52, 75B(1)(c)
Federal Court of Australia Act 1976 (Cth) s 56
Federal Court Rules 2011 r 36.08, r 36.09Cases cited: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685
Cooper v Universal Music Australia Pty Ltd [2006] FCA 642
Cowell v Taylor (1886) 31 Ch D 34
East Grace Corporation v Xing (No 1) [2005] FCA 219
Equity Access v Westpac Banking Corporation (1989) ATPR 40-972
Fox v Percy (2003) 214 CLR 118
J & M O’Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261
Moore v Macks [2007] FCA 509
Powerflex Services Pty Ltd v Data Access Corporation (1996) 35 IPR 193
Skyring v Sweeney [1999] FCA 61Date of hearing: 3 September 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 65 Counsel for John Alick Sheather A Scotting Solicitor for John Alick Sheather Yeldham Price O’Brien Lusk Counsel for Staples Waste Removals Pty Limited JM Beaumont Solicitor for Staples Waste Removals Pty Limited Harnett Lawyers Counsel for Sven Edwin Bjornsson C Alexander Solicitor for Sven Edwin Bjornsson Stuart Latham Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 716 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: JOHN ALICK SHEATHER
AppellantAND: STAPLES WASTE REMOVALS PTY LIMITED
First RespondentSVEN EDWIN BJORNSSON
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
11 SEPTEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appellant is to provide security for costs of his appeal in the amount of $12,500 within 21 days of today.
2.The cross-appellant is to provide security for costs of its cross-appeal in the amount of $10,000 within 21 days of today.
3.The appellant’s application to amend his notice of appeal is stood over to the hearing of his appeal.
4.Subject to the appellant complying with…
Keep reading for free
Create a free CaseChat account to read Sheather v Staples Waste Removals Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2012] FCA 998
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the appellants, as natural persons, should be required to provide security for costs of their respective appeals. The court had to consider the relevant considerations in making this determination, including whether the orders for security would stultify the appeals. The court also needed to decide whether to grant a stay of execution of the judgment until the determination of the appeals, considering the risk that the corporate respondent would be unable to repay judgment debts if paid by the appellants before the appeals were determined.
The court found that the appellants should provide security for costs of their appeals. The court considered the risk that the corporate respondent would be unable to repay judgment debts if paid by the appellants before the determination of the appeals, and therefore granted a stay of execution of the judgment until the determination of the appeals, conditional upon the appellants providing security for costs in accordance with the court's orders. The court ordered the appellant to provide security for costs of his appeal in the amount of $12,500 and the cross-appellant to provide security for costs of its cross-appeal in the amount of $10,000. The court further ordered that the appellant's application to amend his notice of appeal was stood over to the hearing of his appeal, subject to the appellant complying with the order regarding security for costs.
In summary, the court ordered the appellant to provide security for costs of his appeal in the amount of $12,500 within 21 days of today, and the cross-appellant to provide security for costs of its cross-appeal in the amount of $10,000 within 21 days of today. The court also granted a stay of execution of the judgment against which the appellant had appealed, conditional upon the appellant complying with the order regarding security for costs. The court dismissed the parties' interlocutory applications but without prejudice to the right of the first respondent to seek an order staying or dismissing the appeal in the event that security for costs was not provided in accordance with these orders. The costs of the parties' interlocutory applications were to be costs in the appeal.
Orders
Orders of the court
1. The appellant is to provide security for costs of his appeal in the amount of $12,500 within 21 days of today.
2. The cross-appellant is to provide security for costs of its cross-appeal in the amount of $10,000 within 21 days of today.
3. The appellant’s application to amend his notice of appeal is stood over to the hearing of his appeal.
4. Subject to the appellant complying with order 1 hereof, the judgment against which he has appealed is stayed until the determination of his appeal or further order.
5. Security for costs required by these orders is to be provided by way of payment into Court or by the provision of security in some other form acceptable to the Registrar.
6. Written submissions to be filed pursuant to orders made on 18 July 2012 must address the proposed additional ground of appeal which the appellant seeks to raise.
7. The parties’ interlocutory applications are otherwise dismissed but without prejudice to the right of a party in whose favour an order for security for costs has been made to seek an order staying or dismissing the appeal or cross-appeal in respect of which it was made in the event such security is not provided in accordance with these orders.
8. The costs of the parties’ interlocutory applications will be costs:
(a) in the cross-appeal in the case of the application for security for costs of the cross-appeal;
(b) in the appeal if not covered by (a) above.
9. The appeal is to be listed for directions and, if necessary, the hearing of any application for orders of the kind referred to in order 7 above before Nicholas J at 9.30am on 12 October 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
1. The appellant is to provide security for costs of his appeal in the amount of $12,500 within 21 days of today.
2. Subject to the appellant complying with order 1 hereof, the judgment against which he has appealed is stayed until the determination of his appeal or further order.
3. Security for costs required by these orders is to be provided by way of payment into Court or by the provision of security in some other form acceptable to the Registrar.
4. The parties’ interlocutory applications are otherwise dismissed but without prejudice to the right of the first respondent to seek an order staying or dismissing the appeal in the event that security for costs is not provided in accordance with these orders.
5. The costs of the parties’ interlocutory applications will be costs in the appeal.
6. The appeal is to be listed for directions and, if necessary, the hearing of any application for orders of the kind referred to in order 4 above before Nicholas J at 9.30am on 12 October 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
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.