Sheather v Staples Waste Removals Pty Ltd

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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 2012
Judge: 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 36.09
Cases 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 61

Date 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
Appellant

AND:

STAPLES WASTE REMOVALS PTY LIMITED
First Respondent

SVEN 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…

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Details
Case
[2012] FCA 998
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Sheather, an appellant, brought an appeal against Staples Waste Removals Pty Ltd, the corporate respondent. The dispute centred on the appellant's appeal against a judgment and the corporate respondent's application for security for costs of the appeal. The cross-appellant, another party, also sought security for costs in relation to its cross-appeal. The court was tasked with determining whether the appellants, who were natural persons, should be required to provide security for costs and whether the orders for security would stultify the appeals.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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