Time 2000 Systems (Australia) Pty Limited v Rafferty - [2010] FCA 1179

FEDERAL COURT OF AUSTRALIA
Time 2000 Systems (Australia) Pty Limited v Rafferty [2010] FCA 1179

Citation: Time 2000 Systems (Australia) Pty Limited v Rafferty [2010] FCA 1179

Parties: TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED (ACN 127 853 614), TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED (ACN 128 700 541), EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG) and STEPHEN GERARD DONOVAN v PATRICK CAMPBELL RAFFERTY, SANTORA HOLDINGS PTY LIMITED (ACN 128 467 550), KARAVILLE HOLDINGS PTY LIMITED (ACN 009 439 178) and MADGWICKS

File number: SAD 124 of 2010

Judge: MANSFIELD J

Date of judgment: 1 November 2010

Date of hearing: 28 October 2010

Date of last submissions: 28 October 2010

Place: Adelaide

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 23

Counsel for the Appellants: A Dal Cin

Solicitor for the Appellants: Cowell Clarke

Counsel for the First, Second and Third Respondents: J Cudmore

Solicitor for the First, Second and Third Respondents: Cosoff Cudmore Knox

Counsel for the Fourth Respondent: J Wells QC

Solicitor for the Fourth Respondent: Mouldens

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 124 of 2010

BETWEEN:
TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED
(ACN 127 853 614)
First Appellant

TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED (ACN 128 700 541)
Second Appellant

EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG)
Third Appellant

STEPHEN GERARD DONOVAN
Fourth Appellant

AND:
PATRICK CAMPBELL RAFFERTY
First Respondent

SANTORA HOLDINGS PTY LIMITED
(ACN 128 467 550)
Second Respondent

KARAVILLE HOLDINGS PTY LIMITED
(ACN 009 439 178)
Third Respondent

MADGWICKS
Fourth Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

1 NOVEMBER 2010

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The first appellant, and/or the second appellant, and/or the third appellant, and/or the fourth appellant, pay into Court by 29 November 2010:
(a)by way of security for the costs of the first, second and third respondents of the within appeal the sum of $40,000;
(b)by way of security for the costs of the fourth respondent of the within appeal the sum of $25,000;

pursuant to section 56 of the Federal Court of Australia Act 1976 and Order 28 of the Federal Court Rules or alternatively by 29 November 2010 provide to the respective respondents security for the costs of the matter in the amounts respectively specified in a manner which is acceptable to those respondents.
2.The within appeal be stayed until the first appellant and/or the second appellant and/or the third appellant and/or the fourth appellant have paid into Court by way of security for the costs of the appeal or otherwise provided security for the costs of the appeal in a manner which is acceptable to the respondents to the sums specified in Order 1.
3.There be liberty to any party to apply upon three days’ notice to the other parties.
4.The costs of and incidental to this application follow the event on the within appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered…

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: [2010] FCA 1179
Decision Date

CaseChat Overview and Summary

Time 2000 Systems (Australia) Pty Limited v Rafferty is a case before the Federal Court of Australia, where the appellants, Time 2000 Systems (Australia) Pty Limited, Time 2000 Operations (Australia) Pty Limited, Emblemton Limited, and Stephen Gerard Donovan, appealed against the decision made by Besanko J in Rafferty v Time 2000 West Pty Ltd (No 4). The first to third respondents, namely Patrick Campbell Rafferty, Santora Holdings Pty Limited, and Karaville Holdings Pty Limited, as well as the fourth respondent, Madgwicks, filed motions for the appellants to provide security for costs of the appeal, which the appellants opposed.

The legal issues that the court had to decide revolved around the principles governing an order for security for costs, and the discretion of the court to make such an order. The court held that the discretion of the court to order security for costs is unfettered and it is appropriate to consider factors such as the prospects of success on the appeal, whether an order for security for costs would preclude the appellants from pursuing the appeal, the public interest, the timing of the application, and whether the impecuniosity of the appellants arises from the conduct of the respondents.

The court considered the evidence presented by the parties and determined that the considerations in favour of making an order for security for costs were quite strong. The court found that the appellants would not be able to recover the costs of the appeal if it was unsuccessful, but it was unlikely that the orders for security for costs would stifle a genuine appeal. The court also considered the prospect of the appeal succeeding, which was not shown to be either strong or weak. Based on these considerations, the court made an order for security for costs in favour of the first respondent (collectively) and the fourth respondent.

The court ordered that the appellants pay into Court by way of security for the costs of the appeal the sum of $40,000 for the first respondents and $25,000 for the fourth respondent. The appeal will be stayed until the appellants have done so, and there will be liberty to any party to apply upon three days’ notice to the other parties. The costs of the motions should follow the event on the appeal.

Orders