A5b CATCHHGRDS Security for costs - applicant not resident or carrvinag on business in Australia - applicant a company carrving on business in New Zealand - consideration of enforcement procedures available for enforcement of tudaqment obtained in Australian Court - reievance of simplicity of such procedures to yguestion of whether security should be ordered. Federal Court Kules, urder 28, rule 3 Judicature Act 1908 (N.Z.+, 3. 50 Reciprocal Enfcorzement wf Tudamenrs Acc Lalit NLD.) No. 13 of 1384 Coram: Sheppard J. 3 Novemper 1984 Svdnev Note: For Jediers s2e ow. ©o ko 7, IN_THE FEDERAL COURT JF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 13 of 1334 GENERAL DIVISION BETWEEN : KENT HEATING LIMITED Applicant AND: COOK-ON CAS PRODUCTS PTY LIMITED AND ANOR. Fespondents 'TORAM: Sheopnard J. 2 HWovemperc 13954 PEASINS FOR JUDGMENT SIS HONOUR: This 15 an application ror ausitiomal security for costs made by the respondents in an apeliceztion ion which the applicant 13 a ccmpanv incorporared and carrving on business in New Zealand. [bk does not carry on business in Australia and has no assets in this countrv. The evidence establisnes that costs Ui already incurred and to be incurred bv che respondents before tne matter will be readv for hearing will amount to approximately rc ts G,000. The apolicant has alreadv provided sé@curcicv in tne sum $10,000. The respundents seex oraers for the wprevisien of an Go ty adaitional slu,vud in resoect tL Kr iw)w. a v. remow ib bncvurcred ducing tne unterlocurory stages of the proceedinus and an craer that there be liberry to make a Curther applicarion in reseeck oF an amount or amounts to be provided as securlky for 39srs incurred durina the hearing, 2. The applicant does not claim to be financiallv embarrassed bv the application. It 1s, apparentlv. a successful and weil to do company in New Zealand with a turnover of some $20,090,009) vearlvy. But 1t opposes the application which has peen made Principally because 1t savs that if ir loses the litigation and is ordered to pay the costs of it. no matcer that rhe erder for costs may involve a verv substantial sum, this Court s order will be able to be enforced reasonablv simelv in New Zealand bv procedures provided for in s. 56 of the Judicature Act 1308 (N.Z.. I snouid note in passina that iudaments of the Supreme Courts of the States of Australia are enforceable bv a simple procedure whicn 1s provided for in tne Feciprsocal En. srcemant_of Judaments Act 1334 \N.@.) which, I qatner, contains czrovisions not much more complex than those whizsh are contained in the Service and Execution of Process Act 1901 which erovide for che enforcement in one Stace of Australia of a tudaomenc sptained in another State. The Reciorocal Enforcement of Judaments aAcr 1s not ava'lable in vhe eresent case be.ause 1h has nov been extended bv Qeder in vouncil New Zealand to avely to iudumencs of this Court, nor [I think. of the Hiwh Courc. It would seem to me, 1f I mav sav 30 1n passinu, thak those who have the responsibility of providina for these thinus both i po) vt New Zealand and in Auscralia. mav well consider 1t apprusriate co ensure that enforcement of tudaments in New Tealand of this Cours 3. or of the High Court should be no more complex than ts the case in relation to the enforcement of jtudaments of the Supreme Courts of the States. were tne subiect of consideration bv Rath J. in Connop v. Varen @ EFty Lamited £19843 1 N.S.W.L.R. 71. His Honour was there concerned with an application for securitv for costs in a matter in the Eguity Division of the Suereme Court vf New South Wales in which the plaintiff was in New Zealand. although there were some assets of Ehe plaintiff within the iurisdiction. The case was ent of Judamenrs Act upplied. one to which the Reciprocal IF} nforce Principaily because of its application to tn® case his Honour declined to order security. it Faid so, "4s "An order for costs against the prainciffs in this case would present no difficulties sf anv Slunificance upon reaqistration oro eeaings in New 4ealand, and though there 1S provision for settina aside reaistered sudaments none out the eases was they are called in the Act' for so aoing would be applicable. There is eeevision in the rules tor securitv for costs, and it 13 possible that delav in enforcement could arise as the result of appeals in the New Scuch Wales appellate svstem. Thus there mav be some delay. inconvenience and expense arising from reaistration and executiosin or a tiudamenc in New Cealand: burt aparc fFrem chie Io sae no difference in reaard to tne cosrs or tne firsec and second defendants cetween the Circumstances of this case and those «of a similar case where a claintiff is noc crdinarilv residenc outside the State. Wilh onivy winer reservations, a tudamenct for ets will be as effective againse Lhe plainciffs nerve as it would be in cne ase of a plaintiff who did not cruinarily geside vurside the itate...' 4. The provisions of s. 56 of the Judicature Act. so it seems to me, do enable a partv such as the applicant here to oppose reaistration of a tudument in a areater varietv of cases than 1s the case in relation to a sudament redqistered under the Reciprocal Enforcement of Judaments Act. Nevertheless, as Mr. Hevdon has submitted, 1t would seam difficuit to think thar the opposition if made could be successful or could involve much delav or verv areat expense. Certainly the amount which has alreadv been provided for securitv would seem to ne snouoh E35 cover whatever costs would be involved. On the other hand. ir I decline to order further security. the respondents, 1f tnev are successful ain the procesdinas and cbtain an order for costs aqainst the applicant. will be at some risx, even though tne risk be not areat, as to the certaintv of enfircement and as fo the time and complexity of the action rhat alaghh pe necessarv 1o etfect it. Nevertheless. if there were no other factors, I think I nav. notwithstanding the fact that the Perierscal Enforcement _of Judaments Act does not applv, have some cwn on che side of approachina the mattec much in rhe same way as Pach J. T vonress to having areat svmpathv for the axseroarn which he adueced in che Connop case, put there 15 tne arscinction chat in the Toone case the plaintiffs did have some assets in che wurisdictiun. Thac may be said to be wffset in the present case ov tne ract that already the applicant has provided $19,090 by wav of security for costs, wut othe Lay fFacters chat I think should be taken ints account are these. There is. firstly. the need for a party wishing to pav munev out of New Zealand to someone in another countrv to obtain Reserve Bank approval. Upon the evidence that I have at the moment it would seem that there 1s unlikely to pe anv difficulty about that matter. But this matter will not be resolved for sume months or verhans for even a vear. Une cannot foresee what the position mav be at the end of that time. With the best will in the world there mav be a problem. Aaain the probabiiities mav be that Lhere will not be a oroblem. but the auestion is whv should the respundents in the present case be pur ak risk. Then, as Mr. Tatterns on benalf or the resrondents teas mentioned. there mav be a voroblem as to Je vermininag che aware usun which the exchanae rate for che scavment -c tne monev wiii be fixed. Will at be the date of the order for couts,. the dare of the certificate of taxatiun or the date of enforrement. Aqain, these matters mav not present over much difficulty when tnev are Looked at carefullv. but whv, i repeat, shoull the respcndencs in a case which. apparently. does not involve anv financ1iai hLardshiv on the part of the applicant. be put at risk. In all the carcumstances I have reached tne canelusion that I should accede to the application which 15 mad@ on vehaif oar Ene respondents and I propose to do so. 6. The auestion then is the amount of the security. Having reflected on the matter and taken into account the iudament of Lane J., 'as he was). in T._Slovan_ & Sons 'Builders, Limited v. Brothers _ of Christian _Instruction £1974] 3 All E.R. 715, I propose to order the provision of a further sum of $5,000 by wav of security tor costs, which is intended to provide security for the respondents costs down to the commencement of the hearing, allowing for the sum of $lu.0U0 alreadv provided. I propose also to reserve libertv to the raspondents to make such further application for security for costs in relation to che hearina as thev mav be advised. I would suagest that the securitv pe provided in such a manner and furm as the varties mav agree, or the Peaoistrar may aoprove, withir 28 davs. (Discussion ensued). The orders I make are as fodilows: = ooarder rnat the applicant provide security in che sum of s5,u99 for casts incurred and to be incurred bv the resecncaencs down to the commencement of the hearing of the applictation. Such sum is to be in addation to che sum of Slu.uoU alreauy provided. Such a> vhe ey ie] ro a = m fe " securicy 1s cc) be orevidea within 2.3 days 2 parties mav amree or, in defauls of agreement. tne Pearotrar mav determine. Ioaive liberty cto the respandents £9 make such further application For securitv for costs as they mav Le advised. Costs of the Notice of Motiun or 23 See ct ember 1984 are 7. to be costs in the application. I make orders in terms of the Short Minutes which I have amended and initsalled and dated and Placed with che papers. The matter 1s stood over to 8 February 1385 at 9.30 a.m. before me for further directions. 1 certify that this and the 6 preceding ~ true copy of tic reasons for wit pe oat herein of THe tfonourable Mr Justice Sheppard. Jbl ¥ thco Associate Dated 7 AowEMbER 178% ' al