> } > No. G288 of 1984. } ) BENERAL DIVISTON a THE MOETER QF: THE TRADE PRACTICES ACT 1974 BETWEEN: WARREN ROBERT TURNER First applicant LIMITED cant LAUREN MAVIS TURNER Third applicant ANTS 2 hiN ITED Second respondent HORRY LONDY Third respondent ORDER Judge making order: Beaumont, J. Tate order made: 15 February 1985. Where made: Sydney. 1. The second applicant provide security in the amount of $2.,00¢G.00 for the costs of the respondents of these proceedings am the form of cash, such security to be Provided within 14 days of the date hereof to the satisfaction of the Registrar. 2. Further proceedings on the second applicant's claim aaginst the respondents be stayed until such security is provided. 3. Reserve special liberty to the respondents to apply for further security for costs om such notice as a judge of the Court may direct. 4, ° Liberty be reserved to any party to apply generally, on three days' notice.- Se This application stand over tol April 1985 st 10.15 a... 6. No order as to costs of the application. No. G28e af 1964, we RETWEEN: WARREN ROBERT TURNER First applicant CULLANDS PT Second appl LAUREN MAVIS TURNER Third spplicant ANE SEROhD ANVESTMENTS PTY. LIMITED First respondent RB. FOSTER PTY. LIMITED Second respondent HARRY LONDY Third respondent CORAM: Beaumont, J. DATED. 15 February 1985. By their application and statement of claim filed on 14 August 1984, the applicants seek declarations that the Tespondents have engaged in conduct in contravention of 58.52, 93, S3A, SSA and S93 of tne Trade Practices Act, 1974 C*the Act"). Uaneges under s.82 and further orders pursuant to 5.87 are sought together with a declaration that the first applicant is antitled to rescind an agreement for sale dated 31 August 1982 made between the first respondent as vendor and the first applicant as purchaser for the sale of Lat 21 in a multi-storey building known as "Langley Fark*, ll Aerodrome Road, Maroochydore, Qld. at 2 price of $130,000.00. The accrued or associated jurisdiction of the Court is sought to be invoked in respect of 3 number of Claims made under the general law. These claims are said to arise out of the same sale transaction. The statement of clsim indicates that the disputes between the parties have had along and complicated history, including litigation between the parties in respect of the same transaction in the Supreme Court of Queensland. In August 1984, the applicants applied to the Court for an order restraining tie first respondent from praceeding with the action in the Supreme Court of Queensland. At the same time, the first respondent applied to the Court for 2 stay of these int proceedings pending the determination of the action in the Supreme Court of Queensland. On 36 August 1984, Fox, J., after hearing arqument,, dismissed hoth interlocutory applications. By their notices of motion dated § October and 31 November 1984, respectively, the respondents mow seek orders 3. that the second applicant give security for their casts in these proceedings. The secand applicant is & company controlled by the first applicant. 'The thard applicant is the first applicant's sister. It is common ground that none of the firet,second or third applicants has any substantial resources. Indeed, the present indications are that, unless this litigation is successful, each of the applicants may well be insolvent. At any rate, it is clear that the applicants could not at this stage fund or secure costs in the arder af the amount now claimed by the respondents as SBppropriate in the circumstances - $45,500.00, The applicants submit that if security for costs is ordered on the usual terms, that is, that the action is stayed until the security is given, the result will be to stifie the litigation virtusily st its inception. Against this, the respondents point to the long and (from their point of view) unsatisfactory history of the matter and Submit that it is unreasonable that thev should be put to the expense of defending a claim which is doomed to fail but in respect of which they have no prospect of receiving satisfaction for any order for costs they might recover. ! Whilst the Court has an absolute discretion in the ftiatter, the precarious state of the applicants' financial whe position suggests that, prima facie at least, the respondents are entitled to security for some of their casts. This is not sa case where the impecuniosity of the applicants can be attributed to the alleged misconduct of the respondents (cf. Lucss v. Yorke (1983) 50 A.L.R. 2329) Further, present indications are that the principal proceedings will be strongly contested om the facts and in legal sutmissions. Sinee it is impossible, at this stage, to predict the outcome of the litigation, the probabilities of suceess or failure in the claims mow made are not available to be taken into account in this application. In all the circumstances, I think that the proper course is to order -security now in a relatively nodest amount of $2,000.00 but to review the situation frequently as the litigation proceeds. I would have in mind, in particular, dispensing with the ususl interlocutory steps and directing that the final hearing proceed at an early date. Tounderstand that the parties will be ready to proceed ta a final mearing om 1 April 1985. I would propose to review the question of security for costs at the commencement of the finsl hearing and thereafter on a regular basis. Since mo party was entirely successful in the application, I propose to make mo order for its costs. I make the following orders: 1. The second spplicamt provide security in the amount of $2,000.00 for the costs of the respondents of these proceedinas in tne form of cash, such security to be provided within 14 days of the date hereof to the satisfaction of the Registrar, 2. Further proceedings on the secomd applicant's claim against the respondents be stayed until such security is provided. 3s Reserve special liberty to the respondents to apply for further security for costs of such motice as a judge of the Court may direct. 4, Liberty be reserved to any party to apply generally, on three days' notice. rs ae This application stand over tol April 1985 at 10.15 a.m... 6. No order as ta costs of the application. | certify that this and the 4- preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Beaumont. Anvbes 7 Associate Dated 7S (PE