+ in "JUDGMENT No. ©7! fai. NEW SOUTH WALES DISTRICT. IN_THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIvisiow JUDGE: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: -. } - REGISTRY -) No.. G 379 of 1987 = ) ; . ) - BETWEEN : AWANET PTY. LIMITED Applicant ~ AND: AMALGAMATED WIRELESS (AUSTRALASIA) LIMITED Respondent MINUTE OF ORDER FOX J. 13 NOVEMBER 1987 SYDNEY. 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA ReCIShAE » RY N - ' ' IN THE FEDERAL COURT OF AUSTRALIA NOT FOR GENERAL DISTRIBUTION ) rae >) oe 7 NEW SOUTH WALES DISTRICT REGISTRY ) - "No, G 379 of 1987- * : [oe yr GENERAL DIVISION yo - - . BETHEEN : AWANET PTY. LIMITED Applicant AND: AMALGAMATED WIRELESS (AUSTRALASTA) LIMITED Respondent CORAM: FOX J. DATE: 13 NOVEMBER 1987 REASONS FOR JUDGMENT. EX TEMPORE FOX J. I think this application should be dismissed. It is an application for security for costs brought by the respondent against an applicant which is a company. In some small measure the parties are trade competitors. The dispute is about the name which both are using. The respondent has a reaqistered trade mark. The applicant has acquired the same name by registration under the Companies Act or Companies Code. I do not doubt that the application was brought bona fide. On the evidence presented in support of it when made it had a qreater chance of success than now appears. ne ne ee eer ee ' . i wae a : The point is that the applicant "company has_ only recently started trading, its trade being in-relation mostly to computers and computer parts and, programmes. - The first year of . business. not unnaturally was not very successful. |The' second year showed a considerable improvement and the third year holds even more promise. The currént financial situation is such-that I am not. satisfied that the applicant will be unable to pay the costs of the respondent if it is successful. The exact financial position at this stage is not certain. The figures have gone up somewhat. dramatically over a short period of trading. The applicant estimates that its net profit before tax for the financial year ending 30 June 1988 will be of the order of $125,000. Some criticism can of course be made of this projection. It may in the event prove to be an under-estimate or an over-estimate. Too much is conjectural to provide any satisfaction that there will be an absence of resources with which to pay the costs of the respondent. In evidence, the accounts including the projections have been examined in some detail. This is certainly open to be done, although it is only indicative of the fact that it is not at all plain that there will be inability to meet any costs Which are payable. TI would in anv event be influenced bv the circumstance that I have already mentioned, namely that the parties are in a competitive trade position, and by the general circumstances of the case so far as they presently appear. The provision of any security at this stage would be difficult and indeed, counsel for the applicant has said so. The ? major impact would be that it. would _ enhance the trading position of the respondent - to 'the detriment 'of that of the - 'applicant: tT do not take into - account that the respondent corporation isa vastly bigger organisation _than: that. of the applicant, -except that -it is in 'a much, better position "to" meet "any liability' for costs than is the "applicant: "This" "Litigation "wii itself result in "some net cost to the applicant, as "indeea it will to the- respondent, even if it is successful. - There is always a difficulty in this sort of case as to the choice offered to the court between frustrating litigation and the exercise of rights thought to exist, on the one hand, and the securing of the position of the person or company proceeded against on the other. In my view courts do not encourage cases where security is sought if the net result would be to bring the litigation to an end, unless there is very good reason for that result. I am of the view therefore that the present application should be dismissed, and, in the circumstances, with costs. It is not unreasonable, having in mind the uncertainties of life to say that the dismissal of the present application is without prejudice to the respondent bringing a further one if it is so advised, with of course, the same risk as to costs. Counsel for the 'Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Date of hearing: Date judgment delivered: _iI certify- that tthis.- and the three -(3) preceding pages are _a true-copy. of "the -Reasons, for Judgment herein of- -his Honour" Mrs Justice Fox. Associate: Sethe — - oes Date: 13 November- 1987 - Me T. J. Gibb - - Macpherson Greenleaf & Associates Mr M. Boyd Clayton Utz Sydney; 13 November 1987 Sydney; 13 November 1987 y . .