Norfeld P/L v. Booy, L.W. & Anor [1994] FCA 336

JUDGMENT No. ..:23,6.../ 2%...

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 3048 of 1994

GENERAL DIVISION ) BETWEEN : NORFELD PTY LTD (ACN 003 792 229) Applicant AND : LEOPOLD WARRIOR BOOY

First Respondent

AND : CHRISTINA DOROTHEA STOREK Second Respondent

IN THE MATTER OF FRED JEFFEREY TRUCK SALES

PTY LTD (ACN 000 539 293)

CORAM : TAMBERLIN J A PLACE : SYDNEY DATED : 27 SEPTEMBER 1994 RECEIVED 13 OCT 1994 FEDERAL COURT OF NS FOR JUDG erates

REGISTRY

In this matter, the applicant on the motion seeks an order that the applicant in the proceeding provide security for the costs of the first and second respondents in the sum of $25,569. This amount is verified by an aftidavit by Mr Alistair Harvey Sutton,

dated 16 August 1994,

The accounts of the applicant company show that for the year ended 30 June 1993 there was a deficiency of assets in the order of $237,257 and this was based on a valuation of land and buildings at $2.867 milhon. It appears trom a valuation report

from Hooker Corporate that the value of the land and buildings is $2 million and this

valuation was made as at 24 August 1993.

I am satisfied that the company appears to be insolvent on its tace. The applicant company proffers an undertaking by a shareholder in Norfeld Pty Limited, a Mr Preston, that for the duration of the proceedings he will not call on an unsecured loan of $1,622,199 which is shown in the balance sheet for the year ended 30 June 1993. Such an undertaking does not provide a readily available and secure fund to meet the respondents' costs. For example, the debt might be assigned or the person giving

such an undertaking could become bankrupt

I am not satistied that this is an appropriate case tor the court to accept such an undertaking and I am not satistied that Mr Preston, bemg a non-party to the proceedings, 1s able to give such an undertaking. However, the primary reason for my decision 1s that I think, in the circumstances, the preferable course 1s for the security to be paid as applied tor in the notice of motion and | therefore order that the