Omega Data Furniture Pty Ltd v Email Furniture Ltd [1995] FCA 641

CATCHWORDS PRACTICE AND PROCEDURE - costs - security for - jurisdiction under s 1335 of Corporations Law and s 56 of Federal Court of Australia Act 1976 (Cth) - sufficient to deal with application for security under s 56 - whether Court should assess probability of applicant's success or failure - effect of proffering by directors of applicant of undertaking to indemnify respondent in respect of any costs of respondent which applicant may be ordered to pay - failure of applicant to discharge onus of establishing that all those standing behind it cannot provide security - therefore not established by applicant that an order for security would stultify proceedings. Corporations Law, s 1335. Federal Court of Australia Act 1976, s 56. Federal Court Rules, O 28 r 3. Equity Access Ltd v Westpac Banking Corporation (1989) 11 ATPR 40-972 (FCA/Hill J). K P Cable Investment Pty Ltd v Meltglow Pty Ltd (1995) 13 ACLC 437 (FCA/Beazley J). Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 (FC). Erolen v Baulkham Hills Shire Council (1993) 10 ACSR 441 (NSW/Powell J). Jalpalm Pty Ltd v Hamilton Island Enterprises Pty Ltd (1995) 16 ACSR 532 (FCA/Kiefel J). P S Chellaram Pty Ltd v China Ocean Shipping Co (1991) 65 ALJR 642 (McHugh J) Impex Pty Ltd v Crowner Products Ltd (1994) 13 ACSR 440 (Qld/FC). OMEGA DATA FURNITURE PTY LIMITED v EMAIL FURNITURE LIMITED No NG 869 of 1994 Lindgren J Sydney 22 August 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 869 of 1994 GENERAL DIVISION ) BETWEEN: OMEGA DATA FURNITURE PTY LIMITED Applicant AND: EMAIL FURNITURE LIMITED Respondent EMAIL FURNITURE LIMITED Cross-Claimant OMEGA DATA FURNITURE PTY LIMITED First Cross-Respondent JAMES CAMERON Second Cross-Respondent ADRIAN LANE-MULLINS Third Cross-Respondent CORAM: Lindgren J PLACE: Sydney DATE: 22 August 1995 MINUTE OF ORDERS THE COURT: 1. ORDERS that the applicant give security in a sum of $10,000 for the payment of costs in respect of the period from 1 May 1995 to the determination of these proceedings that may be awarded to the respondent against the applicant. 2. ORDERS that the security referred to in Order 1, be given within 21 days from the date of the making of this order and subject to any order made on application by the applicant pursuant to the leave reserved in Order 5 below, be in the form of payment of the said sum to Clayton Utz, the solicitors for the respondent, upon their undertaking to the Court (which undertaking is hereby noted) to hold that amount in their trust account pending the final hearing and determination of these proceedings. 3. ORDERS that the proceeding be stayed until the applicant has complied with Orders 1 and 2. 4. ORDERS that the respondent's costs on its motion for security, up to and including 22 August 1995, be part of its costs of the proceedings. 5. ORDERS that the parties have liberty to apply generally on 3 days' notice and that such liberty shall extend to include liberty to the applicant to apply for a variation in the form of the security, and liberty to the respondent to apply for an order for the provision of further security. 6. ORDERS that upon compliance with Orders 1 and 2 above, the applicant may have the proceeding on the substantive application restored to the list upon seven days' written notice. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.