Federal Court of Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. NG 364 of 1995
GENERAL DIVISTON
BETWEEN : RAMSET FASTENERS (AUST) PTY LIMITED Appellant AND: ADVANCED BUILDING SYSTEMS
PTY LIMITED First Respondent
THE BURKE COMPANY LIMITED Second Respondent
29 NOVEMBER, 1996
REASONS FOR JUDGMENT
LOCKHART J.
This is a motion for a stay of an order for costs made by a Full Court of this Court of which I was a member on 26 April 1996. The orders of the Court allowed the appeal from the judgment of a judge of the Court and, amongst other things, ordered that the respondents to the appeal - one of whom is presently the applicant on the motion before the Court - should pay the costs of the successful appellant of the
proceeding at first instance and of a cross appeal.
The basis of the motion, which is opposed, is essentially that the moving party, Advanced Building Systems Pty Limited, is in a financial position such that it would not be able to meet the order for costs without placing itself in such jeopardy that it could not prosecute a motion for leave to
appeal to the High Court and, in particular, any appeal that
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may ensue thereafter, if the motion for leave to appeal is
successful. The motion is before the High Court and it is
likely that it will be heard in February next year.
Counsel for the successful party to the appeal opposes the motion on the ground that it has not been established that the financial position of Advanced Building Systems Pty Limited is such that it will necessarily jeopardise its prospects of prosecuting its appeal or indeed the anterior
motion for special leave to appeal.
The principles are well established and I am content to rely on the exposition of them made by Heerey J. in Henderson
v Amadio Pty Limited (1996) 136 ALR 593.
Here it is claimed that the points of law involved in the matter are arguable, notwithstanding that the Full Court unanimously reversed the relevant findings of the primary
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