Acohs Pty Ltd v Merck Pty Ltd & Ors [1997] FCA 573

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - security for costs - where applicant company has limited assets - shareholders of applicant company are likely to fund the litigation and will be the true beneficiaries of the company's business and of the litigation - whether a factor in favour of exercising discretion to order security - whether factors weighing against an order for security are relevant to discretion to discount amount of security ordered. Corporations Law, s1335 Federal Court of Australia Act 1976 (Cth), s 56

Pasdale Pty Ltd v Concrete Constructions (1995) 131 ALR 268 Petite Pty Ltd v Byrd Smith and Associates (Supreme Court of Victoria, Beach J, 23 April 1996, unreported) Robust Software v Mann Judd Reis Pty Ltd (Federal Court of Australia, Merkel J, 11 February 1997, unreported). Deltrend Pty Ltd v AST Australia Pty Ltd (1995) 16 ACSR 762 ACOHS PTY LTD V MERCK PTY LTD AND ORS VG 75 OF 1997

MERKEL J MELBOURNE 20 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIAN DISTRICT REGISTRY ) VG 75 of 1997 ) GENERAL DIVISION )

BETWEEN: ACOHS PTY LTD (ACN 009 572 187)

Applicant

AND: MERCK PTY LTD (ACN 005 064 791)

First Respondent

MERCK LTD

Second Respondent

MERCK KGaA

Third Respondent

MICHAEL CULVER

Fourth Respondent

RICK BIEZEN

Fifth Respondent

JUDGE(s): MERKEL J PLACE: MELBOURNE DATE: 20 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. Within 21 days, the applicant, ACOHS Pty Ltd, give security for costs of the respondents, Merck Pty Ltd; Michael Culver and Rick Biezen in the sum of $50,000 in the form of bank guarantee, cash or such other form of which the Registrar approves. 2. Liberty to apply is reserved generally but in particular for a variation of these orders in accordance with reasons for judgment delivered on 20 June 1997. 3. Reserve costs.