Yates Property Corp Pty Ltd & Anor v Borland, John & Ors [1998] FCA 163

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 495 of 1997

BETWEEN: YATES PROPERTY CORPORATION PTY LIMITED

First appellant

ian francis yates

Second appellant

AND: JOHN BOLAND (AS REPRESENTATIVE partner OF ABBOTT TOUT RUSSELL KENNEDY)

first Respondent

Theodore simos

second respondent

john webster

third respondent

JUDGE: DAVIES J

DATE OF ORDER: 13 FEBRUARY 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The appeal as against the second respondent be dismissed. 2. The appellants pay the costs of the second and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 495 of 1997

BETWEEN: YATES PROPERTY CORPORATION PTY LIMITED

First Appellant

ian francis yates

Second Appellant

AND: JOHN BOLAND (AS REPRESENTATIVE partner OF ABBOTT TOUT RUSSELL KENNEDY)

first Respondent

theodore simos

second respondent

john webster

third respondent

JUDGE: DAVIES J

DATE: 13 FEBRUARY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT On 7 October 1997 I ordered that the appellant, Yates Property Corporation Pty Ltd, provide security for the costs of this appeal in proceedings brought against a firm of solicitors, a senior counsel and a junior counsel. The information given to me at the time was that the costs of each party would exceed $100,000. I ordered that security be granted and I did so after Mr Yates had given evidence, had been cross-examined on that evidence, that there was a public flotation of a company in the offing and that Mr Yates and his group could be the recipient of substantial moneys. Moreover Mr Yates indicated during the course of cross‑examination that he was receiving a substantial income. I ordered that security in the sum of $100,000 for each of the respondents be provided. In January of this year I varied the original order because it then appeared that the float had failed and I accordingly reconsidered the matter. At that time no offer of security was made. I ordered that security in the sum of $40,000 for each respondent be provided and that it be provided by 30 January 1998. I reserved liberty to the respondents to apply for dismissal of the appeal should security not be provided. The matter came before me for directions about a week ago and it was then indicated that security had been provided so far as the respondent solicitors were concerned but that the second and third respondents, the senior counsel and the junior counsel, wished to apply for dismissal of the proceedings. I gave leave to them to file a motion returnable this morning. I have been informed that security was last night provided so far as the third respondent is concerned and that no order is sought by the third respondent save as to costs of the motion. I think that the appellant should pay those costs and I so order. This matter has been on foot now for a long time and has involved a good deal of expense and delay. I think it is appropriate that the costs of the motion for dismissal, which has now been rendered unnecessary, should be paid by the appellant. However, so far as the second respondent is concerned, the position is that security has not been provided. Mr Yates has made another affidavit in which he says that he and a Mr Victor Leong are directors of a company, Longhurst & Andrew Pty Ltd, and that Mr Yates is indirectly a shareholder to 50 % of the shares in that company. Mr Yates has deposed that yesterday that company contracted to sell a property at 87 Botany Road, Waterloo for the price of $233,000 and that the moneys charged on the property do not exceed $160,000. He has deposed that completion is expected within six weeks from yesterday. Mr Yates has deposed that he and Mr Leong have resolved that, if within the next seven days the appellant decides to pursue the appeal against the second respondent, they will then arrange that Longhurst & Andrew Pty Ltd will provide a charge against the proceeds of the sale of the property by way of security for the costs. Now, if on a motion for security, that affidavit were put to me and I was asked to make an order by way of security by reference to it I would refuse to do so. I would want to know more about Longhurst & Andrew Pty Ltd and its affairs. I would wish to know that the company was plainly solvent. I would need to know what its financial affairs are. I would need to know more about the value of the land and I would need to know that Mr Yates and Mr Leong as its directors have an entitlement to charge the property of Longhurst & Andrew Pty Ltd for the benefit of Yates Property Corporation Pty Ltd. Therefore, there is not before the court material which would satisfy me that a charge on the property would be appropriate security and should be accepted in lieu of that which I have ordered, namely, a payment in of money or a bank guarantee. The question now is whether the matter should be adjourned for another week or so for the whole matter to be sorted out once again. This is the fourth hearing and Mr Yates gave evidence and was cross-examined in October. I do not think it is appropriate to have another hearing about this matter and I do not think that I should just delay the matter. The appeal has been on foot for quite a long time. It has been fixed for hearing for the last week in March and as at 13 February it is not known whether the appellant wishes to pursue the appeal and whether, if it does wish to pursue the appeal, it is or is not in a position to provide security. I think that, having regard to the time that has passed and to the opportunities that have been given, I should accede to the second respondent's application. Accordingly I will order that the appeal of Yates Property Corporation Pty Ltd as against the second respondent be dismissed with costs. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies