Phoenix Court Pty Ltd & Anor v Melbourne Central Pty Ltd [1998] FCA 753

FEDERAL COURT OF AUSTRALIA

COSTS - application by respondent for security for costs - factors relevant to exercise of Court's discretion - joint corporate and natural applicants involved in other Court proceedings - order for security for costs ordered in other proceedings - whether order for costs would stultify the proceedings - whether applicants or shareholders able to provide security for costs. PHOENIX COURT PTY LTD & ANOR v MELBOURNE CENTRAL PTY LTD VG 234 of 1996 GOLDBERG J MELBOURNE 19 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 234 of 1996

BETWEEN: PHOENIX COURT PTY LTD (ACN 007 410 899)

First Applicant

DAVID ANTHONY ROGALSKY

Second Applicant

AND: MELBOURNE CENTRAL PTY LTD (ACN 006 470 560)

Respondent

and BETWEEN: MELBOURNE CENTRAL PTY LTD (ACN 006 470 560)

Cross-Claimant

AND: PHOENIX COURT PTY LTD (ACN 007 410 899)

First Cross-Respondent

DAVID ANTHONY ROGALSKY

Second Cross-Respondent

KNIGHT FRANK (VIC) PTY LTD (ACN 004 428 737)

Third Cross-Respondent

judge: goldberg j

date of order: 19 june 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Unless by 4.00pm on 26 June 1998 the applicants file and serve further answers to paragraph 1 to 8 inclusive and paragraphs 10 to 14 inclusive to the respondent's request for further and better particulars filed 21 November 1997, the applicants' claim be dismissed. 2. Unless by 4.00pm on 26 June 1998 the applicants make discovery of all financial statements, records and primary source material relating to the financial position and trading results of the first applicant in respect of the business operations at all material times conducted by the first applicant at retail outlets at the Highpoint and Box Hill shopping centres the applicants' claim be dismissed. 3. Unless by 4.00pm on 26 June 1998 the applicants file and serve an affidavit stating whether any such document or documents of the classes described below is in the possession, custody or power and if it has been or is no longer in their possession, custody or power, when they parted with it and what has become of it namely (a) cash books, cash receipts and payments journals of the business operated by the first applicant at Melbourne Central Shopping Centre between in and about September 1991 and December 1994; (b) bank records, statements and deposit books of the business operated by the first applicant at Melbourne Central Shopping Centre between in and about January 1995 and March 1996, the applicants' claim be dismissed. 4. Paragraph 10 of the order made by Goldberg J on 20 May 1998 be varied to provide that on or before 4.00pm 17 July 1998 the respondent and the third cross‑respondent file and serve any affidavits upon which they intend to rely at trial. 5. Paragraph 11 of the orders of Goldberg J on 20 May 1998 be varied to provide that on or before 24 July 1998 the parties file and serve any notice of objection they have to any part of the affidavits filed by another party. 6. Paragraph 12 of the orders of Goldberg J on 20 May 1998 be varied to provide for on or before 31 July the parties file and serve any notice of answers or responses to objections to admissibility of evidence. 7. Paragraph 13 of the orders of Goldberg J on 20 May 1998 be varied to provide that on or before 24 July 1998 the applicants file and serve an outline of argument setting out contentions of fact and law. 8. Paragraph 14 of the orders of Goldberg J on 20 May 1998 be varied to provide that on or before 31 July 1998 the respondent and the third cross‑respondent file and serve an outline of argument setting out contentions of fact and law. 9. The first applicant provide security in the sum of $10,000 in the form acceptable by the Victorian District Registrar by 4.00pm on 10 July 1998 and in default of the provision of such security the application of the first applicant be stayed until further order. 10. The applicants pay the respondent's costs of and incidental to the orders sought in relation to particulars and further discovery, to be taxed as between solicitor and client but otherwise the respondent's costs of the motion for security for costs be paid by the applicants on a party to party basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.