Kochergen, Jacob & Anor v Bell, Geoffrey York & Ors [1998] FCA 1555

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 87 of 1995

BETWEEN: jacob jack kochergen

and

joaquin investments pty ltd

(acn 008 165 197)

Applicants

AND: geoffrey york bell,

and: bruce raymond spangler,

and: cw pty ltd (acn 007 901 546),

nicholas john storer,

christopher martin garrett

and

bentleys services pty ltd (acn 007 534 643)

Respondents

geoffrey york bell,

bruce raymond spangler,

cw pty ltd (acn 007 901 546),

nicholas john storer,

christopher martin garrett,

bentleys services pty ltd (acn 007 534 643)

and

envirowaste enterprises pty ltd (acn 008 046 562)

cross claimants

jacob jack kochergen,

joaquin investments pty ltd (acn 008 165 197),

jackie billie kochergen

and

elaine ann kochergen

cross respondents

JUDGE: MANSFIELD J

DATE: 4 december 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT This matter has had a long and unfortunate procedural history. It commenced as long ago as 15 November 1995. The respondents changed solicitors shortly before the trial was proposed to commence on 12 October 1998. Over the opposition of the applicants, the matter was adjourned to a date to be fixed. The first and second respondents and the fourth to sixth respondents are now represented by different solicitors. Shortly before the date fixed for the trial the respondents sought, and were granted, leave to amend their defences extensively. The cross claim instituted by the respondents against the applicants and two other persons has been dismissed. The first to third respondents ("the principal respondents") on 25 September 1998 applied for an order that the applicants provide security for costs, and that the action be further stayed until that security is provided. It was acknowledged by counsel for the applicants that the motion should be considered as if it were made on the eve of trial, notwithstanding that the trial has been adjourned, because that adjournment was itself granted on the application of the principal respondents. They were simply unable to be ready for the trial with their new solicitors. There were reasons which it is now unnecessary to expand upon which caused their previous solicitors to cease acting for them rather belatedly. The motion is brought under s 56 of the Federal Court of Australia Act 1976 (Cth) and O 28 of the Federal Court Rules, and in respect of the corporate applicant under s 1335(1) of the Corporations Law ("the Law"). The primary material before me on this application (other than the costs estimate) is all either hearsay or assertive by reference to exhibited documents. The parties have not themselves deposed themselves to any matters, except by their respective solicitors asserting their respective position.