Hanover Properties Pty Ltd v Gallipoli Club Ltd [2000] FCA 1502

FEDERAL COURT OF AUSTRALIA

Hanover Properties Pty Ltd v Gallipoli Club Ltd [2000] FCA 1502

SECURITY FOR COSTS - relevance of delay in the prosecution of proceedings - where application for security deferred on basis that it follow resolution of outstanding pleading issues - delays of both parties not determinative where conduct of proceedings unaffected - where financial burden of order would stifle progress of litigation - responsibility for security upon sole beneficiary of litigation - relevance of undertaking to make monies paid into Court by respondent and due to the applicant available, and a personal guarantee in respect of outstanding sums, in the event of any costs order against the applicant Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 Cited Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1 Cited HANOVER PROPERTIES PTY LTD v THE GALLIPOLI CLUB LIMITED QG 82 OF 1998 KIEFEL J BRISBANE 25 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 82 OF 1998

BETWEEN: HANOVER PROPERTIES PTY LTD (ACN 003 974 034)

APPLICANT

AND: THE GALLIPOLI CLUB LIMITED (ACN 055 501 829)

RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 27 OCTOBER 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The respondent's application for security for costs is dismissed. 2. The monies deposited in Court by the respondent in these proceedings be retained in Court until such time as the parties' costs of and incidental to the proceedings have been agreed or taxed and that such monies then be paid out of Court: 2.1 First, to the respondent in satisfaction of any balance of costs payable by the applicant to the respondent after setting off against such costs any costs payable by the respondent to the applicant. 2.2 Secondly, as to the balance then remaining, to the applicant. 3. Within thirty (30) days of the date hereof, Gregory Laird Story provide to the Registrar of this Court and the respondent his personal guarantee for the payment of the balance of any costs owing to the respondent after payment to the respondent of any amount pursuant to order 1 above in the following form: "In consideration of the Court by order dated 27 October 2000 dismissing the respondent's application for security for costs and in compliance with the Reasons for Judgment of Kiefel J published on 25 October 2000, I, Gregory Laird Story of……… Do Hereby Guarantee to the Registrar of the Federal Court of Australia at Brisbane and the Gallipoli Club Limited ("the respondent") with respect to Proceeding QG 82 of 1998 ("the proceedings") commenced by Hanover Properties Pty Ltd ("the applicant") in the Federal Court of Australia Queensland District Registry, that I will pay to the respondent upon conclusion of the proceedings when the costs thereof are agreed or taxed, the balance of any costs owing to the respondent by the applicant after the respondent has been paid any amount from the money deposited in Court by the respondent to the credit of the proceedings pursuant to the order of Kiefel J made 27 October 2000 ("the guaranteed sum")." And I Further Agree: (a) that this guarantee is a continuing guarantee; (b) my liability pursuant to this guarantee shall not cease by reason of any arrangement, grant of time, waiver, alteration in rights or any other agreement whatsoever reached between the respondent and the applicant unless this guarantee is specifically dealt with by such arrangement or agreement. I do Further Hereby Indemnify the respondent in respect of the guaranteed sum or any part thereof which the respondent might pay. 4. Liberty to apply. THE COURT FURTHER ORDERS THAT: 5. After the expiration of seven days from today, if the applicant has not either notified the Court that it does not intend to rely on conversations or dealings by John Hartley; or has filed and served any affidavits dealing with conversations or dealings by John Hartley upon which the applicant intends to rely, the applicant may not in these proceedings bring any evidence relating to conversations or dealings between it or its servants, employees or agents and John Hartley. 6. The applicant pay the respondent's costs thrown away by the adjournment of 20 October 2000. 7. Costs otherwise incurred in respect of the application be the respondent's costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.