Moussa v Eski Export Pty Ltd [2001] FCA 878

FEDERAL COURT OF AUSTRALIA

Moussa v Eski Export Pty Ltd [2001] FCA 878

PRACTICE AND PROCEDURE – security for costs – corporate applicant likely to be unable to meet award of costs – sole proprietor of company also applicant – natural person resident in jurisdiction – delay in bringing application for security – whether excusable because applicant delivered more witness statements than expected – whether prejudice suffered

Corporations Law s 1335 MARIO MOUSSA and ANOTHER v ESKI EXPORT PTY LTD and OTHERS V 787 OF 2000 HEEREY J 9 JULY 2001 MELBOURNE (BY VIDEOLINK FROM SYDNEY AND HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 787 OF 2000

BETWEEN: MARIO MOUSSA and ANOTHER

APPLICANT

AND: ESKI EXPORT PTY LTD and OTHERS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 9 JULY 2001

WHERE MADE: MELBOURNE (BY VIDEOLINK FROM SYDNEY AND HOBART)

THE COURT ORDERS THAT: 1. The respondents' motion by notice dated 30 June 2001 is dismissed. 2. The respondents pay the applicants' costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY V 787 OF 2000

BETWEEN: MARIO MOUSSA and ANOTHER

APPLICANT

AND: ESKI EXPORT PTY LTD and OTHERS

RESPONDENT

JUDGE: HEEREY J

DATE: 9 JULY 2001

PLACE: MELBOURNE (BY VIDEOLINK FROM SYDNEY AND HOBART)

REASONS FOR JUDGMENT

1 The respondents apply under s 1335 of the Corporations Law for an order that security for costs be provided by the second applicant MCM Services Pty Ltd (MCM). The first applicant, Mr Mario Moussa, has been at all relevant times the sole shareholder of MCM and the director of it.

2 The proceeding arises out of a contract between MCM and the first respondent Eski Export Pty Ltd (Eski), a Tasmanian producer of bottled water, under which MCM was to be, broadly speaking, Eski's Victorian distributor. The applicants claim that the product subsequently delivered was defective to such an extent that the agreement had to be terminated. Mr Moussa alleges various representations as to the quality of the product, as a result of which he gave up his then employment and directed his sole energies to the conduct of the MCM distributorship business. The claims are basically by Mr Moussa for misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) and by MCM in the same regard and also for breach of contract.