McMahon v Deutsche Australia Limited [2001] FCA 1116

FEDERAL COURT OF AUSTRALIA

McMahon v Deutsche Australia Limited [2001] FCA 1116

PRACTICE AND PROCEDURE – security for costs – litigation commenced in 1998 – hearing fixed for last quarter of 2001 for two months – no prior application for security – corporate applicants controlled by family – applicants already spent substantial funds on legal expenses – family means limited to extent that if security ordered then proceedings would be inevitably stayed – otherwise sufficient family funds to maintain litigation at first instance – appointment of voluntary administrators to family companies – application for security prompted by announcement as to obtaining third party funding – funding not eventuated – no security obtainable from applicant natural persons – no security obtainable from corporate applicants provided undertaking given to notify provision of third party funding.

Trade Practices Act 1974 (Cth) ss 51AA, 52

Re Moage (1997) 77 FCR 81 cited James v ANZ Banking Group Ltd (1985) 9 FCR 442 referred to Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300 referred to Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68 referred to Montague Mining Pty Ltd v Gore (t'as Clayton Utz) [2001] FCA 791 referred to Knight v F P Special Assets Ltd (1992) 174 CLR 178 referred to Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 referred to McMAHON & ORS v DEUTSCHE AUSTRALIA LIMITED & ORS NG 1308 OF 1998 CONTI J 17 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1308 OF 1998

BETWEEN: BRETT SAMUEL McMAHON

FIRST APPLICANT/CROSS DEFENDANT

DENISE ROCHELLE McMAHON

SECOND APPLICANT/CROSS DEFENDANT

B & D McMAHON INVESTMENTS PTY LIMITED (ACN 071 184 631) (SUBJECT TO DEED OF COMPANY ARRANGEMENT)