FEDERAL COURT OF AUSTRALIA McCallum & Co Pty Ltd v Allen Manufacturing Co Pty Ltd [2002] FCA 1399 PRACTICE & PROCEDURE – application by respondent to pay costs ordered by instalments – application to stay execution of costs order pending outcome of motion – whether any utility in making order where no reasonable prospect of respondent meeting any instalment. McCALLUM & CO PTY LIMITED V ALLEN MANUFACTURING COMPANY PTY LIMITED AND ALAN GEORGE HARPER NO. N 1059 OF 1999 BEAUMONT J 7 NOVEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1059 OF 1999 BETWEEN: McCALLUM & CO PTY LIMITED APPLICANT AND: ALLEN MANUFACTURING COMPANY PTY LIMITED FIRST RESPONDENT ALAN GEORGE HARPER SECOND RESPONDENT JUDGE: BEAUMONT J DATE OF ORDER: 7 NOVEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The two notices of motion be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1059 OF 1999 BETWEEN: McCALLUM & CO PTY LIMITED APPLICANT AND: ALLEN MANUFACTURING COMPANY PTY LIMITED FIRST RESPONDENT ALAN GEORGE HARPER SECOND RESPONDENT JUDGE: BEAUMONT J DATE: 7 NOVEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT BEAUMONT J: 1 Before the Court are two notices of motion. The first, dated 28 October 2002, is a motion sought by Mr Harper, the second respondent, who is unrepresented, seeking that the order in respect of costs ordered against him, now taxed at approximately $91,000.00, be paid by instalments of $800.00 per calendar month. Mr Harper supports that motion by an affidavit, sworn on 31 October 2002, in the following terms: "1. I have been un-employed since September 2001. 2. Since becoming un-employed I have been supported by my wife. 3. I presently do not have the financial means or the borrowing capacity that would enable me to satisfy costs orders made against me in the present matter. 4. It is my desire to satisfy the costs orders referred to in paragraph 3 herein and to this extent it is my intention to move the Court for certain orders by way of Notice of Motion that will enable me to pay such costs orders by instalments and to this extent I have on 28 October 2002 lodged such Notice of Motion at the Court Registry. 5. At this time I wish to move the Court for orders that will stay execution until such time as the Notice of Motion referred to in paragraph 4 herein is heard by the Honourable Court." 2 As foreshadowed in par 5 of the affidavit, Mr Harper has also filed a notice of motion, dated 31 October 2002, seeking that execution in respect of the cost orders be stayed until the notice of motion previously mentioned had been dealt with. The certificates of taxation for the bulk of the costs, that is to say, the sum of approximately $71,000.00 are dated 6 June 2002. 3 Mr Harper has informed me that he is hoping to secure employment with a friend but at the moment his position is as stated in par 3 of his affidavit sworn 31 October 2002. He has also informed me that he and his wife have mortgaged his only asset, namely, the family home, for a substantial amount and that there are other creditors, some contingent, but that he has no prospect of funding the costs orders as things presently stand. 4 Having inquired of Mr Harper as to his financial position generally, I am satisfied that he is unable to pay his debts as they fall due. However, I have suggested to him that he may be able to come to some arrangement with his creditors which will avoid any formal treatment of his affairs by way of administration. That is, of course, a matter for Mr Harper and no doubt a matter also for his creditors. 5 However, returning to the notices of motion, it seems to me that there would be no utility at all in ordering the payment of the judgment debt by instalments of any kind, whether of $800.00 per month or any other amount. The reality is that Mr Harper has no assets and no income at the moment and no reasonable prospect in the future of meeting any such instalment. For those reasons I decline to order that the judgments be paid by instalments. ORDERS 6 Accordingly, I dismiss both notices of motion with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont Associate: Dated: 14 November 2002 Counsel for the Applicant: Mr M Condon Solicitor for the Applicant: PricewaterhouseCoopers Legal Solicitor for the First & Second Respondent: Mr Harper appeared in person Date of Hearing: 7 November 2002 Date of Judgment: 7 November 2002