33 South Pty Ltd v Fitzgerald [2008] FCA 1960

FEDERAL COURT OF AUSTRALIA

33 South Pty Ltd v Fitzgerald [2008] FCA 1960

PRACTICE AND PROCEDURE – notice of motion – application for stay pending appeal PRACTICE AND PROCEDURE – notice of motion – application for security for costs pending appeal Held: stay declined and order for provision of security made Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Trade Practices Act 1974 (Cth) Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1366 Honey v Australian Airlines Ltd (1990) 18 IPR 185 Tait v Bindal People [2002] FCA 322

33 SOUTH PTY LTD (ACN 116 956 962) and ANDREW JONES v TERRY FITZGERALD and HOT BUTTERED INTERNATIONAL PTY LTD (ACN 002 011 734)

NSD1383 of 2008

JAGOT J

19 DECEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1383 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: 33 SOUTH PTY LTD (ACN 116 956 962)

First Appellant

ANDREW JONES

Second Appellant

AND: TERRY FITZGERALD

First Respondent

HOT BUTTERED INTERNATIONAL PTY LTD (ACN 002 011 734)

Second Respondent

JUDGE: JAGOT J

DATE OF ORDER: 19 DECEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appellants' notice of motion filed 5 November 2008 is dismissed. 2. The appellants are to provide security for the respondents' costs of the proceedings in the sum of $25,0000 in a form acceptable to the New South Wales District Registrar within 28 days failing which the proceedings are stayed. 3. Exhibit A is returned. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA