Strategic Financial and Project Services Pty Ltd v Bank of China Limited [2009] FCA 604

FEDERAL COURT OF AUSTRALIA

Strategic Financial and Project Services Pty Ltd v Bank of China Limited [2009] FCA 604

PRACTICE AND PROCEDURE – security for costs – s 1335 Corporations Act 2001 (Cth) and s 56 Federal Court of Australia Act 1975 (Cth) – whether Court's discretion has been enlivened under s 1335 of the Corporations Act – exercise of the discretion to award security for costs Corporations Act 2001 (Cth) s 1335 Evidence Act 1995 (Cth) s 135 Federal Court of Australia Act 1976 (Cth) s 56 Acohs Pty Ltd v Ucorp Pty Ltd & Ors (2006) 155 FCR 181 Beach Petroleum NL v Johnson (1992) 7 ACSR 203 Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 156 FLR 116 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 Juelle Pty Ltd v Buildev Properties Pty Ltd and Ors [2006] NSWSC 302 Warren Mitchell Pty Ltd v Australian Maritime Officers Union (1993) 12 ACSR 1 STRATEGIC FINANCIAL AND PROJECT SERVICES PTY LTD ACN 110 336 966 and ENERGREEN WIND SYSTEMS PTY LTD ACN 100 729 842 v BANK OF CHINA LIMITED ARBN 002 979 955 and COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124

NSD 1900 of 2008

MOORE J

5 june 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1900 of 2008

BETWEEN: STRATEGIC FINANCIAL AND PROJECT SERVICES PTY LTD ACN 110 336 966

First Applicant

ENERGREEN WIND SYSTEMS PTY LTD ACN 100 729 842

Second Applicant

AND: BANK OF CHINA LIMITED

ARBN 002 979 955

First Respondent

COMMONWEALTH BANK OF AUSTRALIA

ACN 123 123 124

Second Respondent

JUDGE: MOORE J

DATE OF ORDER: 5 JUNE 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicants provide security for the first respondent's costs of and incidental to the proceeding in the sum of $250,000 in the form of a bank guarantee from an Australian trading bank (or in such other form as the Court deems fit) to be lodged with the Court in a form satisfactory to the Registrar and a copy of which to be served on the solicitor for the first respondent. 2. The proceeding be stayed as against the first respondent until security for the first respondent's costs has been provided in accordance with the order of the Court. 3. The first respondent have liberty to apply, on seven (7) days' notice, to vary the amount of security for costs required to be provided in accordance with the order of the Court. 4. The costs of the first respondent's notice of motion for security for costs be costs in the cause. 5. The applicants provide security for the second respondent's costs of and incidental to the proceeding in the sum of $200,000 in the form of a bank guarantee from an Australian trading bank (or in such other form as the Court deems fit) to be lodged with the Court in a form satisfactory to the Registrar and a copy of which to be served on the solicitors for the first respondent. 6. The proceeding be stayed as against the second respondent until security for the second respondent's costs has been provided in accordance with the order of the Court. 7. The second respondent have liberty to apply, on seven (7) days' notice, to vary the amount of security for costs required to be provided in accordance with the order of the Court. 8. The costs of the second respondent's notice of motion for security for costs be costs in the cause. 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