FEDERAL COURT OF AUSTRALIA

Airberg Pty Ltd v Cut Price Deli Pty Ltd [2001] FCA 1895

AIRBERG PTY LIMITED (ACN 051 085 495) & ORS v CUT PRICE DELI PTY LIMITED (ACN 000 917 475) & ORS

NG 388 OF 1995

LINDGREN J

13 DECEMBER 2001

SYDNEY

UPON NOTING the undertaking to the Court given by the second respondent and by his solicitors, Snelgrove & Partners, through his, and their employed solicitor, Mark Milivoje Secivanovic, that no attempt will be made to recover the balance of the second respondent’s taxed costs from Michael Douglas Faulkner or Antonietta Faulkner,

THE COURT ORDERS THAT:

1.         The amount of $5,000 held by the Court as security for costs be paid forthwith to the second respondent.

2.         The first applicant pay the costs of the second respondent of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The second respondent (“Mr Malovany”) moves for an order that $5,000 held by the Court as security for costs be paid forthwith to him.  The notice of motion has been served on the first applicant, Airberg Pty Limited (“Airberg”). 

2                     Although I have referred to “the second respondent” and “the first applicant”, Mr Secivanovic of Snelgrove & Partners, the solicitor appearing for Mr Malovany, asserts that Airberg is the only applicant remaining, that its directors, the second and third applicants, Mr and Mrs Faulkner, are no longer parties, and that the first and fourth respondents have also ceased to be parties. 

3                     On the Bench, I have seen evidence in the Court file of a discontinuance as against the first and fourth respondents but have not yet seen evidence that Mr and Mrs Faulkner have ceased to be applicants.  Mr Secivanovic was not able to assist the Court by identifying precisely when and in what way Mr and Mrs Faulkner ceased to be parties.  This is unsatisfactory.  On the other hand, I note that on 28 February 2001 a Deputy District Registrar of the Court wrote to Snelgrove and Partners stating, among other things, that it appeared to him that the only parties remaining were Airberg, Mr Malovany and Enzo Sgambellone, the third respondent.

4                     Annexed to an affidavit of Mr Snelgrove, the solicitor on the record for Mr Malovany, is a letter from Mr Faulkner consenting to payment of the sum of $5,000 to Mr Malovany on condition that Mr Malovany should not pursue Mr or Mrs Faulkner for the balance of $6,500.  Mr Malovany agrees to this condition.  But Mr Faulkner’s letter went further and insisted that Mr Malovany accept the sum of $5,000 in full satisfaction of his costs – a different matter, since, on any reckoning, Mr Malovany should remain entitled to be a creditor of Airberg in respect of the outstanding balance of $6,500.

5                     I have contemplated making the order sought but suspending its operation for a few days to permit someone to clarify the position as to the circumstances in which, assuming it to be the fact, Mr and Mrs Faulkner ceased to be parties.  But Mr Secivanovic is quite clear that they did cease to be parties and is prepared, consistently with his belief, to offer an undertaking to the Court that Mr Malovany and his firm will not seek to recover the remaining $6,500 or any part of it from Mr and Mrs Faulkner.

6                     I note that Mr Sgambellone, for whom Mr Secivanovic also appears, consents to the payment of the sum of $5,000 to Mr Malovany. 

7                     Accordingly, upon noting the undertaking of the solicitor for the second respondent given to the Court on behalf of the second respondent and of his own firm that no attempt will be made to recover the balance of the taxed costs from Michael Douglas Faulkner, Antonietta Faulkner, or either of them, I will order that:

1.         The amount of $5,000 held by the Court as security for costs be paid forthwith to the second respondent.

2.         The first applicant pay the costs of the second respondent of the motion.

[Since leaving the Bench, a study of the Court file shows that, with leave, in June 1998 the applicants discontinued against the first respondent companies and the fourth respondent, after which the second and third applicants, with leave, discontinued against the remaining second and third respondents. It follows that the correctness of the advice given by the Deputy District Registrar to the solicitors for the second respondent is borne out.]

Associate:

Dated:              4 January 2002