FEDERAL COURT OF AUSTRALIA

The Council of the City of Sydney v Goldspar Australia Pty Limited

[2004] FCA 1023

THE COUNCIL OF THE CITY OF SYDNEY v GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) and DOUGLAS RAWSON-HARRIS

N 728 OF 2002

GYLES J

19 JULY 2004

SYDNEY

THE COURT ORDERS THAT:

1.      On or before 2 August 2004 the cross-respondent lodge security for costs in the amount of $100,000 by way of bank guarantee issued by an Australian trading bank or cash deposit in a form to be agreed between the parties’ legal representatives or, in the absence of such agreement, as determined by the Deputy Registrar.

2.      Costs of this motion are reserved.

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

REASONS FOR JUDGMENT

1                     I do not propose to set out the history of this matter beyond saying that a late application to amend to raise this cross-claim was acceded to during the course of trial on certain conditions, one of which was the provision of security for costs. There is no issue but that security is required. The question is quantum.

2                     The cross-respondent submits that the Court should make a realistic estimate of the party and party costs which would be incurred up to the time of judgment and supports that proposition by reference to authority. If that be the case then there is evidence from the instructing solicitor which estimates the total costs as well over $300,000. That is supported by a solicitor who has expertise in the assessment of costs. It is submitted on the other side that there is no occasion to decide the quantum of costs once and for all and that a staged response is appropriate in a case of this sort.

3                     The discretion given to the Court in this respect is wide and although decisions of other Judges are interesting they do not provide any limit or fetter upon the discretion. In my opinion, in the present case, the quantum fixed should be sufficient to cover the reasonable costs of getting this case to the stage where it is ready for trial but need not at this stage include an amount for the trial itself.

4                     Doing the best I can with the evidence before me it seems to me that obtaining statements from the potential witnesses for the cross-respondent and the issues relating to discovery, which will be the two principal aspects of preparation, should be completed for well under $100,000. Although preparation will not be quite so limited I have no doubt that the amount of $100,000 is an amount sufficient to have the matter reasonably prepared to the stage where the Court could fix a date for hearing.

5                     That order would contemplate that there be further preparation to be done afterwards which would need to be catered for by consideration of costs at that stage. In all the circumstances I think the offer of $100,000 is appropriate provided that the basis for it is understood. I therefore make order 1 in the short minutes of order which have been proposed.

Associate:

Dated: 5 August 2004