Bayley & Associates Pty Ltd v Jenkins

REASONS FOR JUDGMENT 1 My summary reasons for making these orders are as follows. 2 I think the motion is premature, having been moved on prior to the filing of a defence by the second and fourth respondents. 3 The premature movement of the motion aside, I am firmly of the view that there is nothing in the evidence that has been filed by the applicant, or by the second and fourth respondents, to indicate that there is any real likelihood that the applicant will not be in a position to meet any adverse costs order made against it in an amount up to and including the amount of security sought - that is, in the sum of $103,304. 4 I am also firmly of the view that notwithstanding that the balance sheet of the trust fund of which the applicant is trustee, records the net assets of the trust fund in the nominal sum of $50, the balance sheet does not, in my view, properly reflect the worth and value of the enterprise carried on by the applicant as trustee of the trust fund, and so much is made apparent by the evidence that has been filed and read on behalf of the applicant in the affidavits of Ms Ruth Dale Bayley and Mr Dominic Bartone. 5 Finally, I would merely observe that, just as in the case of a $2 company carrying on an active going concern in its own right, which is generating very substantial amounts of income and which employs a number of employees, there is no reason, in my view, that a company which is carrying on business in its capacity as trustee of a trust fund, as being in any different position: see Soul Pattinson Telecommunications Pty Ltd v Subex Americas Inc [2009] FCA 651 (Perram J), which was relied on by the applicant in its opposition to the motion. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.