BCI Finances Pty Limited (In Liq) v Binetter

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 56

Solicitor for the Plaintiffs: Coxoff Cudmore Knox

Solicitor for the First, Fifth, Seventh and Ninth Defendants: Hoffmann & Koops

Solicitor for the Second and Third Defendants: Brown Wright Stein Lawyers

Solicitor for the Fourth, Eighth and Tenth Defendants: Polczynski Lawyers

Solicitor for the Sixth Defendant: ClarkeKann Lawyers

Solicitor for Nudie Franchising Systems Pty Limited (ACN 102 561 923), Nudie Foods Pty Limited (ACN 107 914 554), Nudie Pty Limited (ACN 102 660 024), Real Juice Pty Limited (ACN 102 224 842), Nudie Foods Australia Pty Limited (ACN 110 000 265) and Tamarama Fresh Juices Australia Pty Limited (ACN 003 994 072): Speed and Stracey Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION SAD 5 of 2015

BETWEEN: BCI FINANCES PTY LIMITED (IN LIQUIDATION)

EGL DEVELOPMENT (CANBERRA) PTY LIMITED (IN LIQUIDATION)

AND: GARY ROBERT BINETTER IN HIS CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE EMIL BINETTER

MARGARET BINETTER IN HER CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE ERWIN BINETTER

JUDGE: FOSTER J DATE OF ORDER: 31 JULY 2015 WHERE MADE: SYDNEY

1. The application by Nudie Franchising Systems Pty Limited (ACN 102 561 923), Nudie Foods Pty Limited (ACN 107 914 554), Nudie Pty Limited (ACN 102 660 024), Real Juice Pty Limited (ACN 102 224 842), Nudie Foods Australia Pty Limited (ACN 110 000 265) and Tamarama Fresh Juices Australia Pty Limited (ACN 003 994 072) for an order that the plaintiffs provide appropriate security for their costs of and incidental to this proceeding or, alternatively, for an order joining the Commissioner of Taxation (Cth) (Commissioner) as a party to this proceeding be dismissed.
2. The costs of and incidental to the said application referred to in Order 1 above be reserved to be considered when judgment on the plaintiffs' claims has been delivered and in light of that judgment.
3. The Interlocutory Application filed by the sixth defendant on 29 June 2015 be dismissed.
4. The sixth defendant pay the plaintiffs' costs of and incidental to the said Interlocutory Application.
5. By 5.00 pm on 3 August 2015, the plaintiffs and the Commissioner notify the parties to this proceeding and the Associate to Foster J which of the following options for the provision of security for the defendants' costs of this proceeding they choose, namely: (a) A cash deposit of $2,000,000 with the Court comprising a security amount of $500,000 for each of the following defendant groupings, namely: (i) The first, fifth, seventh and ninth defendants (Gary Binetter group); (ii) The fourth, eighth and tenth defendants (Andrew Binetter group); (iii) The second and third defendants (Margaret Binetter group); and (iv) The sixth defendant (Michael Binetter). (b) Alternatively, one or more bank guarantees in an appropriate form in favour of each of the defendants' groups described in subpar (a) above to the intent that $500,000 is secured by such guarantee or guarantees for each such group as security for that group's costs; or (c) Alternatively, the provision of an undertaking to the Court by the Commissioner in the following terms: The Commissioner of Taxation (Cth) hereby undertakes to the Court to pay directly to any defendant party who obtains a costs order against any one or more of the plaintiffs in the present proceeding the amount of such costs so ordered as taxed or agreed.
6. The plaintiffs pay the defendants' costs of and incidental to their applications for an order requiring the plaintiffs to post appropriate security for their costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION SAD 5 of 2015

BETWEEN: BCI FINANCES PTY LIMITED (IN LIQUIDATION)

EGL DEVELOPMENT (CANBERRA) PTY LIMITED (IN LIQUIDATION)

AND: GARY ROBERT BINETTER IN HIS CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE EMIL BINETTER

MARGARET BINETTER IN HER CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE ERWIN BINETTER

JUDGE: FOSTER J DATE: 31 JULY 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This proceeding was commenced by the first plaintiff (BCI Finances) on 15 January 2015 in the South Australia District Registry of this Court. It was subsequently transferred to the New South Wales District Registry. 2 On the same day that the proceeding was commenced, BCI Finances applied for urgent interlocutory relief against some of the defendants. That relief was granted in part. Subsequent applications led to further interlocutory relief being granted by the Court. 3 When the proceeding was commenced, BCI Finances was the only plaintiff. At that time, six individuals were named as defendants along with four corporate entities associated with one or more of those individuals. There were ten defendants altogether. 4 The number and identity of the defendants has not changed since the proceeding was instituted. However, on 5 June 2015, I added as additional plaintiffs the second, third and fourth plaintiffs, each of which was wound up in insolvency by order of the Supreme Court of NSW made on 2 March 2015 upon the application of the Commissioner of Taxation (Cth) (the Commissioner). 5 The defendants may be sensibly grouped into four separate groups. These are: (a) The Gary Binetter group comprising the first, fifth, seventh and ninth defendants; (b) The Andrew Binetter group comprising the fourth, eighth and tenth defendants; (c) The Margaret Binetter group comprising the second and third defendants; and (d) Michael Binetter, who is the sixth defendant. 6 The defendant parties have conducted the litigation so far in the groups which I have identified. The defendants' legal representation has corresponded with those groupings. 7 There is also a group of third parties (the Nudie parties) who are not parties to this proceeding but who are affected by certain freezing orders made by the Court against them some time ago. Those parties are Nudie Franchising Systems Pty Limited (ACN 102 561 923), Nudie Foods Pty Limited (ACN 107 914 554), Nudie Pty Limited (ACN 102 660 024), Real Juice Pty Limited (ACN 102 224 842), Nudie Foods Australia Pty Limited (ACN 110 000 265) and Tamarama Fresh Juices Australia Pty Limited (ACN 003 994 072). 8 The final hearing of this proceeding is fixed to commence on 31 August 2015 with a current estimate of five days. The matter is factually complex. The evidence is largely documentary although the plaintiffs intend to call three or four witnesses. It is very unlikely that the defendants will call any witnesses or tender any documents. 9 Each group of defendants has applied to the Court for an order that the plaintiffs provide security for that group's costs. The Nudie parties have also applied for security for their costs. 10 The plaintiffs do not suggest that the Court should determine the question of security upon a basis that ignores the current groupings of the defendants or which assumes that the level of representation reflected in those groupings is inappropriate. The plaintiffs accept that the Court should consider the provision of security for each of the particular groups which I have identified. The plaintiffs also accept that, because they are insolvent, the Court's jurisdiction to order security has been engaged. The issues in dispute relate to the manner in which the Court's discretion should be exercised. 11 The only known creditor in the liquidation of the plaintiff corporations is the Commissioner. The Commissioner is the person who will derive the entire benefit of this proceeding should the plaintiffs be successful. The Commissioner is funding the present proceeding pursuant to a Deed of Indemnity entered into between the liquidators of the plaintiffs and the Commissioner in early 2015 (Principal Deed of Indemnity), the execution of which was approved by the Court (as to which see Sheahan, In the Matter of BCI Finances Pty Ltd (In Liq) [2015] FCA 121). Most of the terms of the Principal Deed of Indemnity have been kept confidential as between the liquidators of BCI Finances and the Commissioner. 12 Soon after the proceeding was commenced, some of the defendants raised the question of security for costs. Thereafter, the parties engaged in many communications back and forth concerning the form which any security should take and the quantum of such security. For some time now, there has been no real dispute between the plaintiffs, on the one hand, and the defendants, on the other hand, of the need for appropriate provision to be made by way of security for the defendants' costs. 13 Each of the Gary Binetter group and Andrew Binetter group seeks security in the amount of $500,000. Michael Binetter initially sought security in the amount of $510,000 but, as a result of the joinder of the additional plaintiffs, now seeks $900,000. The Margaret Binetter group seeks $350,000. The Nudie parties seek protection for the costs which they have already incurred and which they will incur in the future. 14 The Nudie parties claim an order for security in the amount of $200,000. They point to the fact that substantial costs have already been incurred by them in addressing the freezing orders made against them - as at 21 May 2015, those parties say that they have incurred costs totalling $85,590.19 - and that further costs will be incurred in respect of the final hearing of the plaintiffs' claims. However, they acknowledge that no substantive relief is sought against them. Rather, it is clear that the causes of action which underpin the freezing orders obtained against the Nudie parties are the causes of action pleaded and relied upon against the defendants. 15 The Nudie parties submit that the appropriate way of addressing the claims for security made by the defendants and the Nudie parties is for the Court to join the Commissioner as a party to the proceeding. They also seek the costs of their application for security. 16 The Gary Binetter group, the Andrew Binetter group, the Margaret Binetter group and the Nudie parties have reserved their position in relation to seeking an increase in the amount of security depending upon the result of their initial applications for security. They may wish to argue that the amount of security should be increased for the same reasons as are now advanced on behalf of Michael Binetter. 17 The plaintiffs filed a Written Submission on 19 May 2015 in which they contended that they had provided adequate security for the costs of all of the defendants. They argued that adequate security was in place as a result of BCI Finances entering into a Deed of Indemnity dated 28 April 2015 with the Commissioner (Deed of Indemnity). The plaintiffs acknowledge that they have not made any provision for security for the costs of the Nudie parties. The Deed of Indemnity does not mention those parties at all. The plaintiffs argue that they are not obliged to secure the costs of those parties. 18 The defendants are not content with the arrangements made between BCI Finances and the Commissioner in respect of their costs. The defendants seek a more certain arrangement either by way of payment of cash into Court or the provision of one or more bank guarantees in appropriate terms. At my suggestion, some of the defendants have taken up the idea that the most appropriate way of securing their costs is by joining the Commissioner as a party to this proceeding. Other defendants do not support such an order. The Commissioner has been given leave to make submissions on the point. In those submissions, the Commissioner opposes any order joining him as a party to this proceeding. He has proffered an undertaking to the Court as one means of dealing with the outstanding applications for security for costs in the event that the Court is not satisfied that the Deed of Indemnity provides appropriate security for the defendants. The proffered undertaking is considered by the defendants to be inadequate. However, the defendants accept that an appropriately worded undertaking from the Commissioner would be a satisfactory method of securing their costs. 19 The submissions of the defendants and of the Nudie parties are contained in Written Submissions filed on behalf of each of the four defendant groups and on behalf of the Nudie parties. Those documents will be retained in the Court file. 20 Subject to the reservation noted at [16] above, each of the Gary Binetter group and the Andrew Binetter group, on the one hand, and the plaintiffs, on the other hand, agree that: (a) Security for those defendants' costs must be provided; and (b) The amount of that security should be $500,000. 21 The dispute between the plaintiffs and those defendants concerns the method by which security is to be provided. The plaintiffs and the Commissioner say that the defendants should be satisfied with the terms and effect of the Deed of Indemnity. The defendants argue that the Deed of Indemnity does not provide adequate protection for them. They variously seek cash, a bank guarantee or the joinder of the Commissioner as a party in order to render him directly amenable to the jurisdiction of the Court in respect of costs. The defendants contend that the Court can and should join the Commissioner as a party even if the only reason for doing so is to render him potentially liable for an order for costs in favour of the defendants. 22 The Margaret Binetter group seeks $350,000 but only to cover the period up to the first day of the hearing. That group reserved the right to seek to top up that amount. The plaintiffs and the Commissioner seek to restrict that group to that amount for the whole case including the hearing. Otherwise, the Margaret Binetter group takes the same points about the adequacy of the Deed of Indemnity as are taken by the Andrew Binetter group. 23 Michael Binetter seeks an order for security in the amount of $900,000 provided either by cash deposit or bank guarantee or the joinder of the Commissioner as a party to the present proceeding. 24 The parties have tendered a great deal of evidence in support of their respective positions including vast amounts of correspondence in which their respective positions have been set out. It is not necessary to traverse that correspondence in detail. It is clear that, right from the start, the defendant parties have been seeking to procure adequate security for their costs. There is no question of delay here. Also, the plaintiffs accept that security must be provided. After all, without the Commissioner's backing, they would have no funds to conduct this proceeding. Further, although the plaintiffs and the Commissioner have sought to restrict the Margaret Binetter group to $350,000 for the whole proceeding, that endeavour is, at best, opportunistic. There seems to be broad agreement that, subject to the potential for an increase in the costs to be incurred in this proceeding brought about by the joinder of additional plaintiffs, $500,000 per defendant grouping is an appropriate amount. I propose to determine the present applications upon the basis that, subject to the reservation to which I have referred at [16] above, $500,000 is an appropriate amount to order in respect of each defendant group as security for their costs. 25 The Nudie parties are in a special position. No relief is sought against those parties. The justification for the freezing orders made against them will have to be assessed when the result of the case is known. At the moment, I have difficulty accepting that those parties need to be present at the final hearing of the plaintiffs' claims. I do not consider that the Nudie parties have made out a case for security. 26 The Nudie parties also seek the costs of the present application. I will not make any order as to the costs of that application at the moment. In my judgment, the appropriate order at the moment is that the costs of that application be reserved to await final judgment in this proceeding. It is likely that the result of the present litigation will have a substantial bearing on whether the Nudie parties should have the benefit of an order for costs at all and, if so, against whom. 27 For all of the above reasons, the only real dispute to be determined by the Court concerning security for costs as between the plaintiffs and the Commissioner, on the one hand, and the defendants, on the other hand, is the form in which security should be provided. 28 As I have already said, the plaintiffs and the Commissioner submit that the Deed of Indemnity provides adequate protection for the defendants. The defendants argue that the Deed of Indemnity is deficient and that the Court should order that cash be deposited with the Court or, alternatively, that an appropriate bank guarantee be provided or, alternatively, that the Commissioner be joined as a party. 29 In order to determine the principal matter in dispute amongst the parties, it is necessary to consider the terms of the Deed of Indemnity.

The Deed of Indemnity Dated 28 April 2015 30 The Deed of Indemnity was entered into on 28 April 2015. The only parties to the Deed are the Commissioner and the liquidators of each of the plaintiff corporations. 31 By the Deed, the Commissioner has undertaken to indemnify the liquidators up to a total amount of $1,850,000 (inclusive of GST) (see Recital C, cl 5.1 and Annexure A). Annexure A describes in general terms the action for which indemnity is being provided in the following terms: …Provide security for costs to the Andrew Binetter entities, the Gary Binetter entities, the Margaret Binetter entities and Michael Binetter in respect of the Proceedings. 32 The "Proceedings" are defined to mean the present proceeding. 33 The indemnities as specified in Annexure A are expressed to be, in every case, a provision for adverse costs in favour of one or other of the defendant groups. In the case of each of the Gary Binetter group, the Andrew Binetter group and Michael Binetter, $500,000 is provided for. In the case of the Margaret Binetter group, only $350,000 is provided for. No provision is made for the Nudie parties. 34 Recital C is in the following terms: The DCT has agreed to provide an indemnity to the Liquidator in the sum of $1,850,000 inclusive of GST. The details of the purpose and amounts for which the DCT has agreed to provide an indemnity are specified hereunder in the operative provisions and at Annexure A hereto. 35 Clause 4 of the Deed is in the following terms: 4. Purpose 4.1 Purpose of this Deed Subject to the terms herein, the purpose of this Deed ("the indemnity purpose") is to enable the Liquidator to: a) provide security for costs to the Andrew Binetter entities up to the amount of $500,000 (inclusive of GST) but no more than that amount in respect of the Proceedings; b) provide security for costs to the Gary Binetter entities up to the amount of $500,000 (inclusive of GST) but no more than that amount in respect of the Proceedings; c) provide security for costs to the Margaret Binetter entities up to the amount of $350,000 (inclusive of GST) but no more than that amount in respect of the Proceedings; and d) provide security for costs to Michael Binetter up to an amount of $500,000 (inclusive of GST) but no more than that amount in respect of the Proceedings. 4.2 Tasks particularised in Annexure A The Liquidator acknowledges and agrees that they are satisfied that sufficient consideration has been given to all the tasks and the anticipated costs of those tasks, that are likely to be undertaken, or may need to be undertaken, as particularised in Annexure A hereto, in order to achieve the indemnity purpose. 36 Clause 5.2(c) makes clear that the full extent of the Commissioner's liability to the liquidators of the plaintiff corporations in respect of each of the defendant groupings specified at Annexure A is for the amount specified in Annexure A. Clauses 5.3, 5.4 and 5.5 of the Deed of Indemnity are in the following terms: 5.3 Increase in amount of indemnity for existing Indemnity Expenses particularised in Annexure A The parties agree that this Deed does not provide for the Liquidator to seek an increase in the amount of the indemnity for existing Indemnity Expenses particularised in Annexure A hereto. The Liquidator agrees to perform all necessary tasks to achieve the indemnity purpose within the limit of the indemnity specified in clause 5.1 herein, as particularised in Annexure A hereto. 5.4 Increase in amount of indemnity for new costs not particularised in Annexure A The parties agree that this Deed does not provide for the Liquidator to seek an increase in the amount of the indemnity for any new costs not particularised in Annexure A hereto. 5.5 Liquidator undertakes to hold the indemnity from the DCT for the benefit of each Indemnified Respondent Notwithstanding any other provision in this Deed, the Liquidator expressly agrees and undertakes that the benefit of the indemnity provided by the DCT under this Deed is for the benefit of each Indemnified Respondent, such that the Liquidator will immediately call on the DCT to indemnify BCI Finances, as the applicant in the Proceedings, to satisfy, unconditionally: (a) any costs order, upon the amount of those costs being fixed by the Court in the Proceedings in favour of any one or more of the Andrew Binetter entities up to an amount of $500,00 (inclusive of GST) but no more; (b) any costs order, upon the amount of those costs being fixed by the Court in the Proceedings in favour of any one or more of the Gary Binetter entities up to an amount of $500,000 (inclusive of GST), but no more; (c) any costs order, upon the amount of those costs being fixed by the Court in the Proceedings in favour of any one or more of the Margaret Binetter entities up to an amount of $350,000 (inclusive of GST), but no more; and (d) any costs order, upon the amount of those costs being fixed by the Court in the Proceedings in favour of Michael Binetter up to an amount of $500,000 (inclusive of GST), but no more. 37 Clause 6 of the Deed governs the way in which the liquidators are to deal with offers of settlement. Clause 7 of the Deed addresses the commencement and termination thereof. 38 Clause 7.2 of the Deed is in the following terms: 7.2 Termination of Deed (a) In the event that the Principal Deed of Indemnity is terminated by the DCT then the liability of the DCT incurred under this Deed will not be affected, but the DCT will not be liable to indemnify the Liquidator in respect of any further costs incurred by any one or more of the Indemnified Respondents after the date of the termination of the Principal Deed of Indemnity. (b) For the avoidance of doubt, the DCT will be liable to indemnify the Liquidator for any adverse costs order relating to costs incurred by the Indemnified Respondents in accordance with the indemnity purpose, irrespective of when that costs order may be made, for all such costs incurred up to, but not after, the date of the termination of the Principal Deed of Indemnity. (c) The DCT acknowledges that the Liquidator will, in furtherance of the indemnity purpose, give an undertaking to the Federal Court of Australia in the Proceedings, in order to give effect to this Deed in the terms of Annexure C to this Deed. 39 Clause 8 of the Deed provides for dispute resolution mechanisms. Clause 9 addresses confidentiality. Clause 10 addresses certain general matters. 40 The liquidators have agreed to undertake to the Court to hold the benefit of the indemnity provided by the Commissioner in the Deed of Indemnity for the benefit of each defendant grouping and to call on the Commissioner to indemnify BCI Finances against adverse costs orders made in this proceeding in favour of any one or more of those groupings. They have also agreed to undertake to the Court to inform the defendants if the Principal Deed of Indemnity is terminated by the Commissioner.

The Defendants' Criticisms of the Deed of Indemnity 41 The defendants have criticised the Deed of Indemnity as not providing adequate protection for their costs. Some criticisms are common across all defendant groupings while others are particular criticisms raised by one or other of the defendant groupings. 42 First, the defendants complain that the only parties to the Deed of Indemnity are the liquidators and the Commissioner. The defendants argue that they have no direct contractual entitlement to enforce the provisions of the Deed of Indemnity against the Commissioner. They also submit that they should not be left to making arguments to the effect that the indemnity in respect of each defendant grouping is held by the liquidators for the benefit of each such grouping with the consequence that each defendant grouping would have a contractual entitlement to enforce the indemnity directly against the Commissioner (see eg Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107). The defendants argue that they should not be subjected to the uncertainties of enforcement caused by the lack of privity with the Commissioner. They say that, if the plaintiffs are correct as to the effect of the Deed of Indemnity, what is the difficulty with the Commissioner entering into appropriate arrangements directly with the defendants in order to secure their costs? 43 Second, the defendants say that the Deed of Indemnity caps the amount of the indemnity provided by the Commissioner to each indemnified defendant group. It does not take account of the possibility that the Court may order that further security be provided by the plaintiffs. Indeed, the liquidators are expressly forbidden from seeking an increase in the limits of the indemnity. 44 Third, the Deed of Indemnity contemplates that it can be terminated as a result of the termination of the Principal Deed of Indemnity. Thus, the question of the continued application of the Deed of Indemnity at any given point in time rests entirely with the parties to the Deed of Indemnity being the liquidators of the plaintiff corporations and the Commissioner. The defendants have no say in whether or not the indemnity provided by the Deed is to continue. Further, the defendants do not know the terms of the clauses in the Principal Deed of Indemnity pursuant to which that Deed may be terminated. 45 Fourth, under the dispute resolution clauses in the Deed of Indemnity, control of the ultimate working out of each of the parties' liability thereunder is left to a third party and a process over which the defendants have no control or say. 46 Fifth, the indemnity provided by the Deed is an indemnity in favour of the liquidators personally. The Deed does not provide an indemnity to any of the plaintiff corporations. This may be a small technical point but could work a serious injustice if orders for costs ultimately made in the proceeding are made against the corporations in liquidation and not against the liquidators personally. The undertaking set out in Annexure C probably solves this problem although it may not do so. 47 Sixth, the Deed of Indemnity includes specific representations that certain matters conveyed by the liquidators to the Commissioner are true. Should those representations be found to have been false or misleading, in some respects, the Commissioner might seek to be relieved of his obligations under the Deed of Indemnity. This potential scenario reinforces the uncertain and qualified nature of the so-called benefits given to the defendants under the Deed of Indemnity. The defendants would have no control over such an attack on the Deed of Indemnity and would almost certainly be powerless to prevent the attack being made. 48 All of these criticisms are well made. The Deed of Indemnity is an overly cumbersome and unwieldy mechanism for securing the defendants' costs. In any event, in my view, it does not do so in a way which is reasonable or effective. I am not satisfied that the Deed of Indemnity is an appropriate means of providing security for any of the defendants' costs.

The Appropriate Form of Security 49 It seems to me that, once the Deed of Indemnity is removed from consideration, the options left to the Court are to order a cash deposit with the Court, to order one or more bank guarantees in an appropriate form to be deposited with the Court or to require the Commissioner to provide an appropriate undertaking to the Court. 50 During argument in respect of these applications, I suggested that it would be appropriate, in all the circumstances, for the Court to order that the Commissioner be joined as a party so that he would then be amenable to the exercise of all of the powers of the Court in relation to costs. That suggestion has been vehemently opposed by the Commissioner. It has also been opposed by the plaintiffs. The Gary Binetter group of defendants has also suggested that the Court does not have the power to make such an order. 51 I am keen to avoid a state of affairs where the current applications for security for costs lead to further disputation in relation to security for costs. For this reason, I will not make an order joining the Commissioner as a party to this proceeding. However, I wish to make clear that I do not accept that the Court does not have the power to make such an order in an appropriate case. Rather, I have decided to eschew such an order in the present case in order to ensure that further disputation about security for costs is avoided or, at the very least, minimised. In any event, it would be open to the Court at the end of the case to make an order for costs directly against the Commissioner should such an order be justified at that time (see s 43(2) of the Federal Court of Australia Act 1976 (Cth)). 52 For all of the above reasons, I propose to do one of the following at the election of the plaintiffs and the Commissioner: (a) Order the plaintiffs to deposit $2,000,000 in cash in total with the Court upon the basis that $500,000 of that amount is to be regarded as security for the costs of each of the four defendant groupings to which I have referred at [5] above; or (b) Order the plaintiffs to deliver one or more bank guarantees to the Court in the amount of $500,000 each in appropriate terms in favour of each defendant grouping as security for the costs of each of the said four defendant groupings to which I have referred; or (c) Accept from the Commissioner an undertaking to the Court in the following terms: The Commissioner of Taxation (Cth) hereby undertakes to the Court to pay directly to any defendant party who obtains a costs order against any one or more of the plaintiffs in the present proceeding the amount of such costs so ordered as taxed or agreed. 53 I think that need for the present applications has been brought about by the reluctance of the plaintiffs and the Commissioner to address in an appropriate way the question of providing security for the defendants' costs. I think that the plaintiffs should be ordered to pay the defendants' costs of and incidental to the present applications for security. 54 I propose to publish these Reasons for Judgment and to allow the plaintiffs and the Commissioner until 5.00 pm next Monday (3 August 2015) to elect which of the three methods which I have described at [52] above for providing security for costs is their preferred option. I will direct that the plaintiffs and the Commissioner notify my Associate by that time of the choice which they have made and that they also notify the defendants of that choice. I will then make orders dealing with the question of security for the defendants' costs on the papers. I have in mind ordering that the chosen form of security be provided by no later than 7 August 2015. 55 There is no basis on the evidence before me for the Court to accede to Michael Binetter's application to increase the quantum of the security to be provided in respect of his costs to $900,000. The estimate of future costs provided on his behalf is speculative and involves a number of steps (eg travelling to New York to "take instructions") for which security would not be provided without more cogent evidence as to why those steps were necessary. The quantum of security to be ordered by the Court is not intended to provide a full indemnity for the likely future costs. I propose to dismiss Michael Binetter's application to increase the quantum of the security for his costs. 56 There will be orders accordingly. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.