Microbio Resources Inc v Betatene Limited

THE COURT ORDERS THAT: 1. The first, second and third applicants provide the further security for costs in accordance with the order made by Cooper J on 29 August 1997 at or before 4.00 pm on 1 May 1998. 2. In default of compliance by the first, second and third applicants with order 1 above, the applicants' proceedings be dismissed with costs. 3. The applicants pay the respondents' costs of an incidental to the notice of motion filed on 2 December 1997, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

COLIN UEBERGANG, COLIN ROBERT UEBERGANG AND CHRISTOPHER LEWIN UEBERGANG TRADING AS C UEBERGANG & SONS (A FIRM)

REASONS FOR JUDGMENT On 29 August 1997, I ordered that the first, second and third applicants provide further security in the sum of $150,000 in a form satisfactory to the District Registrar to meet any award of costs in favour of the respondents in the principal proceedings and that the proceedings by the first to sixth applicants be stayed until provision of that security. It was not sought to appeal from that order. The security has not been provided and the respondents by notice of motion filed 2 December 1997 now move the Court, pursuant to O 28 r 5 of the Federal Court Rules or s 56(4) of the Federal Court of Australia Act 1976 (Cth), for an order varying my order of 29 August 1997 to provide for the dismissal of the applicants' proceeding if security is not provided by a certain date. That course is opposed by the applicants. It is necessary to have some regard to the background to, and the circumstances leading up to, the respondents' present notice of motion. Whitlam J, on 12 May 1993, ordered that Colin Uebergang, Colin Robert Uebergang, Christopher Lewin Uebergang and Susan Pearle Sorelle Uebergang (a director of the second applicant) provide security for costs by way of a joint and several personal guarantee in respect of any order for costs made against the first, second or third applicants. The guarantee was provided on 15 June 1993. In 1997 the respondents by notice of motion sought additional security in the sum of $335,000. This sum was sought as it was the estimate of the applicants' solicitors' credible costs of prosecuting these proceedings to a conclusion. The additional security was sought on the basis of evidence that Mr Colin Uebergang had, or had had access to, substantial funds, in excess of $1.5m from a Swiss corporation, Lontana Société SA ("Lontana"). These funds had been used to fund his lifestyle and litigation, including these proceedings. I was satisfied on the evidence that additional security in the sum of $150,000 ought to be provided. The applicants in the principal proceedings filed no material in opposition on the notice of motion seeking additional security. No credible explanation was offered as to the relationship of Mr Uebergang, his co-guarantors and the applicants with Lontana nor as to the basis upon which the substantial funds had been made available. In those circumstances, I said (at pp 6 - 7 of my unreported reasons) :- "In my opinion there has been a material change in circumstances since the making of the original order for security for costs. Whether or not the Uebergangs and the applicants were impecunious at that time, there is credible evidence that they now have access to substantial sources of money through an overseas entity. Whether or not that source is the property of any of the Uebergangs, or is controlled by them or whether it acts in accordance with their wishes or the wishes of Mr Colin Uebergang, is unexplained. I do not accept that provision of funds in excess of $1,000,000 is merely a generous gift of a friendly corporation to help out an old acquaintance. In the absence of any explanation as to the basis of the funding and the inability to cross-examine Mr Uebergang on this issue because he has not sworn any explanatory affidavit, it is open to infer that the Swiss corporation has a financial interest in the outcome of the litigation but maintains a position where it cannot be made directly liable for an order for costs in the event that the proceedings fail." Security has not been provided by the first, second and third applicants. It is relevant to note that since on or about 31 January 1997, the principal proceedings have been ready for trial. On 2 September 1997, the solicitors for the respondents wrote to the applicants' solicitors asking whether the applicants intended to proceed with the action and, if so, when it was anticipated that the security would be provided. The applicants' solicitors replied by letter dated 4 September 1997, relevantly as follows :- "We have advised our clients of the order for security for costs and we are instructed that the Applicants intend proceeding with the action. We are at this point unable to advise you when the security will be lodged. The security is not an insignificant sum of money, and obviously it shall take our client some time to arrange. Our clients certainly do not wish to allow the matter to remain in limbo." On 1 October 1997, Mr Uebergang (the sixth applicant), who will be the applicants' principal witness in any trial of the action, was convicted of defrauding The Uncle Toby's Company Pty Ltd and was sentenced to serve two years in prison. Since the hearing of the respondents' present notice of motion, Mr Uebergang has been successful in an appeal against that conviction and the conviction has been set aside. The respondents' solicitors wrote to the applicants' solicitors on 13 October 1997 inquiring as to whether Mr Uebergang's conviction and sentencing would delay the progress of the litigation and foreshadowing the present application. The applicants' solicitors replied by letter dated 15 October 1997 asserting that there was little point obtaining trial dates until Mr Uebergang's release date could be estimated. It was anticipated that Mr Uebergang would serve ten or eleven months of his jail sentence. The prospect that Mr Uebergang would lodge an appeal against the conviction was raised. The letter continued :- "Given that a trial would not take place for say, another 11 months, there does not appear to be any urgency with our client lodging security for costs. It seems to us that the appropriate time for the security to be lodged is when the applicant applies for trial dates. Obviously any application involving a Guillotine Order will be opposed. However, we shall write to our client and seek his instructions in relation to the lodgment of security. You will appreciate that in view of Mr Uebergang's present circumstances, there may be some delay in reverting to you." None of the applicants swore affidavit material for the purposes of the respondents' present notice of motion. Nor did any person having an interest in or knowledge of the affairs of Lontana. The applicants relied upon an affidavit of their solicitor, Mr Purcell. Mr Purcell's affidavit annexed correspondence passing between the applicants' solicitors and the solicitors for Lontana in September 1996 and deposed to various things told to Mr Purcell by Mr Uebergang. Lontana's solicitors wrote to the applicants' solicitors on 3 September 1996, apparently in response to a request made by Mr Uebergang of a Mr Jamieson (who is described by Mr Purcell as the "owner" of Lontana) for a further advance of $20,000, expressing Mr Jamieson's discomfort about making further advances except under certain conditions. Lontana's solicitors indicated that before the request would be further considered, Mr Jamieson required to be informed of the precise position of the litigation, when it was likely to come to a hearing and the extent to which further funds would likely be required. Mr Purcell deposed to a telephone conversation with Mr Uebergang on 9 September 1996 in which Mr Uebergang said words to the effect that Mr Jamieson (ie Lontana) would not fund the proceedings any further. Mr Purcell wrote to Lontana's solicitors on 11 September 1996 providing the requested information in relation to the progress and status of the litigation and noting that if Mr Jamieson was not going to provide further funds, an estimate of the likely future costs would be immaterial to him, but nonetheless, an estimate would be provided if still required. Mr Purcell deposed that he has had no further contact with Lontana or with any person on Lontana's behalf since his letter of 11 September 1996, save for an open facsimile transmission dated 29 January 1998 from Lontana's solicitors which contained the following :- "We are the solicitors for Lontana Societa [sic] SA. We advise that Colin Uebergang is neither a director nor a shareholder, or [sic] has any legal or beneficial or interest in Lontana Societa [sic] SA. The sole connection between Colin Uebergang and Lontana SA is that Lontana Societa [sic] SA is a creditor of Colin Uebergang in respect of funds that have been advanced from time to time." The letter was apparently sent at Mr Uebergang's request in an effort to address what was said in my reasons of 29 August 1997. Finally, Mr Purcell deposed to various matters told to him by Mr Uebergang :- "9. I am informed by Colin Uebergang and verily believe that his incarceration as a result of the District Court trial in the criminal proceedings has prevented any attempt to raise the necessary funds to provide the security of [sic] costs as ordered. 10. I am informed by Colin Uebergang and verily believe that he does not possess any assets whatsoever of any description other than his claim for damages in this action. Colin Uebergang further informs me and I verily believe that he does not have access to any funds to provide security. 11. I am informed by Colin Uebergang and verily believe that Lontana Societa [sic] SA has advanced funds to him by way of loan, some of which have been used to finance these proceedings, and that company's interest in the proceedings is the prospect of recovering the loan funds and interest in the event that his claim succeeds." The Court's discretion to vary an order for security made under O 28 or to dismiss proceedings pursuant to s 56(4) for failure to provide security or further security is an unfettered discretion to be exercised in the circumstances of the case. Whilst the Court will be careful to see that orders for security for costs do not work injustice to parties against whom the orders are made, if those parties do not comply with the orders and offer no explanation for non-compliance, they cannot be heard to complain if, after a considerable length of time, their proceedings are dismissed: Microbio Resources Inc v Betatene Limited (unreported, Federal Court of Australia (FC), Black CJ, Sheppard and Einfeld JJ, 8 October 1993) at 9 - 10. It is also relevant to repeat what I said in my reasons of 29 August 1997, namely that it is for the applicants to show that an order in the terms sought by the respondents would frustrate the litigation: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 4. Seven months have now passed since I ordered that the first, second and third applicants provide further security. In that time no explanation has been offered for the failure to provide security, save that Mr Uebergang was in prison and Lontana was no longer providing funds. Mr Uebergang has now been released. So far as Lontana is concerned, the material relied upon to support the assertion that it is no longer funding the litigation takes the matter no further than when the matter was last before me. The open letter of 29 January 1998 from Lontana's solicitors is a disingenuous attempt to explain Lontana's interest in the litigation. It goes no further than to suggest that Lontana is a creditor of Mr Uebergang in respect of the advances applied to fund Mr Uebergang's lifestyle and litigation. The letter was written at Mr Uebergang's request, in response to what was said in my reasons of 29 August 1997, by Lontana's Australian solicitors, clearly acting on direct instructions. In any event, as at 31 January 1997, Lontana was still providing funds to Mr Uebergang and his wife for their "living expenses". It is also relevant to note that, apart from what Mr Uebergang told Mr Purcell, there is no evidence that Lontana has in fact ceased to provide funds to Mr Uebergang for the purposes of this proceeding. The letter from Lontana's solicitors of 3 September 1996 requesting information about the progress of the litigation as a condition of considering Mr Uebergang's request for further funds, does not lead to an inference that no further funds will be provided. None of the applicants, and in particular Mr Uebergang, has gone on oath as to his, or its financial circumstances or sworn to impecuniosity or the details of it. No person having relevant direct knowledge has gone on oath to explain the link between Lontana and the applicants or the basis for the provision by it of substantial sums to Mr Uebergang and the applicants. Mr Purcell's affidavit, based upon what he has been told by Mr Uebergang, is not sufficient. There has been no material put before me which addresses the issues raised on the last occasion namely, whether the natural person applicants are in fact impecunious or, rather, have organised their affairs so as to put their assets beyond the vicissitudes of commercial life and litigation (Shannon v Australia and New Zealand Banking Group Ltd (No 2) 2 Qd R 563; Cherry v Read (unreported, Federal Court of Australia (FC), Black CJ, Sackville and Finn JJ, 21 November 1996) at 7 - 8) and the nature of Lontana's interest in the litigation and its failure to come forward and offer security: Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201. There has been, therefore, no acceptable explanation offered by the applicants for their failure to provide the further security since they were ordered to do so on 29 August 1997. It has not been sought to show, and nor has it been shown, that there has been a change in the applicants' circumstances so as to justify a variation in the order for further security in favour of the applicants. Nor has such an application been filed or foreshadowed. It has not been shown to my satisfaction that an order of the kind sought by the respondents would stifle the litigation. The respondents are entitled to know with reasonable certainty, whether the litigation, commenced in 1993, is to proceed against them. If the applicants' proceedings are dismissed for want of providing security, the first respondent has undertaken not to seek to proceed further on its cross-claim. I am satisfied that the circumstances of this case justify the making of a guillotine order. The applicants' proceeding will stand dismissed with costs unless the further security is provided at or before 4.00 pm on 1 May 1998. The applicants must pay the respondents' costs of and incidental to the respondents' notice of motion filed on 2 December 1997 to be taxed if not agreed. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper