TJ & P Post as trustee for the Post Family Trust v Agrinova Pty Ltd

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. On 5 June 2025, I delivered reasons for judgment in this proceeding: TJ & P Pty Ltd as trustee for the Post Family Trust v Agrinova Pty Ltd (No 3) [2025] FCA 587 (Agrinova (No 3)). On 26 June 2025, I made an order for judgment in favour of the applicant and against the extant respondent (Agrinova) in the sum of $585,000 exclusive of interest.
2. On 8 July 2025, the appellant filed a notice of appeal; and on 28 July 2025, the respondent filed a notice of cross-appeal.
3. On 6 August 2025, I made orders by consent which stayed the order made on 26 June 2025 until final determination of the cross-appeal, and noted "the agreement of the parties that any orders for interest and costs in favour of either party in the proceedings be stayed on the same terms".
4. On 12 November 2025, I made, relevantly, the following orders:

Costs

1. The respondent pay the applicant's costs of the proceeding, save for the costs of the applicant's claim against the respondent for damages for contravention of s 18 of the Australian Consumer Law (misleading or deceptive conduct claim).

2. The applicant pay the respondent's costs of the misleading or deceptive conduct claim.

3. The applicant pay the costs of the proceeding of the former third and fourth respondents, Mr Richard Stott and Mr Mathew Stott (Stott respondents).

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1. My reasons for doing so were published as TJ & P Pty Ltd as trustee for the Post Family Trust v Agrinova Pty Ltd (No 4) [2025] FCA 1375 (Agrinova (No 4)).
2. The applicant now applies for the following orders:
   1. Mr Tjeerd Post, be released from all obligations arising from his undertaking to the Court (given in his capacity as sole director of the Applicant) dated 27 January 2023 (Mr Post's Undertaking) being Annexure A to the orders of Rares J made on 3 March 2023.
   2. The Respondent and the former Third and Fourth Respondents (Richard Stott and Mathew Stott) forthwith do all things and sign all documents to remove the caveat lodged by the Respondent over the title to the real property known as 11 Triantha Court, Albany Creek in the State of Queensland (Title Ref: 50307670), such caveatable interest granted to the First, Third and Fourth Respondents pursuant to paragraph 3 of Mr Post's Undertaking.
   3. The sum of $100,000 paid into Court pursuant to order 2(a) made by Rares J on 25 October 2022, together with any interest which has accrued on that sum, be paid as follows:

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Account Name: Sean Keleher Solicitor Trust Account

1. That application arises in the following context:

(1) on 25 October 2022, Justice Rares ordered the applicant to provide security for the costs of Agrinova and the Stott respondents in an amount of $255,000 in the following tranches:

(a) $100,000 on or before 25 November 2022; and

(b) $155,000 within 30 days of the Court setting the proceeding down for final hearing;

(2) on 25 November 2022, the applicant paid the first of those tranches into Court. The applicant failed to pay the second tranche of security;

(3) however, on 3 March 2023, Justice Rares made an order, by consent, that the form of security for the second tranche be varied such that the "the undertaking to the Court of Tjeerd Post signed on 27 January 2023 and the freezing order made today be substituted as suitable security ...". The freezing order was annexure A to the 3 March 2023 orders.

1. Mr Long, for Agrinova, suggested in submissions that the agreement noted in the orders made on 6 August 2025 should be treated as an agreement to leave the security in place pending the outcome of the appeal and the cross-appeal. However, I do not regard that agreement as extending beyond an agreement to stay any orders as to interest and costs. Thus, it is necessary to consider whether the security should be released.
2. The starting point is that the purpose of an order for the provision of security for costs is to ensure that a successful respondent to a claim will have a fund available within the jurisdiction of the Court against which the respondent can enforce a judgment for costs in that respondent's favour: Commissioner of Taxation (Cth) v Vasiliades [2016] FCAFC 170; (2016) 344 ALR 558 at 579 [72] (Kenny and Edelman JJ).
3. As explained in Agrinova (No 3) and Agrinova (No 4), the applicant has succeeded as against Agrinova, including as to costs. Although the applicant is required to pay Agrinova's costs of the misleading or deceptive conduct claim, Agrinova is otherwise required to pay the applicant's costs. Taking into account the relative time spent on the misleading or deceptive conduct claim on the one hand and the remaining issues on the other, the net position is not one in which the applicant will be required to pay costs to Agrinova. It follows that, as between the applicant and Agrinova, the security for costs order serves no further purpose in this proceeding.
4. However, the applicant is liable to pay the costs of the former third and fourth respondents (Stott respondents) with the consequence that the security for costs order continues to serve the purpose of providing a fund against which the Stott respondents can enforce the costs order in their favour.
5. There is no evidence before the Court as to the amount of costs incurred by the Stott respondents. Mr Keleher for the applicant submitted that no costs were incurred by the Stott respondents separately from the costs incurred by Agrinova, but the absence of evidence on this point has the consequence that the Court cannot reach that conclusion. Doing the best that I can, taking into account the issues in the proceeding, the course of the hearing, the observations made in Agrinova (No 4) at [52] and applying a necessarily "broad brush" approach, I have come to the conclusion that some separate costs may have been incurred but that the first tranche will provide sufficient security for the costs payable by the applicant to the Stott respondents. Thus, the second (but not the first) tranche of security should be released.
6. More generally, I do not regard it as appropriate to leave the security in place for the purpose of providing security for the appeal. The appeal is a separate proceeding and an application may be made in that proceeding for an order requiring the provision of security for costs: see r 36.09 of the Federal Court Rules 2011 (Cth). The matters that inform the exercise of the discretion in deciding whether to require a party to an appeal to provide security for costs for an appeal typically differ from those that inform the exercise of the discretion at first instance: see Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417 ; (2014) 103 ACSR 201 at 212 to 213 [50] (Basten JA). For example, in the present case there has now been a judgment, there is both an appeal and a cross-appeal, and the quantum of any order for the provision of security for costs is likely to be lower in view of the shorter timeframe for the hearing of the appeal.
7. For the reasons set out above, orders to the effect of the first and second (but not the third) orders sought by the applicant should be made. I will make orders accordingly.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.