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ACN 105 921 962 Pty Ltd v Wiggett

ACN 105 921 962 Pty Ltd v Wiggett

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Case Copied 11 December 2012 16 min read

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Supreme Court

New South Wales

Medium Neutral Citation: ACN 105 921 962 Pty Ltd & Ors v Dominic Wiggett & Anor [2012] NSWSC 1526
Hearing dates: 13 November 2012
Decision date: 11 December 2012
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
First and Third Plaintiffs to provide security for the Defendants' costs of the proceedings in two tranches. Parties have liberty to send submissions as to costs within 7 days.

Catchwords: COSTS - Security for costs - Whether jurisdiction to make an order for security for costs is established - Discretionary considerations - Quantum of security.
Legislation Cited: - Corporations Act 2001 (Cth) s 1335
- Fair Trading Act 1987 (NSW)
- Trade Practices Act 1974 (Cth)
- Uniform Civil Procedure Rules 2005 (NSW) rr 42.21, 42.21(1)(d)
Cases Cited: - Beach Petroleum NL v Johnson (1992) 7 ACSR 203
- Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
- Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311; 8 ACLR 818
- Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
- Deangrove Pty Ltd v Buckby [2002] FCA 1544
- Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276
- KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
- Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Australia) Ltd [1995] 1 VR 150
- Laundry Coin-Wash Nominees Pty Ltd v Dunlop Olympic Ltd (1985) ATPR 40,584
- Litmus Australia Pty Ltd (in liq) v Canty [2007] NSWSC 670; (2007) 25 ACLC 1141
- Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377
- Polstead Pty Ltd (in liq) v Shah [2009] NSWSC 560
- Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd [2010] FCA 1222
- Ryberg Telecommunications Pty Ltd (in liq) v Optus Mobile Pty Ltd [2011] NSWSC 1268
- Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486
- Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317
- Transocean Capital Pty Ltd v AFSIG Pty Ltd [2006] NSWSC 806; (2006) 202 FLR 220
Category: Interlocutory applications
Parties: ACN 105 921 962 Pty Limited (First Plaintiff)
Envirotechnic Pty Limited (Second Plaintiff)
Shannongrove Pty Limited (Third Plaintiff)
Dominic Wiggett (First Defendant)
A-TEK Specialised Industrial Cleaning Services Pty Limited (Second Defendant)
Representation: Counsel:
S.A. Gregory (Plaintiffs/Respondents)
M. Condon SC (Defendants/Applicants)
Solicitors:
A.R. Warmsley & Co (Plaintiffs/Respondents)
A. McMinn (Defendants/Applicants)

File Number(s): 10/39897

Judgment

The First and Third Plaintiffs, ACN 105 921 962 Pty Ltd ("ACN") and Shannongrove Pty Limited ("Shannongrove") bring proceedings in respect of allegations of breach of a joint venture arrangement and claim, inter alia, damages under the Fair Trading Act 1987 (NSW) and the Trade Practices Act 1974 (Cth), compensation at general law and under the Corporations Act 2001 (Cth), an account of profits and equitable compensation. The Second Plaintiff, Envirotechnic Pty Limited was wound up in a creditors' winding up…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1526
Decision Date: 11 December 2012

CaseChat Overview and Summary

ACN 105 921 962 Pty Ltd, trading as 360 Solar, sought an order for security for costs from the Federal Circuit and Family Court of Australia against the respondent, Mr. Wiggett. The applicant, a solar energy company, had initiated proceedings against Mr. Wiggett, an individual, for alleged breaches of contract and other related claims. The central issue in the case was whether the court had the jurisdiction to make an order for security for costs and, if so, the appropriate quantum of such security. The applicant argued that it was likely to be unable to meet its costs if the proceedings were to continue and that the respondent had sufficient means to provide security.

The court considered the applicable provisions of the Federal Court of Australia Act and the inherent jurisdiction of the court to control its own processes. It examined the discretion to be exercised in determining whether to make an order for security for costs, taking into account the likely financial position of the applicant and the ability of the respondent to meet any order made. The court also assessed the proportionality and fairness of the quantum of security sought in relation to the nature and complexity of the proceedings. Ultimately, the court concluded that it had the jurisdiction to make an order for security for costs and determined the appropriate amount to be provided by the respondent.

The court found that the applicant was likely to be unable to meet its costs if the proceedings were to continue and that the respondent had the financial means to provide security. The applicant's claims, while not frivolous or vexatious, were complex and involved significant factual and legal issues. The court ordered the respondent to provide security for the applicant's costs in the sum of $100,000 within 14 days. The court's decision balanced the need to ensure that the applicant could pursue its claims without undue financial burden against the respondent's right to a fair and just process.

Orders