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Amcor v Barnes & Ors

Amcor v Barnes & Ors

Case [2015] VSC 90 13 March 2015

Security for Costs

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Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

No. S CI 2007 08181

AMCOR LTD (ACN 000 017 372) AND ORS (according to the attached Schedule)	Plaintiff
v
TREVOR MARK BARNES AND ORS (according to the attached Schedule)	Defendants
and
AUSTRALIAN CORRUGATED BOX CO PTY LTD (ACN 104 489 581)	First Plaintiff by Counterclaim
and
ACB AUSTRALIA PTY LIMITED (ACN 104 489 670)	Second Plaintiff by Counterclaim
v
ACN 002 693 843 BOX PTY LTD (ACN 002 693 843)	First Defendant by Counterclaim
and
AMCOR PACKAGING (AUSTRALIA) PTY LTD (ACN 004 275 165)	Second Defendant by Counterclaim

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 FEBRUARY 2015
DATE OF JUDGMENT:	13 MARCH 2015
JUDGMENT MAY BE CITED AS:	AMCOR v BARNES & ORS
MEDIUM NEUTRAL CITATION:	[2015] VSC 90

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PRACTICE AND PROCEDURE – SECURITY FOR COSTS - Defendant’s counterclaim - Threshold question in dispute – Whether plaintiff had a sufficient measure of ability to pay costs –Whether undue delay in bringing application – Threshold question not established – Undue delay in bringing application – Security for costs not ordered - Supreme Court (General Civil Procedure) Rules 2005, rr 62.02(1), 62.04 - Corporations Act 2001 (Cth) s 1335(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Dr S McNicol QC and Mr C J Tran	Gilbert +Tobin
For the Respondents	Mr Stewart Maiden	Mills Oakley

HIS HONOUR:

Background

The defendants to counterclaim, ACN 002 693 843 Box Pty Ltd and Amcor Packaging (Australia) Pty Ltd (the ‘Amcor Parties’) seek an order for security for costs against the First Plaintiff by counterclaim ACN 002 693 843 Box Pty Ltd (‘Achilla’), and an order that, if Achilla does not provide such security, the entire counterclaim be dismissed.

In particular, by a summons dated 10 December 2014, the Amcor Parties seek orders that:

(a)Achilla provide security for costs in the sum of $600,000; and
(b)if that security is not provided within 14 days, the entire counterclaim be dismissed.

Achilla resists this application.

If it is determined in this application that security for costs should be awarded, the matter is to be referred to a Judicial Registrar to assess the quantum of the security in the absence of agreement.

Relevant law

The power to require security for the defendants’ costs arises under r 62.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the ‘Rules’) and s 1335(1) of the Corporations Act 2001 (Cth) (the ‘Corporations Act’). Each provision creates an independent power to grant security. As the Court of Appeal observed in Livingspring Pty Ltd v Kliger Partners[1], while the provisions are expressed in different words, the relevant principles apply equally to both, and are well settled.[2]
[1](2008) 20 VR 377, (‘Livingspring’).
[2]Livingspring (2008) 20 VR 37, 380-1 [10] (Maxwell P and Buchanan JA).

Rule 62.02(1)(b) of the Rules provides that where:

the plaintiff is a corporation … the Court may, on the application of a…

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

AGLC: Amcor v Barnes [2015] VSC 90
Case: [2015] VSC 90
Decision Date: 13 MARCH 2015

CaseChat Overview and Summary

The plaintiff, Amcor, filed an application for security for costs against the defendants, Barnes and others, in the Supreme Court. The basis of the application was a claim by Amcor that it was unable to meet the costs of the proceeding due to the defendants' financial status. The defendants contested the application on several grounds, including the contention that Amcor had not established the necessary threshold for the court to order security for costs and that there was undue delay in bringing the application. The court had to determine whether Amcor had demonstrated a sufficient measure of Amcor's ability to pay costs and whether there had been undue delay in bringing the application.

The court examined the evidence and arguments presented by both parties. It considered the statutory provisions under the Supreme Court (General Civil Procedure) Rules 2005 and the Corporations Act 2001 (Cth). The court found that Amcor had not sufficiently demonstrated the required threshold for the court to order security for costs. Additionally, the court held that there was undue delay in bringing the application, which further supported its decision not to grant the security for costs. Consequently, the court dismissed Amcor's application.

The court's reasoning was based on the specific requirements of the relevant statutes and the evidence presented by Amcor. It concluded that Amcor had not met the burden of proving the necessary threshold and that the delay in bringing the application was significant. Therefore, the court did not order security for costs.

The final orders of the court were that Amcor's application for security for costs was dismissed, and no security for costs was ordered. The court also noted that the defendants were not required to pay Amcor's costs of the application.

Orders