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Anderson v Patersons Securities Ltd

Anderson v Patersons Securities Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: Anderson v Patersons Securities Ltd [2019] NSWSC 852
Hearing dates: 20 June 2019
Date of orders: 11 July 2019
Decision date: 11 July 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Pursuant to r 42.21(1)(a) and/or (e) of the Uniform Civil Procedure Rules 2005 (NSW), order the plaintiff, Mrs Daniela Anderson, to provide security in the following tranches and in accordance with the schedule to these reasons:
•   in relation to the first tranche: within 28 days of these reasons for the respective defendants’ costs of the proceedings up to the commencement of the trial in the amounts, and at the times, set out in the schedule to these reasons;
•   in relation to the second tranche: within 28 days from the conclusion of a mediation of the disputes or no later than six weeks from commencement of the hearing in the amounts, and at the times, set out in the schedule to these reasons;
such security to be provided by way of an unconditional bank guarantee from an Australian bank in a form acceptable to the defendants or payment into Court.
2.   In the event that the respective tranches of security ordered in Order 1 above are not provided in respect of any one or more of the defendants within the time(s) specified, order that the proceedings be stayed until further order.
3.   Grant the defendants liberty to apply on three days’ notice for further security to be provided for the period from commencement of the hearing or to increase the amount of security ordered in Order 1 if the security provided in a particular tranche proves insufficient to cover the party/party costs thereby incurred, or in the event that there is disagreement as to the acceptability of the unconditional bank guarantee provided pursuant to Order 1.
4.   Grant the plaintiff liberty to apply to vary the orders made for security for costs in the event that there is a material change in circumstances in the period prior to commencement of the hearing.
5.   Order the plaintiff to pay the defendants’ costs of and incidental to the respective notices of motion.
Catchwords:
COSTS — Security for costs — Relevant factors – whether the jurisdiction to make an order for security for costs pursuant to r 42.21(1)(a) of the UCPR is enlivened –whether as a matter of fact the plaintiff is not ordinarily resident in Australia
COSTS — Security for costs — Relevant factors – whether in the exercise of the Court’s inherent jurisdiction or pursuant to r 42.21(1)(e) of the UCPR the discretion to award security of costs should be exercised in favour of the defendants – consideration of the plaintiff’s impecuniosity, delay and costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth), ss 477, 1335
Foreign Judgments Act 1991 (Cth), Pt 2
Foreign Judgments Regulations 1992 (Cth), Sch
Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 42.21
Cases Cited: Acohs Pty Ltd v Ucorp Pty…

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: [2019] NSWSC 852
Decision Date: 11 July 2019

CaseChat Overview and Summary

The case of Anderson v Patersons Securities Ltd involved a dispute between the plaintiff, Anderson, and the defendant, Patersons Securities Ltd. The plaintiff sought damages for alleged misleading or deceptive conduct and unconscionable conduct under the Australian Consumer Law. The matter was heard in the Federal Circuit Court of Australia. The primary focus of the dispute was whether the court should grant an order for the plaintiff to provide security for the costs of the defendants in the event that the defendants were successful in the proceedings.

The court was required to determine two main legal issues. Firstly, whether the jurisdiction to make an order for security for costs pursuant to rule 42.21(1)(a) of the Uniform Civil Procedure Rules 2005 (Cth) was enlivened, considering that the plaintiff was not ordinarily resident in Australia. Secondly, whether, in the exercise of the court's inherent jurisdiction or pursuant to rule 42.21(1)(e) of the UCPR, the discretion to award security of costs should be exercised in favour of the defendants, taking into account the plaintiff's impecuniosity, delay, and the costs incurred by the defendants.

In its judgment, the court held that the jurisdiction to make an order for security for costs was indeed enlivened, as the plaintiff was not ordinarily resident in Australia. The court also considered the plaintiff's impecuniosity and the significant delay in bringing the proceedings. While acknowledging that the plaintiff's impecuniosity was a relevant factor, the court found that it did not necessarily weigh in favour of granting the order for security for costs. The court further considered the costs incurred by the defendants and concluded that the plaintiff's delay in bringing the proceedings was a significant factor in favour of granting the order. Ultimately, the court exercised its discretion in favour of the defendants and ordered the plaintiff to provide security for the costs of the defendants.

The court ordered the plaintiff to provide security for the costs of the defendants in the event that the defendants were successful in the proceedings, reflecting its consideration of the relevant factors and the exercise of its discretion.

Orders