AUS ASIA MINERALS LTD -v- BALL [2015] WASCA 251 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 251 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:159/2015 | 19 FEBRUARY 2016 | |
| Coram: | MURPHY JA | 26/02/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for security allowed | ||
| B | |||
| PDF Version |
| Parties: | AUS ASIA MINERALS LTD EVAN WILLIAM BALL |
Catchwords: | Practice and procedure Security for costs Appeal by company against dismissal of application to set aside statutory demand Whether company is the 'defender' of the 'litigation' Whether the 'litigation' for this purpose is the proceedings commenced by the institution of the appeal |
Legislation: | Corporations Act 2001 (Cth), s 1335(1) |
Case References: | Aquatown Pty Ltd v Holder Stroud Pty Ltd (1995) 18 ACSR 622 Aurora Networks Pty Ltd v Halbedi; In the Matter of Aurora Networks Pty Ltd [2013] FCA 632 Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263 Dagenham Nominees Pty Ltd trading as Banwell Marine Service v Gary Shanks [2011] SASC 163; (2011) 110 SASR 577 Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd [No 2] [2014] WASCA 106 Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205 Wise Energy Group Company Ltd v Rocke [2015] WASCA 192 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AUS ASIA MINERALS LTD -v- BALL [2015] WASCA 251 (S) CORAM : MURPHY JA HEARD : 19 FEBRUARY 2016 DELIVERED : 26 FEBRUARY 2016 FILE NO/S : CACV 159 of 2015 BETWEEN : AUS ASIA MINERALS LTD
- Appellant
AND
EVAN WILLIAM BALL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ACTING MASTER GETHING
Citation : AUS ASIA MINERALS LTD -v- BALL [2015] WASC 399
File No : COR 157 of 2015
Catchwords:
Practice and procedure - Security for costs - Appeal by company against dismissal of application to set aside statutory demand - Whether company is the 'defender' of the 'litigation' - Whether the 'litigation' for this purpose is the proceedings commenced by the institution of the appeal
Legislation:
Corporations Act 2001 (Cth), s 1335(1)
Result:
Application for security allowed
Category: B
Representation:
Counsel:
Appellant : Ms K J Levy
Respondent : Mr C R Bailey
Solicitors:
Appellant : Gadens Lawyers
Respondent : Williams & Hughes
Case(s) referred to in judgment(s):
Aquatown Pty Ltd v Holder Stroud Pty Ltd (1995) 18 ACSR 622
Aurora Networks Pty Ltd v Halbedi; In the Matter of Aurora Networks Pty Ltd [2013] FCA 632
Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263
Dagenham Nominees Pty Ltd trading as Banwell Marine Service v Gary Shanks [2011] SASC 163; (2011) 110 SASR 577
Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd [No 2] [2014] WASCA 106
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205
Wise Energy Group Company Ltd v Rocke [2015] WASCA 192
1 MURPHY…
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Details
- Case
- [2015] WASCA 251 (S)
- Decision Date
CaseChat Overview and Summary
Aus Asia Minerals Limited (the appellant) sought to appeal a decision dismissing an application for security for costs against Ball (the respondent). The dispute arose from a statutory demand issued by the respondent, which the appellant sought to set aside on the basis of the respondent's failure to provide security for costs. The case was heard by the Supreme Court of New South Wales.
The central issue before the court was whether the appellant, in seeking security for costs, was the "defendant" in the "litigation" for the purpose of the security for costs provisions. The appellant argued that the litigation in question was the proceedings commenced by the institution of the appeal, while the respondent contended that the litigation was the statutory demand proceedings. The court had to determine which party was the "defendant" in order to assess the appropriate level of security for costs.
In determining the issue, the court found that the appellant was indeed the "defendant" in the relevant litigation for the purpose of the security for costs provisions. The court held that the "litigation" was the proceedings commenced by the institution of the appeal, and as such, the appellant was required to provide security for costs. The court reasoned that the statutory demand proceedings were not the relevant litigation because the appeal proceedings were the ongoing and primary legal action in which the appellant was defending against the respondent's claims.
The court allowed the appeal and set aside the earlier decision dismissing the appellant's application for security for costs. The court ordered the appellant to provide security for the costs of the respondent in the appeal proceedings. This decision clarified the scope of the security for costs provisions in the context of an appeal against a statutory demand and reinforced the appellant's right to seek security for costs in the ongoing litigation.
The central issue before the court was whether the appellant, in seeking security for costs, was the "defendant" in the "litigation" for the purpose of the security for costs provisions. The appellant argued that the litigation in question was the proceedings commenced by the institution of the appeal, while the respondent contended that the litigation was the statutory demand proceedings. The court had to determine which party was the "defendant" in order to assess the appropriate level of security for costs.
In determining the issue, the court found that the appellant was indeed the "defendant" in the relevant litigation for the purpose of the security for costs provisions. The court held that the "litigation" was the proceedings commenced by the institution of the appeal, and as such, the appellant was required to provide security for costs. The court reasoned that the statutory demand proceedings were not the relevant litigation because the appeal proceedings were the ongoing and primary legal action in which the appellant was defending against the respondent's claims.
The court allowed the appeal and set aside the earlier decision dismissing the appellant's application for security for costs. The court ordered the appellant to provide security for the costs of the respondent in the appeal proceedings. This decision clarified the scope of the security for costs provisions in the context of an appeal against a statutory demand and reinforced the appellant's right to seek security for costs in the ongoing litigation.
Orders
Orders of the court
Application for security allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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