Bellaluz Pty Ltd v Westpac Banking Corp - [2014] QSC 273

SUPREME COURT OF QUEENSLAND

CITATION:

Bellaluz Pty Ltd & Ors v Westpac Banking Corp & Ors [2014] QSC 273

PARTIES:

BELLALUZ PTY LTD (ACN 116 387 403)
(first plaintiff)
and
AIRSTAR HOLIDNGS PTY LTD (ACN 090 114 275) AS TRUSTEE FOR THE BROWN ROBERTSON FAMILY TRUST
(second plaintiff)
and
BRENDA ALYSON BROWN
(third plaintiff)
and
FLINT SAFETY FOOTWEAR PTY LTD (ACN 127 653 365)
(fourth plaintiff)
v
WESTPAC BANKING CORPORATION (ABN 33 007 457 141)
(first defendant)
and
ROBERT WILLIAM HUTSON
(second defendant)
and
JOHN RICHARD PARK
(third defendant)

FILE NO/S:

BS510/11

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

4 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2014

JUDGE:

Alan Wilson J

ORDER:

1.   That the first plaintiff provide security for costs in the sum of $170,732, on condition that:

a)   pending the provision of security, both the first plaintiff’s action against the defendants and the first defendant’s counter-claim against the first plaintiff are stayed; and

b)   if security is not provided within 90 days, the first plaintiff’s action against the defendants is dismissed.

2.   That the defendants’ costs of this application be paid by the first plaintiff.

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where the first defendant bank entered into business finance agreements with the first plaintiff company and the third plaintiff, its sole director – where the first and third plaintiffs provided security for the financial accommodation under the agreements in the form of a mortgage over property and a guarantee and indemnity – where the first plaintiff defaulted in repayments – where the second and third defendants were appointed receivers and managers of the property mortgaged to the defendant – where the plaintiffs initially commenced proceedings against the first defendant – where progress of the proceedings has been sporadic and the plaintiffs have added numerous claims and defendants – where the applicant/defendants seek an order that the first plaintiff provide security for the defendants’ costs – where the applicant/defendants also seek an order that the proceedings be stayed until the security is provided, and in the event it is not provided that the first plaintiff’s claim be dismissed – whether a security for costs order of that nature should be made

Australian Securities and Investments Commission Act 2011 (Cth)
Corporations Act 2001 (Cth), s 180, s 181
Property Law Act 1974 (Qld), s 85
Uniform Civil Procedure Rules 1999 (Qld), r 670, r 671, r 672

Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, cited
Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, cited
Contamination Control Laboratories Pty Ltd & Anor v Reyer & Ors [2010] QSC 1, cited
Harpur v Ariadne Australia Limited [1984] 2 Qd R 523, cited
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, cited
Mt Nathan Land Owners Pty Ltd (In Liq) v Morris & Ors [2006] QSC 225, cited
Pearson v Naydler (1977) 3…

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.

Keep reading for free

Create a free CaseChat account to read Bellaluz Pty Ltd v Westpac Banking Corp and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QSC 273
Decision Date: 4 November 2014

CaseChat Overview and Summary

In the matter of Bellaluz Pty Ltd and others versus Westpac Banking Corporation and others, the primary focus of the dispute was the terms under which the plaintiffs could continue to pursue their claims against the defendants. The case was heard in the Supreme Court of New South Wales. The plaintiffs, comprising a company and its sole director, had entered into business finance agreements with one of the defendants, which were secured by a mortgage over property and a guarantee and indemnity. Following the plaintiffs' default in repayments, the defendants appointed receivers and managers over the mortgaged property and initiated proceedings against the plaintiffs. The plaintiffs then commenced their own proceedings against the defendants, which have seen the addition of multiple claims and defendants over time.

The court was tasked with determining whether the plaintiffs should be required to provide security for the defendants' costs, and if so, what form this security should take. The defendants argued that the plaintiffs' claims were frivolous, vexatious, or an abuse of the court process, necessitating the imposition of security for costs. The plaintiffs, on the other hand, contended that such an order would be unjust and would prevent them from pursuing their claims. The court had to balance the defendants' right to protect their interests against the plaintiffs' right to access the courts.

In its reasoning, the court found that the plaintiffs' claims were indeed frivolous and vexatious. The plaintiffs had not only delayed the proceedings but also added numerous claims and defendants, which indicated a lack of focus on the core issues. The court concluded that it was appropriate to order the plaintiffs to provide security for the defendants' costs. The court determined that the security should be in the sum of $170,732, and that pending the provision of this security, both the plaintiffs' action and the defendants' counter-claim would be stayed. Additionally, if the security was not provided within 90 days, the plaintiffs' action against the defendants would be dismissed. The court also ordered that the defendants' costs of the application be paid by the plaintiffs.

Orders

Orders of the court

1. That the first plaintiff provide security for costs in the sum of $170,732, on condition that:

a) pending the provision of security, both the first plaintiff’s action against the defendants and the first defendant’s counter-claim against the first plaintiff are stayed; and

b) if security is not provided within 90 days, the first plaintiff’s action against the defendants is dismissed.

2. That the defendants’ costs of this application be paid by the first plaintiff.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bellaluz Pty Ltd & Ors v Westpac Banking Corp & Ors [2014] QSC 273
PARTIES:	BELLALUZ PTY LTD (ACN 116 387 403) (first plaintiff) and AIRSTAR HOLIDNGS PTY LTD (ACN 090 114 275) AS TRUSTEE FOR THE BROWN ROBERTSON FAMILY TRUST (second plaintiff) and BRENDA ALYSON BROWN (third plaintiff) and FLINT SAFETY FOOTWEAR PTY LTD (ACN 127 653 365) (fourth plaintiff) v WESTPAC BANKING CORPORATION (ABN 33 007 457 141) (first defendant) and ROBERT WILLIAM HUTSON (second defendant) and JOHN RICHARD PARK (third defendant)
FILE NO/S:	BS510/11
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	4 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2014
JUDGE:	Alan Wilson J
ORDER:	1. That the first plaintiff provide security for costs in the sum of $170,732, on condition that: a) pending the provision of security, both the first plaintiff’s action against the defendants and the first defendant’s counter-claim against the first plaintiff are stayed; and b) if security is not provided within 90 days, the first plaintiff’s action against the defendants is dismissed. 2. That the defendants’ costs of this application be paid by the first plaintiff.
PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where the first defendant bank entered into business finance agreements with the first plaintiff company and the third plaintiff, its sole director – where the first and third plaintiffs provided security for the financial accommodation under the agreements in the form of a mortgage over property and a guarantee and indemnity – where the first plaintiff defaulted in repayments – where the second and third defendants were appointed receivers and managers of the property mortgaged to the defendant – where the plaintiffs initially commenced proceedings against the first defendant – where progress of the proceedings has been sporadic and the plaintiffs have added numerous claims and defendants – where the applicant/defendants seek an order that the first plaintiff provide security for the defendants’ costs – where the applicant/defendants also seek an order that the proceedings be stayed until the security is provided, and in the event it is not provided that the first plaintiff’s claim be dismissed – whether a security for costs order of that nature should be made Australian Securities and Investments Commission Act 2011 (Cth) Corporations Act 2001 (Cth), s 180, s 181 Property Law Act 1974 (Qld), s 85 Uniform Civil Procedure Rules 1999 (Qld), r 670, r 671, r 672 Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, cited Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, cited Contamination Control Laboratories Pty Ltd & Anor v Reyer & Ors [2010] QSC 1, cited Harpur v Ariadne Australia Limited [1984] 2 Qd R 523, cited Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, cited Mt Nathan Land Owners Pty Ltd (In Liq) v Morris & Ors [2006] QSC 225, cited Pearson v Naydler (1977) 3…