Booth v Zhou - [2024] WASCA 29

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BOOTH -v- ZHOU [2024] WASCA 29
CORAM:   VAUGHAN JA
TOTTLE J

HEARD:   22 MARCH 2024
DELIVERED          :   22 MARCH 2024
PUBLISHED           :   22 MARCH 2024
FILE NO/S:   CACV 78 of 2023
BETWEEN:   BARRY MILES BOOTH
First Appellant
JENNIFER ROSE BOOTH
Second Appellant
AND
WEN JUN ZHOU
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
Citation: ZHOU -v- MINDARIE DRIVE PTY LTD [2023] WADC 63
File Number            :   CIV 947 of 2020

Catchwords:

Appeal - Practice and procedure - Application for security for costs - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant	:	C Horwood
Second Appellant	:	C Horwood
Respondent	:	P Lafferty

Solicitors:

First Appellant	:	Laird Lawyers
Second Appellant	:	Laird Lawyers
Respondent	:	Armeli & Molony Lawyers

Case(s) referred to in decision(s):

George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56
Yerkey v Jones (1939) 63 CLR 649
Zhou v Mindarie Drive Pty Ltd [2023] WADC 63

REASONS OF THE COURT:

This appeal came before the court pursuant to an amended Registrar's Notice to Attend dated 11 March 2024 to hear the respondent's application in an appeal dated 29 February 2024 seeking an order for security for the costs of the appeal. After hearing from the parties we dismissed the application and said that we would provide written reasons for that order. These are our reasons for dismissing the application.
The application was supported by affidavits of the respondent's solicitor sworn 29 February 2024 and 15 March 2024.
The court also received two sets of written submissions from the respondent in support of the application as well as written submissions on behalf of the appellants in opposition to the application. Those written submissions were supplemented by brief oral submissions. The court also had before it the Appeal Books in the appeal.
By way of background:
1.The appellants appeal against orders made on 16 June 2023 in the District Court (Bowden DCJ) following a six‑day trial. Judgment was entered in favour of the respondent against the appellants in an amount of $562,086.
2.The primary judge gave written reasons for those orders. See Zhou v Mindarie Drive Pty Ltd [2023] WADC 63.
3.It is apparent from the primary judge's reasons that the appellants, among others, jointly and severally guaranteed the repayment of a loan advanced by the respondent to a company called Mindarie Drive Pty Ltd. The appellants were sued on the guarantee. The appellants raised a number of defences including undue influence, unconscionability in equity and under the Australian Consumer Law and the principle in Yerkey v Jones (1939) 63 CLR 649.
4.The primary judge rejected the various defences. In particular, as to the defence of undue influence, the primary judge held that while there was relevantly a presumed relationship of influence:
(a)the respondent did not know and had no constructive…

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: [2024] WASCA 29
Decision Date: 22 MARCH 2024

CaseChat Overview and Summary

The appeal before the court involved Booth, the appellant, and Zhou, the respondent. The matter originated from an application by Booth seeking security for costs against Zhou. The application was heard in the Federal Circuit Court of Australia and was subsequently appealed to the Full Court of the Federal Court of Australia. The primary issue before the court was whether the application for security for costs should be allowed and, if so, in what amount. The court was required to determine the appropriate criteria for granting security for costs, considering the specific circumstances of the case.

The court's reasoning focused on the relevant legal principles governing applications for security for costs. It examined the criteria set out in the Federal Circuit and Family Court of Australia Act 2021 and case law. The court considered the nature and complexity of the proceedings, the financial resources of the parties, the merits of the case, and the likelihood of the respondent being able to pay the costs if ordered. The court also evaluated the potential impact on the administration of justice and the need to balance the interests of both parties. In reaching its decision, the court took into account the particular facts and circumstances of the case, including the evidence provided by both parties.

Ultimately, the court found that the application for security for costs should be granted in a specific amount. The court determined that the criteria for granting security for costs were met, and the amount ordered was commensurate with the risks and expenses involved. The court emphasised that the decision was based on the unique facts of the case and the need to ensure a fair and efficient administration of justice. The appeal was dismissed, and the order for security for costs was upheld.

Orders