Bozic v Billis - [2022] WASC 294

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BOZIC -v- BILLIS [2022] WASC 294
CORAM:   ALLANSON J
HEARD:   31 AUGUST 2022
DELIVERED          :   5 SEPTEMBER 2022
FILE NO/S:   CIV 2557 of 2017
BETWEEN:   FRANJO BOZIC
Plaintiff
AND
ANTON BILLIS
Defendant

FILE NO/S: CIV 2485 of 2018
BETWEEN: FRANJO BOZIC
Plaintiff
AND
RAND MINING LIMITED
First Defendant
ANTON BILLIS
Second Defendant

Catchwords:

Practice and procedure - Security for costs - Where plaintiff lives in Croatia and has no assets in Australia except those in issue in the proceedings - Where existing costs orders have not yet been satisfied - Where actions to be tried together and almost all disputed issues common to both actions

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Security for costs ordered

Representation:

CIV 2557 of 2017

Counsel:

Plaintiff	:	J C Yeldon
Defendant	:	I Armeli

Solicitors:

Plaintiff	:	Westmont Legal
Defendant	:	Armeli & Molony Lawyers

CIV 2485 of 2018

Counsel:

Plaintiff	:	J C Yeldon
First Defendant	:	No appearance
Second Defendant	:	I Armeli

Solicitors:

Plaintiff	:	Westmont Legal
First Defendant	:	Nova Legal
Second Defendant	:	Armeli & Molony Lawyers

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

Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171
Energy Drilling Inc v Petroz NL (1989) ATPR 50
Global Finance Group Pty Ltd (in liq) v Marsden Partners [2004] WASC 52
Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249
PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321

ALLANSON J:

Introduction

Franjo Bozic is the plaintiff in two actions in both of which Anthony Billis is a defendant. It is convenient to refer to them as the 2017 Action and the 2018 Action, the years in which they were commenced.[1]
[1] Proceedings against the first defendant in the 2018 Action, Rand Mining Limited, are currently stayed. In these reasons, I refer to Mr Billis as the defendant.
Orders for security for costs have previously been made in each action. In 2018, Archer J ordered security for costs to the stage of mediation in the 2017 Action; in 2019, Registrar Whitby ordered security for the costs of Rand Mining (then the sole defendant) in the 2018 Action.
Mediation is now complete. The defendant applies for orders for the plaintiff to provide security for costs to trial in each action.

The actions

The 2017 Action

The plaintiff was the registered holder of 224,000 shares in Tribune Resources. He pleads that, on or about 1 March 2010, the defendant caused the transfer of those shares to the defendant's wife, Ms Phanatchankorn Wichaikul.
The plaintiff alleges that the defendant signed the transfer form in the plaintiff's name and without his authority, and that the transfer was fraudulent.
The defendant pleads that, in or about April 2005, the parties made an oral agreement, by which the plaintiff 'pledged' 224,000 shares…

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: [2022] WASC 294
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was tasked with determining the matter of Bozic v Billis, where Franjo Bozic, a Croatian resident with no assets in Australia, sought to contest claims made by Anton Billis regarding the ownership of shares in two companies, Tribune Resources and Rand Mining. The court was required to decide whether Bozic should provide security for costs, considering his lack of assets in Australia and the existence of prior unsatisfied costs orders against him.

The legal issues revolved around the application for security for costs under the Rules of the Supreme Court 1971 (WA), specifically Order 25. The court had to weigh the plaintiff's lack of assets within the jurisdiction against the need to protect the defendant from the risk of unrecoverable costs if Bozic were to lose the case. The court had to assess the merits of the claims, the property available to satisfy any order for costs against Bozic, and whether the normal processes of the Court would be available for enforcement of any order for costs made against Bozic.

Allanson J concluded that the relevant factors strongly favoured the making of a further order for security for costs. Despite the plaintiff's lack of assets in Australia and the existence of prior costs orders, the court found that the merits of the claims did not outweigh these facts. The court also considered that the plaintiff's allegations of fraud in the 2017 Action, and the plaintiff defending his title in the 2018 Action, were significant. The court ordered security for costs in the amount of $100,000, with $50,000 allocated to each action, and allowed for further applications if significant events occurred.

The court's decision was based on the need to balance the protection of the defendant from unrecoverable costs with the avoidance of unnecessary prejudice to the plaintiff. The order for security for costs aimed to ensure that a successful defendant would have a fund available within the jurisdiction to enforce a judgment for costs.

Orders