JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BOZIC -v- RAND MINING LIMITED [2019] WASC 73
CORAM: ACTING MASTER WHITBY
HEARD: 25 FEBRUARY 2019
DELIVERED : 12 MARCH 2019
FILE NO/S: CIV 2485 of 2018
BETWEEN: FRANJO BOZIC
Plaintiff
AND
RAND MINING LIMITED
Defendant
Catchwords:
Application for summary judgment - Leave to file summary judgment out of time - Prima facie right to judgment - Arguable defence to summary judgment - Application for summary judgment dismissed
Corporations - Shares and shareholders - Registration of transfer of shares - Right to refuse to register transfer - s 1072F(2)(C) of Corporations Act 2001 (Cth) - ASX Listing Rule 8.10.1
Application for security for costs - O 25 Rules of the Supreme Court 1971 (WA) - Plaintiff resides outside of jurisdiction - Application for security for costs granted
Legislation:
Corporations Act 2001 (Cth), s 1072F(2)(C)
Rules of the Supreme Court 1971 (WA), O 14 r 1, O 14 r 2, O 14 r 3, O 25 r 3, O 59 r 9
Result:
Application for summary judgment dismissed
Application for security for costs granted
Category: B
Representation:
Counsel:
| Plaintiff | : | J C Yeldon |
| Defendant | : | P Ward |
Solicitors:
| Plaintiff | : | Westmont Legal |
| Defendant | : | Nova Legal |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Bertola v Australia and New Zealand Banking Group Ltd [2016] WASC 165
Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [2007] WASCA 67
Westpac Banking Corporation v Anderson [2017] WASC 106
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382
ACTING MASTER WHITBY:
This is the plaintiff's chamber summons for summary judgment filed on 8 November 2018 and the defendant's chamber summons for security for costs pursuant to O 25 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) or the inherent jurisdiction of the court filed on 11 October 2018.
Plaintiff's chamber summons for summary judgment
The plaintiff seeks orders as follows:
(1)The requirement for conferral under O 59 r 9 of the RSC be dispensed with for the purposes of this chamber summons.
(2)There be an extension of time for the bringing of this summary judgment application by the plaintiff.
(3)There be judgment for the plaintiff in terms of the relief sought in the writ of summons.
(4)The defendant pay the plaintiff's costs of the chamber summons and of the action.
Order 59 r 9 conferral
The defendant submits that the plaintiff's application has been brought in breach of O 59 r 9 RSC in that the plaintiff's memorandum of conferral dated 8…
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- AGLC
- Bozic v Rand Mining Limited [2019] WASC 73
- Case
- [2019] WASC 73
- Decision Date
CaseChat Overview and Summary
In determining these issues, the court noted that while there is a policy preference for summary judgment applications to be brought within 21 days of the commencement of proceedings, the court retains broad discretion to allow applications out of time. The court considered the lack of prejudice to the defendant and the absence of any significant delay in bringing the application for summary judgment. The court also emphasised the well-established principle that summary judgment should only be ordered in the clearest of cases, with a high degree of certainty about the ultimate outcome if the case proceeded to trial. The court found that Rand Mining Limited had an arguable defence, and therefore, Bozic's application for summary judgment was dismissed.
The court further addressed the application for security for costs, considering the plaintiff's residence outside the jurisdiction. The court granted the application for security for costs, recognising the potential financial risk to Rand Mining Limited if the plaintiff were to fail in the proceedings. This decision highlights the importance of the court's discretion in balancing the interests of both parties in complex litigation involving corporate law and shareholder disputes.
Orders
Orders of the court
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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
Counsel for the defendant relies upon the decision of Pritchard J in Westpac Banking Corporation v Anderson [2017] WASC 106 [38]: The 21 day limit for applications for summary judgment clearly reflects a policy view that such applications should be brought at an early stage in the proceedings, and before too much expense has been incurred. If there is a delay, it must be explained, and it is up to the applicant to show that the delay in bringing the application was justifiable in the circumstances. However, the Court clearly has a broad discretion as to whether to grant leave to apply out of time. Clearly the prospects of the application will be relevant. To proceed to trial, with the expense that that may incur, when there is no defence to an action, or where an action pursued by counterclaim has no prospect of succeeding, would of itself be contrary to modern principles of case management. Prejudice to the other party, occasioned by the delay in bringing the application, will clearly be relevant. The plaintiff commenced the proceedings by writ of summons filed on 23 August 2018. The application for summary judgment was filed on 8 November 2018, some two and a half months later. The plaintiff submitted that there was no prejudice to the defendant arising from the delay in bringing the application. The plaintiff did not adduce any evidence to explain and justify the delay in bringing the application. Given that the court's discretion is broad and that the defendant can point to no significant prejudice arising from the delay in the plaintiff bringing the application for summary judgment, I exercise my discretion to grant leave to the plaintiff to bring the application for summary judgment out of time. The law in relation to summarily determining a civil action is well established. The High Court held in Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, 99 that:The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings failed to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies with such a disposition is sought in a summary judgment application supported by evidence (references omitted). Summary judgment must only be ordered in the clearest of cases. The High Court in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] held:It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (citations omitted).