Brereton v Lester
[2011] VCC 215
•17 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-10-04930
| MICHAEL RICHARD BRERETON | Plaintiff |
| v. | |
| ANDREW WILLIAM JOSEPH LESTER | Defendant |
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| JUDGE: | His Honour Judge Anderson |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 March 2011 |
| DATE OF JUDGMENT: | 17 March 2011 |
| CASE MAY BE CITED AS: | Brereton v. Lester |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 215 |
REASONS FOR JUDGMENT
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| Catchwords: | Practice and procedure – Security for costs – Whether plaintiff “ordinarily resides out of Victoria” – Order 62 rule 2 County Court Civil Procedure Rules 2008. |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Hutchinson | Tony Hargreaves & Partners |
| For the Defendant | Mr T. Davies | Hopkins Lawyers |
| HIS HONOUR: |
1 The defendant seeks security for costs on the basis that the plaintiff is ordinarily resident out of Victoria. The material filed in support of the application was based upon the fact that the plaintiff had resided in California for a number of years. It appears, however, that in March 2010, he left America and returned to Australia. He spends some time travelling outside Australia. In the last 11 months, he has spend two short periods of time in America, and periods of a week or so on about 16 occasions in Indonesia, both in Bali and Djakarta.
2 There is insufficient evidence for me to conclude that the plaintiff is ordinarily resident in America or is ordinarily resident in Indonesia. I consider it is more likely, on the evidence presented to me, including the oral evidence given by Mr Brereton, that he is ordinarily resident in Victoria at premises in Abbotsford, and that he lives there pursuant to an arrangement with his sister, who is the owner of the premises and in respect of whose businesses he carries out consulting work, which from time to time takes him overseas.
3 In the circumstances that the basis for the Court to order security for the defendant’s costs has not been made out, and therefore the application must fail. The defendant’s summons, filed 10 January 2011 will be dismissed.
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Certificate
I certify that this one page is true copy of the reasons for decision of His Honour Judge
Anderson delivered on 17 March 2011.
Dated: 17 March 2011
Caroline Dawes
Associate to His Honour Judge Anderson
| VCC:.. | 1 |
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