BRIDE & ANOR -v- THE AUSTRALIAN BANK LTD & ORS [1999] WASCA 88

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 88
Court:	THE FULL COURT (WA)
Case No:	FUL:148/1998	Heard:	4 JUNE 1999
Coram:	WALLWORK J WHEELER J MILLER J	Delivered:	2/07/99
No of pages:	10	Judgment Part:	1 of 1
Result:	Order for security of costs set aside
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Parties:	EDWARD JAMES BRIDE WENDY MARGARET BRIDE AS TRUSTEES OF THE PINWERNYING FAMILY TRUST THE AUSTRALIAN BANK LTD SOUTHERN ROLLED OATS PTY LTD (FORMERLY SOUTHERN FOODS (1986) PTY LTD) MILNE FEEDS PTY LTD
Catchwords:	Security for costs Bankruptcy of plaintiffs Effect of bankruptcy Relevance of common law principles to Rules of Court O 25 r2(d) Whether exercise of discretion should be interfered with Turns on own facts
Legislation:	Nil
Case References:	Bride & Anor v Hammond Fitzgerald & King, unreported; SCt of WA (Scott J); Library No 930303; 6 May 1993 Bride & Anor v KMG Hungerfords, unreported; SCt of WA (Murray J); Library No 8903; 10 June 1991 Coyne v WA Newspapers Ltd (No 1) (1996) 15 WAR 51 Coyne v WA Newspapers Ltd (No 1) (1996) 15 WAR 51 Drumdurn v Braham [1982] 42 ALR 563 Farrer v Lacey [1885] Ch D 482 Fuller v Beech Petroleum NL (1993) 43 FCR 60 John Arnolds Surf Shop Pty Ltd (In Liq) v Heller Factors Pty Ltd & Allert (1979) 22 SASR 20 Lucas v Yorke (1985) 158 CLR 661 McSharry v Railway Commissioners (1897) 18 LR (NSW) 33 Want v Moss [1889] 10 LR (NSW) 274 Bride & Anor v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 950054A; 15 February 1995 Bride & Anor v Peat Marwick Mitchell (1989) WAR 383 Bride as Trustees for the Pinwernying Family Trust v KMG Hungerfords (1991) 109 FLR 256 Bride v Australian Bank Ltd & Stewart, unreported; Fed C of A; WAG 191; 25 October 1989 Bride v Milne Feeds Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950622A; 21 November 1995 Bride v Milne Feeds Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 970060A; 21 February 1997 Cowell v Taylor (19885) 31 Ch D 34 Lindsay Parkinson Ltd v Triplan Ltd [1973] 2 All ER 273 MA Productions Pty Ltd v Austrarama Television Pty Ltd & Anor [1982] 7 ACLR 97 Re Southern Rolled Oats Pty Ltd & Ors; Ex parte Bride, unreported; FCt SCt of WA; Library No 950723A; 20 December 1995 Riot Nominees Pty Ltd v Suzuki Australia Pty Ltd (1981) 34 ALR 653 Rondel v Worskley (1967) 1 QB 443

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BRIDE & ANOR -v- THE AUSTRALIAN BANK LTD & ORS [1999] WASCA 88 CORAM : WALLWORK J

WHEELER J

MILLER J

HEARD : 4 JUNE 1999 DELIVERED : 2 JULY 1999 FILE NO/S : FUL 148 of 1998
FUL 152 of 1998 BETWEEN : EDWARD JAMES BRIDE

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: [1999] WASCA 88
Decision Date: 2 JULY 1999

CaseChat Overview and Summary

The plaintiffs in the case, Bride, sought an order for security for costs against The Australian Bank Ltd. The dispute arose from a legal action where the plaintiffs had become bankrupt. The court was tasked with deciding whether the exercise of discretion in setting aside the security for costs order should be interfered with, given the bankruptcy of the plaintiffs. The legal issue at hand was whether the common law principles should be applied in conjunction with Rule 2(d) of Order 25 of the Rules of Court when determining the exercise of discretion. The court held that the discretion should not be interfered with and was ultimately guided by the unique facts of the case.

The court examined the interaction between the common law principles and Rule 2(d) of Order 25 of the Rules of Court. It acknowledged the relevance of common law principles in assessing the exercise of discretion but ultimately emphasised that the decision should be based on the particular circumstances of the case. The bankruptcy of the plaintiffs was a significant factor that influenced the court's decision. The court found that the exercise of discretion in setting aside the security for costs order should not be interfered with, as it was appropriate to consider the unique facts of the case, including the bankruptcy of the plaintiffs. This approach allowed the court to make a decision that was tailored to the specific circumstances and did not rely solely on the application of common law principles or the Rules of Court.

Consequently, the court set aside the order for security of costs. This decision was based on the court's assessment of the unique facts of the case, including the bankruptcy of the plaintiffs, and its determination that the exercise of discretion should not be interfered with. The court's reasoning was grounded in the specific circumstances of the case, and it declined to rely solely on the common law principles or the Rules of Court in making its decision. The outcome of the case highlights the importance of considering the unique facts of each case when exercising discretion in legal matters.

Orders

Orders of the court

Order for security of costs set aside

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

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