Bypass Payment Systems Pty Ltd v Prime Project Development (Cairns) Pty Ltd

[2013] VCC 431

4

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-06116

BYPASS PAYMENT SYSTEMS PTY LTD	Plaintiff
v.
PRIME PROJECT DEVELOPMENT (CAIRNS) PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2013
DATE OF JUDGMENT:	26 April 2013 (revised 29 April 2013)
CASE MAY BE CITED AS:	Bypass Payment Systems Pty Ltd v. Prime Project Development (Cairns) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 431

REASONS FOR JUDGMENT

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Catchwords:            Practice and procedure – Security for costs application – Adjourned to the trial of the proceeding, and a related proceeding, on 9 May 2013.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S. Chessell	Berrigan Doube Lawyers
For the Defendant	Mr D. Connell	Pointon Partners

HIS HONOUR:

1This proceeding is fixed for trial on 9 May 2013. The proceeding was commenced in 2011 and is based upon a promissory note. A subsequent proceeding issued by the defendant and a related company in 2012 is to be heard at the same time. The plaintiff’s claim in the 2012 action has been discontinued. The counterclaim is proceeding and is essentially similar to the action commenced in 2011.

2The defendant’s solicitors first foreshadowed their intention to make application for security for costs in correspondence in mid January 2013. The application for security first came before the Court on 13 March 2013, but the hearing was not completed on that day. It was anticipated by the parties before the hearing that the application could not proceed without certain deponents of affidavits being cross examined by videolink from Queensland. The Court was reluctant to undertake that exercise as the parties relied upon affidavit material relating to the substance of the claim and the defence to that claim, and therefore sought in the application for security for costs to canvass the merits of the proceeding and the defence to the proceeding by the cross examination of the deponents to those affidavits.

3The application for security for costs was brought back before the Commercial List Duty Judge on 9 April 2013. The parties considered that their application was part heard before me, and as a consequence, the application was further adjourned until today.

4I have a part-heard case from Wednesday which is due to resume this morning. I do not consider that the present application could be resolved without further substantial submissions from the parties. The legal representatives of the parties were far more optimistic, but I consider that in relation to the application, there are significant issues which require investigation and discussion including:

a.the strength of the plaintiff’s claim and the defence to that claim;

b.although there appears to be little issue that the plaintiff has very limited financial resources, those persons who would seek to benefit from the litigation have filed affidavits about their financial needs and those affidavits would need to be carefully considered;

c.there is an issue as to whether the proceeding would be stultified by an order for costs being made;

d.the proceeding, although issued in 2011, did not proceed as a defended matter until a default judgment was set aside. Nevertheless, an issue remains as to whether the application for security was made sufficiently promptly;

e.the quantum of any proposed security is in issue largely because a significant part of the defendant’s costs have already been incurred.

5In the circumstances, I consider it appropriate that the application for security be adjourned to the trial of the proceeding. The parties are to mediate their dispute in the next few days. There would then only be about a week until the trial date. I consider that the maintenance of the trial date without having made orders for security would offer the best chance to the parties of resolving their entire dispute, including the related proceeding.

6It may be that the trial judge, if the matter proceeds to trial, will consider it appropriate to deal with the application for security, or may decide the available time might be better spent in pursuing the final determination of the issues between the parties. It would not be appropriate, in any way, for me to curtail the options open to the trial judge. The matter has been adjourned primarily because I have insufficient time to properly consider and determine this matter today and there are other reasons why the adjournment of the application to the trial of the proceeding is considered a more appropriate course.

7In the circumstances, I make the following orders:

1. The defendant’s application in proceeding CI-11-06116 and by the defendant to counterclaim in proceeding number CI-12-05371 is adjourned to the trial of the proceeding on 9 May 2013.

2.        Reserve costs.

3.        Reserve liberty to apply.

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Certificate

I certify that the preceding 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 26 April 2013 and revised on 29 April 2013.

Dated: 29 April 2013

Catherine Kusiak    

Associate to His Honour Judge Anderson