Cameron Donald-Oates v Megan Lea Mitchell Donald
[2011] NSWSC 1391
•18 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: Cameron Donald-Oates v Megan Lea Mitchell Donald [2011] NSWSC 1391 Hearing dates: 9 November 2011 Decision date: 18 November 2011 Jurisdiction: Equity Division Before: Bryson AJ Decision: See [55]
Catchwords: PRACTICE and PROCEDURE - Statement of Claims - striking out claims - claims in Statement of Claim were struck out as they were unarguable in the face of a Release given by the plaintiff's bankruptcy trustee
SECURITY for COSTS - where plaintiff resided in Hong Kong subject to renewal of visas and his asset there were credit bank accounts and readily transmissible, security for costs was not limited to costs of registration of judgment in Hong Kong
Decision on factsLegislation Cited: Bankruptcy Act 1966 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Connop v Verena [1984] 1 NSWLR 71
Maxim's Caterers Ltd v Magnona Pty Ltd (No 1) [2010] FCA 450
Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2011] NSWCA 84
Re SCW (Express Detailing) Pty Ltd [2011] NSWSC 688Texts Cited: Nil Category: Interlocutory applications Parties: Cameron Donald-Oates (Plaintiff)
Megan Lea Mitchell Donald (Defendant)Representation: D Pritchard SC, N Kidd (Plaintiff)
M Ashhurst SC (Defendant)
Levitt Robinson Solicitors (Plaintiff)
Bridges Lawyers (Defendant)
File Number(s): 2011/142010
Judgment
The plaintiff is the defendant's brother. This is very unfortunate litigation relating to dealings with family property between persons who are closely related. Before they take the case to hearing the parties would be wise to consider whether any compromise can be reached. There is a risk that the costs will be disproportionate to the value in dispute. The application before me was strongly presented by Senior Counsel and cannot be disposed of briefly.
Underlying the plaintiff's claims is a discretionary Family Trust created by a deed dated 19 December 2003 the terms of which are not in evidence, of which Jo Donald Nominees Pty Ltd was the trustee. The Family Trust is sometimes called the Jo Donald Family Trust. The company came to be wholly controlled by the defendant who was its only director and officer. The plaintiff and the defendant were the primary objects or potential beneficiaries of the Family Trust. There were also secondary objects. The company bought an investment property at William Street, Double Bay on 9 December 2003. The plaintiff alleges that the parties and the company agreed that in consideration of his advancing $130,000 to the Family Trust to fund that purchase, the plaintiff would be paid $130,000 of the proceeds of sale of the property before any proceeds were distributed to beneficiaries. The purchase was funded by an advance of approximately $130,000 by the plaintiff and by $388,000 borrowed by the company from National Australia Bank on mortgage.
Then the plaintiff alleges that he caused renovations to the William Street property to be carried out, a new kitchen, new bathroom, painting and other renovations, and paid about $37,027 for the renovations.
About 12 May 2006 the defendant caused the company to transfer the property to herself for $480,000; the plaintiff alleges that this happened without his knowledge or consent. He alleges that there were breaches of trust in this transaction, and that the defendant knew of them. She paid out the mortgage debt and refinanced with a new loan, again on mortgage from National Australia Bank. Then about 25 September 2006 she caused the company to be deregistered. She held the property for some years, received rents and refinanced the mortgage with ANZ Banking Group, paid out the mortgage loan in full and sold the property in May 2011 to an unrelated party for $615,000. She received the proceeds of sale after discharging liabilities and $192,000 is held in a controlled monies account under interlocutory orders made by Gzell J on 4 May 2011.
Stated shortly, the plaintiff claims that he has not been repaid $130,000 or $32,027 by the Family Trust and that the trust is accountable to him, and the defendant is accountable to the Family Trust for her dealings with the property, including receiving rent and selling the property. There are ancillary claims relating to the appointment of a new trustee, and other claims.
The remedies claimed by the plaintiff would require the defendant to transfer the proceeds of the sale to a new trustee to be appointed by the court, with an accounting and just allowances for her dealings with the property; and there are several alternative claims for equitable remedies. The conjectural new trustee should pay the plaintiff's claims before distributing surplus proceeds of the sale to beneficiaries.
There were further claims about alleged loans to the plaintiff and her husband of $30,000 and $50,000 to buy houses which they later sold without repaying the loans. The plaintiff's counsel told me that all the passages in the Statement of Claim which deal with claims for $30,000 and $50,000 are not pressed; these are paragraphs 26 to 31 and claim 15, which I will strike out.
Important contextual facts, not in the pleadings and not disputed for the purpose of this application, are that the plaintiff became bankrupt on 15 November 2004 on his own application, that Mr A H J Wily was appointed trustee in bankruptcy, that Mr Wily executed a deed of release on 16 June 2006 the parties to which were Mr Wily as bankruptcy trustee, the defendant and the company, under which the defendant and the company paid significant sums to Mr Wily and he gave releases. The plaintiff was not a party to the deed of release. The bankruptcy trustee was fully able to deal with the plaintiff's property at that time, and the later discharge from bankruptcy does not affect this.
The bankruptcy was annulled on 20 October 2008 pursuant to the Bankruptcy Act 1966 (Cth) s 74(5). Acts done by the trustee in bankruptcy before the annulment are valid, and any remaining property reverted to the bankrupt: see s 74(6). The plaintiff did not apply to the Federal Court to set aside the deed of release or to deal in any way with the bankruptcy trustee's activities; see s 178.
The plaintiff commenced these proceedings by summons on 2 May 2011. Within a few days Gzell J heard the application for interlocutory restraint. The plaintiff filed his Statement of Claim on 10 June 2011. The defendant applied by Notice of Motion on 19 July 2011 for orders including dismissal of the proceedings. The Notice of Motion was amended on 17 August 2011 and added a claim for security for costs under UCPR 42.21. In my view the application for security for costs was made appropriately promptly. Three years have since passed the bankruptcy annulment and this does not suggest urgency. The defendant has not filed a Defence; I would have preferred to see her Defence but it is appropriate to dispose of the security for costs application at this early stage.
The defendant did not proceed with claim 1 in the Notice of Motion which asked that the proceedings be dismissed, or with claims 3 and 4 dealing with some interlocutory matters, or with claim 5 which was resolved by agreement. The defendant pressed claim 6 for security for costs. The principal debate related to claim 2 which asks that many paragraphs in the Statement of Claim be struck out under UCPR 14.28. Some of these paragraphs deal with the plaintiff's claim that there were breaches of trust in the sale and that the defendant incurred liability to the Family Trust; the defendant did not pursue this.
Statement of Claim paragraphs 7, 8(b) and 24(c) and claim 9 relate to plaintiff's claim that he advanced $130,000 for the purchase of the William Street property. Statement of Claim paragraphs 9, 10, 24(b) and claim 8 relate to the plaintiff's claim to have expended $37,027 on repairs and renovations.
The plaintiff's standing in these claims is personal in that they arise from his own dealings with the Family Trust: and not from his being a beneficiary or object of the trust. His standing in the claims about dealings with trust property is different; he did not have a vested interest in trust assets, as there has not been a discretionary decision allocating some interest to him. He makes these claims in a representative capacity on behalf of all objects of the trust potentially interested. Thought should be given to whether he should sue as representative of the whole class other than the defendant, or should ask the Court to appoint him to represent the class.
According to their terms, the plaintiff's claims with respect to $37,027 and $130,000 are claimable, if against anybody, against the company and against the conjectural new trustee. They were claimable by the plaintiff and by no one else if he had not become bankrupt, and they were assets in the bankruptcy with which the bankruptcy trustee could deal, and for which he could give releases. When I asked the plaintiff's counsel how the obligation to pay $37,027 could be regarded as an obligation of the defendant he said that the plaintiff seeks a declaration that the new trustee of the discretionary trust, whom the court is to appoint, will be indebted to the plaintiff in respect of this obligation, that this will have an effect on the quantum of the trust assets, and in this way it affects the interests of the defendant; further, the plaintiff seeks orders that the defendant give equitable compensation to the new trustee and give an account of profits as in claims 6 and 7.
In substance the defendant's position is that having regard to the terms of the deed of release, these two claims are not reasonably arguable and should be struck out for that reason.
In the deed of release a number of recitals under the heading "Background" state that the plaintiff and the defendant were beneficiaries as joint tenants in equal shares of the estate of their late mother Joan Roberta Donald, and that the estate included a family home at Bondi and a quarter interest in a house at Double Bay. (This is not the investment property in William Street.) Recitals refer to some dealings with interests in estate properties, to some dealings, claims and controversies relating to those properties, and the willingness of the defendant to pay sums to the bankruptcy trustee representing what she contended was the plaintiff's interest in the Double Bay house ($198,658.96) and their late mother's share in the family home at Bondi ($137,128.27, total $335,787.43).
The recitals state that the plaintiff and the defendant as beneficiaries in the estate of their late mother take the assets of the estate in equal shares: and then go on to refer to assets of the estate, a house property in Bondi, which was the family home, and a quarter interest in a house property in Double Bay. Recitals then refer to transfers by the plaintiff to the defendant on 18 May 2005 (during the bankruptcy) of his shares in those properties for valuable consideration. That the bankruptcy trustee claimed that the transfer of the plaintiff's interest in the Double Bay house was voidable and asked the defendant to pay him a sum in respect of it, but after obtaining an appraisal of the Bondi property believed that there was no equity available in it, and for that reason had not requested the defendant to pay money in respect of it (recitals 7 and 10). That to protect her reputation the defendant was willing to pay money to the bankruptcy trustee in respect of each of these two properties and the monies payable total $335,287 (recitals 11 and 16). That the Family Trust was indebted to the deceased's estate for $37,027, and the defendant "... has offered and the Trustee has accepted the offer that [she] forward payment to the trustee of the Bankrupt's share of the debt owed to the Estate by the Jo Donald Trust ($18,513.50)." Then by recital 15 the company agreed to pay the trustee "in relation to the debt owed to the Estate any other matter related to or in any way connected with dealings with the matters recited herein."
Recitals 14, 15 and 16 are in the following terms:
14. The Jo Donald Trust is indebted to the Estate in the amount of $37,027 in respect of the purchase by the Jo Donald Trust of the Double Bay Unit. Donald has offered and the Trustee has accepted the offer that Donald forward payment to the Trustee of the Bankrupt's share of the debt owed to the Estate by the Jo Donald Trust ($18.513.50).
15. Without admission of any liability and in consideration of the release hereinafter contained Jo Donald Nominees agrees to pay to the Trustee the sum of $18,513.50 in relation to the debt owed to the Estate and any other matter related to or in any way connected with the matters recited herein.
16. Without admission of any liability and in consideration of the release hereinafter contained Donald agrees to pay the Trustee the sum of $335,787.43 in relation to the Bondi Property and the Double Bay Property and any other matter related to or in any way connected with the matters recited herein.
In recital 14 the sum of $37,027 is treated as debt owed to the deceased estate, and the recital speaks as if the Family Trust should pay to the estate the whole of that amount. If the Family Trust did that the plaintiff would have been entitled to a half share under the will, and the plaintiff would have been obliged to pay that half share to the bankruptcy trustee as after-acquired property. The sum of $18,513.50 which the company was to pay to the bankruptcy trustee represented payment of what the plaintiff was entitled to as his share of what the estate received.
In the operative parts clause 2.1 acknowledges payment of $335,787.43 by the defendant and $18,513.50 by the company.
The release is in the following terms:
3. Trustee releases Donald and Jo Donald Nominees
3.1 Release
The Trustee releases and discharges Donald and Jo Donald Nominees from all actions, suits, claims, demands, causes of action, legal, equitable, under statute and otherwise, costs and expenses and other liabilities of any nature (whether or not the parties were or could have been aware of them) which the Trustee:
(a) now has;
(b) at any time had;
(c) may have; or
(d) but for this deed, could or might have had,
against Donald and/or Jo Donald Nominees in relation to the Assets or the facts and circumstances recited in this deed or the allegations or circumstances arising out of or in any way connected or related to the Assets or the facts and the circumstances recited in this deed, or anything in anyway related to them.
"Assets " is defined in clause 1.1:
" Assets" means and includes:
(a) all property of the Bankrupt which was transferred to or received by:
(i) Donald;
(ii) Jo Donald Nominees; and/or
(iii) Jo Donald Trust,
in or during the period 5 years before 15 November 2005.
(b) real property situate at and identified as follows:
(i) 20 Forest Road, Double Bay, New South Wales; ("Double Bay Property");
(ii) 29 Murriverie Road, Bondi, New South Wales; ("Bondi Property");and
(iii) unit 1 of 20 William Street, Double Bay, New South Wales; ("Double Bay Unit")
The definition of "Assets" includes properties which were part of the deceased estate and also the Double Bay unit which was not. The deed of release deals with it separately from those assets. That definition is not limited to real property and it is not limited to dealings with assets of the deceased estate.
The operative parts also include:
5. Bar to further proceedings
This deed may be pleaded as a full and complete defence by either party to any action, suit, or proceedings commenced, continued or taken by the other party or on its behalf in relation to any of the matters referred to in this deed.
In clause 10 there are acknowledgements including these:
(a) The parties acknowledge that they enter into this deed fully and voluntarily on their own information and investigation. Each party to this deed acknowledges that it is aware that it or its advisers, agents or lawyers may discover facts different from or in addition to the facts that they now know or believe to be true with respect to the subject matter of this deed and that it is their intention to, and they do, fully, finally, absolutely and forever settle according to the provisions of this deed any and all actions, suits, liabilities, claims, disputes, and differences which now exist, or may exist or have ever existed between them relating in any way to the matters the subject of this deed.
(b) For the avoidance of doubt, the Trustee acknowledges that Donald retains the Assets or the proceeds of sale of the Assets and the Trustee has no claim, right, title or interest in or to the Assets or the proceeds of sale of the Assets.
A claim recognisably similar to the claim to $37,027, down to the amount, is referred to in the deed of release, but it does not at all take the same form as the plaintiff puts forward now. There is no express reference in the deed to a claim which could be the claim for $130,000 which the plaintiff now makes. If any such claim existed, it was then the property of the trustee in bankruptcy, and he was capable of giving a release in respect of it.
Defendant's counsel contended that the terms of release clause 3.1 are sufficiently wide to include release of any claim in respect of funding the purchase of the William Street investment property. He contended that having regard to the language of clause 3.1 it is not reasonably arguable that the release did not extend to the claim now made.
Counsel for the plaintiff observed that these claims are personal choses in action, and accepted that they were vested in the bankruptcy trustee on bankruptcy. He contended that arguably they are not caught by the deed of release and that the issues relating to them should go to trial. He pointed out, correctly, that if arguably they are caught by the deed the claim should go to trial.
According to his counsel's contentions, the plaintiff's claim is for a declaration that the new trustee is liable to the plaintiff and should bring these sums into account when accounting for trust assets in its possession as a sum which should be credited to the plaintiff before any sum is distributed all to beneficiaries. The claims are choses in action and on the true construction are not caught by the definition of "Assets". That definition does not extend to choses in action vested in the plaintiff against the trustee of the discretionary trust or against the conjectural new trustee. Counsel contended that the plaintiff's claims against the trust do not fit within any of the categories in the definition and in clause 3.1. These choses in action are not referred to in the recitals and they are not defined to be "Assets". They do not arise out of facts or circumstances recited in the deed, and are not connected with facts or circumstances recited in the deed. The definition does not extend to include a chose in action vested in the plaintiff and held against the trustee. That asset was not "transferred to or received by" any of the entities named in any of the workings of the definition of "Assets".
Counsel referred to the terms of release clause 3.1 and the references to claims which the bankruptcy trustee had, claims in relation to "Assets" as defined, to the facts recited and to related facts. He contended that the choses in action which the plaintiff alleges do not fit within any of these categories; that the claims are not in relation to an asset as defined and they are not based on facts recited. Although words of broad import are used, choses in action are not defined to be assets, are not referred to in recitals and he contended, do not arise out of and are not connected with assets or with circumstances recited in the deed. He contended to the effect that the claims now made were not under consideration when the deed was prepared, and are not reflected in its terms, and for this reason they are not caught by the deed.
Counsel also contended that these transactions and the facts and circumstances relating to them are material facts of the case relating to breaches of trust and dealings by the defendant with the company, and that this is a discretionary consideration against striking out the passages: that the facts about these claims should not be taken out of consideration.
Counsel contended that if there is any ambiguity the Contra Proferentem rule applies against the defendant, in that evidence shows that Clayton Utz, who are the solicitors for the defendant, were then acting for her. I do not accept this as there is no substantial evidence showing who was the profferor of the deed.
The defendant's counsel contended that both claims are picked up by clause 3.1.
The dealings in the recitals are different dealings to the dealings alleged by the plaintiff in these proceedings, and underlying recital 14 is a view of the facts in which the company became indebted to the deceased or to her estate for $37,027 in some way connected with the purchase by the Family Trust of the Double Bay unit. Also underlying recital 14 is an assumption that it was for the Family Trust to pay to the deceased's estate $37,027, and that half of that payment would go to the plaintiff as his share in the estate assets and become an asset in the bankruptcy. The company agreed to pay half that amount to the bankruptcy trustee.
In the definition of "Assets", paragraph (a) refers to all property of the plaintiff "... which was transferred to or received by [the defendant, the company or the Family Trust] during the period 5 years before 15 November 2005". By its plain language paragraph (a) includes all money which the plaintiff paid to the defendant or to the company in that period. The plaintiff's claims in the Statement of Claim paragraphs 7 and 8 clearly fall within the meaning of advances, are advances to the Family Trust, and they are within para (a) of the definition of "Assets".
The language of the deed of release at two places goes to lengths to establish that the effect of the release is not limited to transactions referred to in recitals, and is not limited to transactions or claims of which the parties had knowledge at the date of the deed. This wide reach should be understood with the recitals according to which the defendant and the Family Trust were paying the bankruptcy trustee much more money than he had claimed. The language of the release in clause 3.1 is extremely general. Extension of the release to claims whether known or unknown is spelt out. The acknowledgement in clause 10(b) is also quite general and extends to anything falling within the release.
I accept that the plaintiff's claims can be categorised as choses in action which the plaintiff held against the trustee of the Family Trust, and claims to be entitled to bring into account against the conjectural new trustee. Notwithstanding that this categorisation is available, it is no less correct that the definition of "Assets" extends to the payments allegedly made to the company, and the broad language of the release in clause 3.1 extends to actions, suits, claims, demands, (and so forth) which have the stated wide range of relations to those payments.
Although the claim relating to $130,000 is not referred to in the deed at any place, that sum and the claim for it fall within the definition of "Assets" in the deed and within the terms of the release in clause 3.1. Those terms, and other passages in the deed, confirm the generality of the release granted, and plainly and unarguably extend to that payment.
Notwithstanding that the recitals show a different concept of the dealings with $37,027 to that put forward by the plaintiff in these proceedings, there is in my opinion no room for doubt or argument that the release extends to the plaintiff's claims for that amount. The company was protected by the release in relation to those payments, and was not accountable for them when the William Street property was transferred: and the defendant was also protected.
In my opinion, it is altogether clear that these claims are not maintainable and cannot succeed. Passages in the Statement of Claim which relate to them are not relevant to the alleged breaches of trust. It was not a breach of trust for the company not to account for them when it transferred the investment property to the defendant, because they had been released. Accordingly I propose to strike out these passages.
The plaintiff is not resident in Australia and in such a case it is usual to order security for costs if a timely application is made. The power is discretionary. The plaintiff's counsel made an open offer to provide security for $10,000 and offered the plaintiff's undertaking to the Court not to contest registration in Hong Kong of any costs order made in these proceedings; and not to seek security for costs to be provided by the defendant in registration proceedings in Hong Kong. Debate related rather to the sufficiency of this offer than to whether in principle security should be ordered.
The plaintiff does not claim to have assets within Australia relevant to the application for security for costs. The plaintiff gave evidence which shows that his residence and usual activities are situated in Hong Kong. In the Summons he did not give any address for himself, although (naturally) the prescribed form requires one. In the Statement of Claim he gave an address in care of his solicitors in Sydney. Ms Drayton, a solicitor employed by the plaintiff's solicitors, said in evidence "17. I am advised and verily believe that the plaintiff resides at Apartment 6A, House No 1, No 1 Plantation Road, The Peak, Hong Kong." The plaintiff in an affidavit of 6 September 2011 sworn in Hong Kong, again gave his address in care of his solicitors in Sydney and said:
1. I am presently in Hong Kong on an Investment visa.
2. In order to maintain my status on an investment visa, I am currently required to maintain US$1,000,000.00 in cash or assets available in Hong Kong at any one time. If I do not, I would be in breach of my Investment Visa and risk my status.
3. My visa is audited every two years. My next audit is January 2012.
4. There are presently no judgments outstanding against me nor are there any court cases of any kind pending against me. I have no debt whatsoever.
5. I have no intention of jeopardising my position in Hong Kong and becoming involved in any litigation in Hong Kong and accordingly I would not resist the enforcement in Hong Kong of any costs order made in the Supreme Court of New South Wales in these proceedings and which order is not stayed by the Supreme Court of New South Wales.
This affidavit does not aver that he actually does maintain US$1,000,000 available in Hong Kong.
Mr Levitt the plaintiff's solicitor in an affidavit of 8 November 2011 gave evidence of the plaintiff's circumstances and Mr Levitt's contacts with him, including meeting him on three occasions during a week Mr Levitt spent in Hong Kong at the end of March 2011. Mr Levitt made various observations which suggest that the plaintiff is well known and established in Hong Kong, where he has a business office, is a member of the Jockey Club and resides in an impressive apartment at the address at The Peak given by Ms Drayton.
In the plaintiff's affidavit of 8 November 2011 sworn in Hong Kong, the plaintiff again gave his address in care of his solicitors in Sydney. He said in that affidavit that he lived in rented premises for which he gave the same address on The Peak; that he has no liabilities other than day-to-day living expenses; that he works as a property consultant in Hong Kong; and he produced a recent bank statement from HSBC Banking in Hong Kong which shows a credit balance of HKD$1,649,482.44, a credit balance of US$200,004.47 and other small balances, three in other currencies. Without attempting precision this indicates bank deposits worth in the order of AUD$400,000.
I infer that apart from the bank deposits he does not have significant assets available in Hong Kong. Extracts from the plaintiff's Australian passport (Ex 3) include an employment visa with permission to remain in Hong Kong until 4 January 2012. Evidence shows that the plaintiff is established in business in Hong Kong, has been present there for at least five years, his presence there depends on obtaining visas from time to time, and his assets there are principally bank deposits of significant value, but readily transmissible to other places. Bank deposits are not reliable means of enforcing judgments because they are readily transmissible. Giving his solicitor's address was not an attempt at concealment. It must be well known to the defendant that he resides in Hong Kong.
The evidence suggests that the defendant is or has in recent years also been resident in Hong Kong, but she is not approaching the Court for any remedy.
I was referred to several cases where a modest amount of security has been ordered on the view that it was sufficient to order security for enough to pay costs of registration of a judgment in the court of the jurisdiction where the defendant resided. Legislative provisions for registration of New South Wales judgments in Hong Kong follow a well known and relatively simple pattern, generally similar to registration in New Zealand. These relate only to Hong Kong and not to other parts of China. The first such case was Connop v Verena [1984] 1 NSWLR 71 (Rath J). The plaintiffs in that case owned real property in New Zealand, a thirty-acre farm, and also owned a share in another property being developed as an orchard with greenhouses and a residence. They also owned a tractor and a nursery business. Their assets in New South Wales were meagre. I observe that their assets in New Zealand were relatively readily accessible in execution process.
In Maxim's Caterers Ltd v Magnona Pty Ltd (No 1) [2010] FCA 450, Jagot J ordered security for costs limited to costs of enforcement in Hong Kong against a Hong Kong company, which has no assets in Australia and was resisting a trademark registration in Australia. The plaintiff had substantial assets in Hong Kong: see para [13].
In Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2011] NSWCA 84 the Court of Appeal for reasons given by a Young JA refused leave to appeal; security had been ordered, although a potential costs order could be registered readily in South Africa where the plaintiff operated, but South African legislation appeared to impede enforcement. At paragraph [32] Young JA said "There are a series of cases which suggest that ordinarily, and that is probably a word that must not be forgotten, where one has an application for security for costs based on the fact that the applicant is outside New South Wales, the security for costs that ought to be ordered is the additional costs of realising the costs order in a foreign country as opposed to Australia". His Honour referred to several cases, including Maxime's . To my observation the Court of Appeal did not endorse an ordinary rule, and there was no occasion to do so as leave was refused.
As such decisions are discretionary, to dispose of them by applying an ordinary rule would depart from the Court's duty to exercise its discretion on the facts of the instant case.
In Re SCW (Express Detailing) Pty Ltd [2011] NSWSC 688, White J ordered security for costs against a plaintiff who claimed to be resident in Hong Kong and did not adopt the limitation. In his Honour's view it was not clear that Hong Kong was still the plaintiff's residence or that he had assets there: see para [34].
The plaintiff has resided in Hong Kong and is established in employment there; his residency depends on reviews by immigration authorities approximately every two years: he is not a permanent resident; he is an Australian citizen, and went to live in Hong Kong after taking advantage of the bankruptcy law here. He does not claim to own real property, and his assets in Hong Kong of which evidence speaks, while quite sufficient to give comfort to any potential costs order, are highly mobile bank accounts. In my judgment the defendant would not be adequately protected for enforcement of a costs order outside Australia by merely being provided with funds to register judgment in Hong Kong. In the plaintiff's circumstances, the defendant can only be protected by ordering a substantial sum as security.
The defendant's solicitor gave evidence of his estimate of the costs which would be awarded to the defendant if successful at $98,250.86. An estimate in advance of the costs of proceedings which are yet to be contested and go to trial is subject to many contingencies. Precision is not attainable. I would not attempt to protect the defendant completely by my order. In my judgment security should be given in the sum of $70,000, of which $35,000 should be provided in 14 days, and a further $35,000 should be provided 14 days after a date is appointed for hearing these proceedings.
Upon the defendant's Notice of Motion of 6 August 2011 (as amended on 17 August 2011):
1. Dismiss claims 1, 3, 4 and 5.
2. Upon claim 2
(a) strike out claim 15 and paragraphs 26 to 31 inclusive of the Statement of Claim.
(b) strike out claim 8 and paragraphs 9, 10 and 24(b) of the Statement of Claim.
(c) strike out claim 9 and paragraphs 7, 8(b) and 24(c) of the Statement of Claim.
3. Upon claim 6, order that the plaintiff give security for the defendant's costs by deposit of funds in Court or otherwise in a manner approved by the Registrar: that security for $35,000 be given within 14 days of this order and that security for a further $35,000 be given within 14 days after the date is appointed for hearing these proceedings: and that in default of compliance these proceedings be stayed until further order.
4. Liberty to apply with respect to security for costs.
5. Order that
(a) the plaintiff pay the defendant's costs of the Notice of Motion so far as they relate to claim 2.
(b) that each party pay and bear his or her own costs so far as they relate to claims 1, 3, 4 and 5.
(c) that the costs of each party so far as they relate to claim 6 be costs of the proceedings.
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Decision last updated: 18 November 2011
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