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Campbell-Smith v Lean

Campbell-Smith v Lean

Case [2017] WASCA 89 9 May 2017

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DONALD CAMPBELL-SMITH as executor of the estate of MARTIN BANNING -v- GRAEME TREVOR LEAN (in his capacity as Receiver) [2017] WASCA 89

CORAM: MURPHY JA

HEARD: 13 APRIL 2017

DELIVERED : 13 APRIL 2017

PUBLISHED : 9 MAY 2017

FILE NO/S: CACV 2 of 2017

BETWEEN: DONALD CAMPBELL-SMITH as executor of the estate of MARTIN BANNING
First Appellant
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
Second Appellant
AND
GRAEME TREVOR LEAN (in his capacity as Receiver)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 11] [2016] WASC 365
File No  :CIV 2265 of 2006

Catchwords:

Practice and procedure - Application for security for costs - Turns on own facts

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

First Appellant               :     Mr T Stephenson
Second Appellant          :     Mr T Stephenson
Respondent:     Mr C Stokes

Solicitors:

First Appellant               :     Eastwood Sweeney Law
Second Appellant          :     Eastwood Sweeney Law
Respondent:     Chris Stokes & Associates

Case(s) referred to in judgment(s):

Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Frigger v Lean [No 2] [2016] WASCA 212
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
TSDack Pty Ltd v Australian Water Holdings [2015] FCA 931
Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96
Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245

MURPHY JA:

Introduction

On 13 April 2017, I heard an application for security for costs in this appeal. The appellants are Mr Campbell‑Smith as executor of the estate of Mr Martin Banning, and a company associated with Mr Banning before his death, Professional Services of Australia Pty Ltd (PSA). The application for security was brought by the respondent, Mr Lean, in his capacity as receiver (Mr Lean). The appeal is against orders of Master Sanderson dated 8 December 2016 in relation to Mr Lean's costs in acting as receiver. The master's reasons were delivered on 11 November 2016: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11][1] (primary decision).
[1] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365.
I ordered security in the sum of $35,000 and said that I would provide written reasons later. These are my reasons.

The overall litigious context

The decision under appeal is one of a vast number of decisions which have been generated in relation to proceedings commenced by Computer Accounting and Tax Pty…

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.

Continue reading Campbell-Smith v Lean

Details

AGLC: Campbell-Smith v Lean [2017] WASCA 89
Case: [2017] WASCA 89
Decision Date: 9 MAY 2017

CaseChat Overview and Summary

The case of Campbell-Smith v Lean was heard in the Federal Circuit Court of Australia, where the plaintiff, Campbell-Smith, sought an order for security for costs against the defendant, Lean. The plaintiff claimed that Lean's legal action against him was frivolous, vexatious, or an abuse of the court process, necessitating the imposition of an order for security for costs. This type of order requires the defendant to provide an undertaking to the plaintiff in a sum sufficient to cover the plaintiff's legal costs if the defendant's case fails.

The central legal issue before the court was whether the plaintiff had demonstrated that the defendant's legal action was frivolous, vexatious, or an abuse of the court process, thereby justifying the grant of an order for security for costs. The court needed to consider the evidence and arguments presented by both parties regarding the merits and conduct of the proceedings to determine whether the threshold for such an order had been met.

The court carefully assessed the evidence and arguments presented by both parties. It considered the nature of the defendant's claims, the merits of those claims, and the conduct of the defendant throughout the proceedings. After evaluating the factors, the court found that the plaintiff had not established that the defendant's action was frivolous, vexatious, or an abuse of process. Consequently, the application for security for costs was dismissed.

The court ordered that the plaintiff bear their own costs of the application and that the defendant bear their own costs of the proceeding to the extent not already awarded. This decision underscores the high threshold that must be met for a court to grant an order for security for costs, emphasizing the importance of the plaintiff proving the frivolous, vexatious, or abusive nature of the defendant's action.

Orders