Castillejo v Botella

Case [2008] QSC 333

SUPREME COURT OF QUEENSLAND

CITATION:

Castillejo & Ors  v  Botella & Anor [2008] QSC 333

PARTIES:

JOSE MARIA CASTILLEJO
(first plaintiff)
ORIGO INVESTMENTS PTY LTD (ACN 107 326 483)
(second plaintiff)
ORIGO BIOTECH PTY LTD (ACN 107 328 085)
(third plaintiff)
JOMACA 98 SOCIEDAD LIMITADA
(fourth plaintiff)
v
DR JIMMY BOTELLA
(first defendant)
UNIQUEST PTY LTD (ACN 010 529 898)

(second defendant)

FILE NO/S:

BS 7355/08

DIVISION:

Trial Division

PROCEEDING:

Application for security for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2008

JUDGE:

Martin J

ORDER:

The plaintiffs provide security for the defendants’ costs of the proceedings up to and including the first day of trial:1.         

In the amount $250,000; and(a)    

In a form to be determined by the Registrar; and(b)    

Within 21 days of this order.(c)     

In the event that the plaintiffs fail to provide such security within 21 days, the proceeding is stayed until such security is provided.2.         

The plaintiffs pay the defendants’ costs of and incidental to this application to be assessed on the standard basis.3.         

Each party has liberty to apply on two clear days written notice to the others.4.         

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – RESIDENCE OUT OF JURISDICTION  -  ENFORCEABILITY OF JUDGMENT UNDER SERVICE AND EXECUTION OF PROCESS ACT – where plaintiff is impecunious – whether the plaintiff’s impecuniosities was directly attributable to the conduct of the defendants – amount of security which should be ordered.

Corporations Act 2001, s 1335
Uniform Civil Procedure Rules 1999, r 670, r 671, r 672

Connop v Varena Pty Ltd [1984] 1 NSWLR 71
Eastgate Properties Pty Ltd v J Hutchinson Pty Ltd [2005] 2 Qd R 1
Emmanuel Management Pty Ltd (In liq) v Fosters Brewing Group Ltd & Ors [2003] QCA 552
Energy Drilling Inc v Petroz NL (1989) ATPR §40-954
Karam v Mansukhani [2006] QCA 349
Kennedy v Nine Network Australia Pty Ltd  [2008] QSC 134
Logue v Hansen Technologies Ltd (2003) 125 FCR 590
Procon (GB) Ltd v Provincial Building Co Ltd [1984] 2 All ER 368

P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321

COUNSEL:

PG Bickford for the plaintiffs
D Clothier for the defendants

SOLICITORS:

McCullough Robertson Lawyers for the plaintiffs

HWL Ebsworth Lawyers for the defendants

  1. Each defendant seeks an order for security for costs against the plaintiffs.

The plaintiffs

  1. The first plaintiff (Mr Castillejo) is a citizen of Spain. He has no assets within Australia apart from his shares in the second and third defendants which appear to be of negligible value. He does, though, have substantial assets in Spain. Through an affidavit sworn by his solicitor he asserts that his net worth is approximately €70,000,000. That sum is made up of: shares in Jomaca 98 (€72,000,000), a 50% share in a house in Mallorca (€1,500,000), shares in another Spanish company (€8,000,000) and various other…

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Details
AGLC
Castillejo v Botella [2008] QSC 333
Case
[2008] QSC 333
Decision Date

CaseChat Overview and Summary

The case of Castillejo v Botella involved a dispute over costs and security for costs in a proceeding where the plaintiff was impecunious. The case was heard in the Federal Circuit Court of Australia. The defendants sought an order for security for costs, arguing that the plaintiff's impecuniosity was directly attributable to their conduct, and thus they should not be required to provide security. The plaintiff, on the other hand, argued that the defendants' conduct did not cause their impecuniosity and that an order for security would be unjust.

The legal issues the court had to decide included whether the plaintiff's impecuniosity was directly attributable to the defendants' conduct, and if so, whether an order for security for costs was appropriate. The court also had to determine the amount of security that should be ordered if it found that the plaintiff's impecuniosity was not directly attributable to the defendants' conduct. In considering these issues, the court had to balance the plaintiff's right to access to justice with the defendants' right to be protected from unrecoverable costs.

The court found that the plaintiff's impecuniosity was not directly attributable to the defendants' conduct. However, it did find that the plaintiff was impecunious and that an order for security for costs was appropriate. The court ordered the plaintiffs to provide security for the defendants' costs of the proceedings up to and including the first day of trial, in the amount of $250,000, in a form to be determined by the Registrar, and within 21 days of the order. The court also ordered the plaintiffs to pay the defendants' costs of and incidental to this application to be assessed on the standard basis. The court noted that each party had liberty to apply on two clear days written notice to the others.

The court's orders reflect a careful consideration of the legal principles involved in determining security for costs in cases where the plaintiff is impecunious. The court's decision provides guidance for future cases involving similar issues.

Orders

Orders of the court

The plaintiffs provide security for the defendants’ costs of the proceedings up to and including the first day of trial:1.

In the amount $250,000; and(a)

In a form to be determined by the Registrar; and(b)

Within 21 days of this order.(c)

In the event that the plaintiffs fail to provide such security within 21 days, the proceeding is stayed until such security is provided.2.

The plaintiffs pay the defendants’ costs of and incidental to this application to be assessed on the standard basis.3.

Each party has liberty to apply on two clear days written notice to the others.4.

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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