CEZANNE Holdings Pty Ltd v WILLIAMS

[2002] WADC 79

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CEZANNE HOLDINGS PTY LTD -v- WILLIAMS [2002] WADC 79

CORAM:   REGISTRAR KINGSLEY

HEARD:   27 MARCH 2002

DELIVERED          :   27 MARCH 2002

FILE NO/S:   CIV 1584 of 1996

BETWEEN:   CEZANNE HOLDINGS PTY LTD (ACN 009 373 871)

Plaintiff

AND

JAMES KENNETH WILLIAMS
Defendant

Catchwords:

Practice - Application to fix time for provision of security

Legislation:

Nil

Result:

Time for provision of security fixed at 30 June 2002

Representation:

Counsel:

Plaintiff:     Mr J R Johnson

Defendant:     Mr A T Macknay

Solicitors:

Plaintiff:     Ilbery Barblett

Defendant:     Deacons

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

Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49

Ekat Pty Ltd v Everdure Pty Ltd (1998) WASC 279

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  On 5 February 2002 I ordered the plaintiff to provide further security for the trial of the actions.  That further security was in the sum of $21,500 and the action was stayed pending compliance.

2. The defendant now seeks to impose a time upon the plaintiff for the provision of security.  Traditionally the Court did not intervene to set any time limit on the provision of security.  The action was simply stayed until the security was paid.

3. However the defendant's counsel submits that the concepts of case management have changed that traditional view and that there is authority for imposing time limits.  Defendant's counsel referred to two cases Ekat Pty Ltd v Everdure Pty Ltd (1998) WASC 279 and Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49. In Ekat Master Ng had ordered in January 1998 that the plaintiff provide the security.  The plaintiff had failed to lodge the required security and stated quite candidly it did not have the means to do so.  The defendant filed an application in July 1998 seeking to dismiss the plaintiff's action for want of prosecution.  Master Sanderson after considering the authorities in relation to striking an action for want of prosecution commented that if he were not to strike the action for want of prosecution and the plaintiff was given an extension of time the file would have been inactive for 12 months.  "Such a delay countenanced by the court is an anathema to case management principles and flies in the face of the clear intent of the rules as expressed by Order 1 Rules A and B."  The Master considered the best course was to provide a springing order to allow the plaintiff another four weeks within which to provide the required security.  In Dallas Development a Master of the Supreme Court had made a springing order for failure to comply with an order for security of costs.  The order for security of costs had been made six months prior to the springing order.  Justice Templeman stated that the springing order had not been sought because the action was not being pursued with due diligence but was sought because security had not been provided in compliance with a court order made six months earlier and no indulgence had been sought from the court.

4. The defendant's application speaks of a reasonably tight time limit on the plaintiff.  A springing order, in my opinion, would be manifestly unfair and premature, particularly regarding the Draconian nature of such an order.  I must bear in mind that the plaintiff has shown a desire to pursue this matter and this not being the first application dealing with security, I note that on each occasion the plaintiff has provided security as ordered.

5. There is some evidence to indicate that the plaintiff is actively pursuing the issue of security.  I accept there may well be formalities to be undertaken which would create some time limits.  I also accept that the defendant is treating this matter seriously and wishes to press the matter on but in my opinion it would not serve the system of justice well to press this matter too quickly.

6. It is appropriate on the authorities that a time limit be fixed and in my opinion 30 June would be an opportune time to require the guarantee to be met.  In my opinion that would give sufficient time for whatever formalities to be set in place.  Accordingly the time for the plaintiff to comply for the provision of security is fixed at on or before 30 June 2002.