CEZANNE Holdings Pty Ltd v WILLIAMS

[2002] WADC 20

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CEZANNE HOLDINGS PTY LTD -v- WILLIAMS [2002] WADC 20

CORAM:   REGISTRAR KINGSLEY

HEARD:   10 JANUARY 2002

DELIVERED          :   5 FEBRUARY 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 - Security for costs - Security for costs of trial previously ordered - Defendants application for increase in amount of security

Legislation:

Nil

Result:

Application allowed in part

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):

Nil

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  The plaintiff has previously been ordered to provide security for costs totalling $33,000.  The defendant now seeks to increase that security by a further $31,030.  The defendant has provided a draft Bill of Costs showing a total of $64,030 for costs of the trial.

2. The action concerns a blasting operation in a quarry.  The plaintiff sues as lessee of the quarry from which Toodyay Stone was to be extracted.  There have been two other actions on the same subject matter, each of which was brought in the name of a different plaintiff, although each was associated with the current plaintiff. 

3. There is ample authority to support the proposition that a court has a general jurisdiction to order a plaintiff to give further security for costs (see the authorities mentioned at footnote 58, p 294, Colbran S., Security for Costs, Longman Professionals, Melbourne 1993).

4. The issues, which are conveniently set out in the plaintiffs and defendant's statement of issues of fact and law, can be summarised into three headings:

   (a)the standing of the plaintiff to sue;

   (b)the dealings between the plaintiff and defendant prior to blasting; and

   (c)the blasting itself.

5. It is the defendant's estimate that ten days will need to be set aside for trial, for the plaintiff, five days are still regarded as appropriate.

6. I am informed from the Bar Table by plaintiffs' counsel that they will be calling three expert and four lay witnesses.   For the defendant I am informed by defendant's counsel that there are two experts; with one expert's report being 23 pages long and the second expert's report being 8 pages long.  There will also be six lay witnesses for the defendant.

7. It is clear that the defendant is putting everything into issue, and bearing in mind the previous actions, that is perhaps understandable.  Having regard to the number of issues, the witnesses to prove those issues and the likely emphasis on experts and their reports I am of the opinion that five days is insufficient.  Not all issues raised by the defendant are substantial.  Of the issues raised in par 4 hereof it will be the issue of the blasting that will occupy most time.  Bearing in mind the number of experts and likely lay witnesses I am of the opinion that ten days is excessive.  I am of the opinion that seven days is a more likely trial length.

8. I have considered the defendant's draft Bill of Costs.  Having regard to the involvement of Mr Macknay throughout this action I infer that Mr Macknay will be counsel at trial.  The amount claimed at Item 1 of the draft Bill is reasonable where the maximum is allowable is $27,000.  Paragraph 3 of the draft Bill ought be reduced by one third to reflect the fact that whilst there are a number of issues in dispute the action is not unduly complex and the fact that the solicitor is acting as counsel I have reduced the hours of the solicitor attending trial by one hour.

9. That being the case the total cost of trial, including disbursements which I have allowed as stated is $46,050.  An amount of $24,500 has already been allowed for trial.  Accordingly an additional $21,550 is to be provided by way of security.

10. I have not heard submissions on the manner of providing the additional security.  I note that previous orders for security have included a Bank guarantee.  Unless any part objects I order that the additional security of $21,550 be given by Bank guarantee or such other security as agreed between the parties.

11. As for costs I am of the opinion this is a continuation of the previous orders for security and therefore the costs ought be in the cause of the action.