China v Smith
[2013] WASC 31
CHINA -v- SMITH [2013] WASC 31
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 31 | |
| Case No: | CIV:2583/2009 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 5/02/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Order for security for the defendants' costs | ||
| B | |||
| PDF Version |
| Parties: | PAUL CHINA BENJAMIN CHINA CHINA BROTHERS PRODUCTION CO PTY LTD JAMES SMITH (ALSO KNOWN AS JAMES WITH) TIRED HORSES FILMS HOLDINGS PTY LTD TRI-US ENTERTAINMENT HOLDINGS PTY LTD |
Catchwords: | Security for costs sought by the defendant Quantum Timing of provision of bank guarantee Turns on own facts |
Legislation: | Nil |
Case References: | Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
BENJAMIN CHINA
Second Plaintiff
CHINA BROTHERS PRODUCTION CO PTY LTD
Third Plaintiff
AND
JAMES SMITH (ALSO KNOWN AS JAMES WITH)
TIRED HORSES FILMS HOLDINGS PTY LTD
TRI-US ENTERTAINMENT HOLDINGS PTY LTD
Defendants
Catchwords:
Security for costs sought by the defendant - Quantum - Timing of provision of bank guarantee - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Order for security for the defendants' costs
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
Defendants : No appearance
Solicitors:
First Plaintiff : Lavan Legal
Second Plaintiff : Lavan Legal
Third Plaintiff : Lavan Legal
Defendants : Melvyn Levitan
Case(s) referred to in judgment(s):
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118
(Page 3)
1 KENNETH MARTIN J: By programming order which I made on 2 November 2012, the parties seek that I determine, on the papers, an amount payable by way of security to secure the defendants' trial costs.
2 This consolidated action has been case managed by me in the CMC List since mid 2009. It arose then in urgent circumstances where freezing orders were obtained by the plaintiffs. One attempt to proceed with a trial needed to be aborted in 2010.
3 Since then each side has changed their solicitors.
4 There have been unsuccessful past efforts at a mediated resolution. I have recently raised that issue with the newly appointed Queensland-based solicitors for the plaintiffs at a recent directions hearing. There is, as I perceive it, a general amenability to a further mediation being convened before a trial (which is now estimated to be likely to run over 13 days) happens.
5 In that background the parties filed written submissions as to the quantum of security as follows:
(a) Defendants' submissions of 7 November 2012 and a draft bill of estimated costs, seeking $165,140, by a payment of that amount into Court. The amount sought has then been revised upwards to $179,557. The application is supported by the affidavit of the defendants, sworn 27 April 2012. Attachment S6 is the defendants' estimated bill, predicated (item 12) on it seems a 14 day trial.
(b) Plaintiffs' written submissions of 21 November 2012. The plaintiffs' position is supported by the affidavit sworn by the plaintiffs' solicitor, Mr Kenneth Philp, also of 21 November 2012. Reference is further made to an affidavit of Shaun China (father of Paul and Benjamin China who are the first and second plaintiffs in the action) affirmed on 4 July 2012 and by which he offers his personal guarantee in the form set out as document A to his application.
(c) Defendants' reply submissions of 23 November 2012.
6 The stance by the defendants' submissions does not concede a security order is appropriate, but otherwise adopts a pragmatic line of offering no substantive, in principle, opposition to a security order being made against the third plaintiff (China Brothers Production Co Pty Ltd).
(Page 4)
- Nor is there now any affirmative opposition to any security that is provided by the corporate plaintiff being given by way of bank guarantee. The principal areas of contention is as to the quantum of the security, particularly that a more realistic order would be at a far lower amount.
7 In particular, I refer to attachment KP-1 which is a suggested minute of consent order emailed to the defendants' solicitor on 29 October 2012 mentioning the sum of only $59,255 but with scope to apply to increase that sum.
8 I am of the view that an order for some level of security is appropriate. The usual amount of security involves an exercise of discretion by the Court and is to be determined by what the Court considered just in the circumstances: see Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 [27]. Security does not need to be set at a level that delivers a full indemnity.
9 Having case managed this slow moving action since 2009, I am well aware of the underlying issues likely to be raised at the trial concerning the defendants' alleged wrongful expenditure of moneys raised by the plaintiffs in order to make a film (to be called 'All the Tired Horses') and which the first-named defendant was to direct and play a part as a leading character. The film has not been made.
10 Taking all matters raised in the affidavits into account, I am of the view that an order for security by the corporate plaintiff by bank guarantee for the defendants' costs should issue, but in the amount of $100,000. The first-named defendant, if successful, will clearly hold personal rights of action for his costs against Paul and Benjamin China and that is a consideration.
11 The timing of the provision of this security as to costs, bearing in mind a further mediation is likely, now needs to be addressed.
12 My view is that a first tier of security by bank guarantee should just be prescribed within 60 days and in the amount of $20,000.
13 If the matter is not resolved by mediation and needs to proceed to a 13 or 14 day trial, then a second tier of further security in the amount of $80,000, should be provided by bank guarantee and no later than 60 days following the unsuccessful mediation. If either tier of security is not provided within that timeframe then the action should be stayed, but there would be liberty to apply to discharge that stay for a convincing reason.
(Page 5)
14 I will provide these reasons to the parties and the solicitors for the defendants should prepare a minute of orders to that end and finalise the minute with the plaintiffs' solicitors. I will hear the parties at the next directions hearing fixed for 7 February 2013 if any issues remain unresolved.
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