CHINA -v- SMITH [2013] WASC 31

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 31
Case No:	CIV:2583/2009	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	5/02/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Order for security for the defendants' costs
Category:	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

CITATION : CHINA -v- SMITH [2013] WASC 31 CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 5 FEBRUARY 2013 FILE NO/S : CIV 2583 of 2009 BETWEEN : PAUL CHINA

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…

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.

Keep reading for free

Create a free CaseChat account to read China v Smith and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] WASC 31
Decision Date

CaseChat Overview and Summary

This case involved an application for security for costs by the defendants, James Smith, Tired Horses Films Holdings Pty Ltd, and Tri-US Entertainment Holdings Pty Ltd, against the plaintiffs, Paul China, Benjamin China, and China Brothers Production Co Pty Ltd. The matter was heard on the papers by Justice Kenneth Martin in the Supreme Court of Western Australia. The court was required to determine the appropriate amount of security for the defendants' trial costs, taking into account the nature of the dispute, the length of the anticipated trial, and the financial circumstances of the parties. The plaintiffs, who were filmmakers, alleged that the defendants had wrongfully expended money raised for a film project. The defendants sought security for costs in the amount of $179,557, while the plaintiffs proposed a significantly lower amount of $59,255. The court held that an order for some level of security was appropriate and exercised its discretion to determine the amount of security. The court considered the nature of the underlying issues, the length of the anticipated trial, and the financial circumstances of the parties. The court ordered that the corporate plaintiff provide a bank guarantee for security in the amount of $100,000, to be paid in two tiers. The first tier of $20,000 was to be provided within 60 days, and the second tier of $80,000 was to be provided within 60 days following an unsuccessful mediation, if the matter proceeded to trial. If either tier of security was not provided within the specified timeframe, the action would be stayed, but there would be liberty to apply to discharge that stay for a convincing reason. The court's decision was based on the principle that security for costs is not intended to provide a full indemnity, and the amount of security should be determined by what the court considered just in the circumstances.

Orders