Clifford v Rumsley - [2019] WADC 128

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   CLIFFORD -v- RUMSLEY [2019] WADC 128
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   22 AUGUST 2019
DELIVERED          :   16 SEPTEMBER 2019
FILE NO/S:   CIV BUN 4 of 2017
BETWEEN:   PHILIP GEORGE CLIFFORD
First Plaintiff
SHERAZ PTY LTD
Second Plaintiff
AND
ALAN PHILLIP RUMSLEY
Defendant

Catchwords:

Practice and procedure - Application for security for costs - Basis upon which security can be ordered - Consideration of the strength of the case advanced - Turns on its own facts

Legislation:

Corporations Act 2001 (Cth), s 1335
Legal Profession Act 2008 (WA), s 289, s 291
Supreme Court Rules 1971 (WA), O 25 r 2, r 3

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff	:	In person
Second Plaintiff	:	Mr P Lafferty
Defendant	:	In person

Solicitors:

First Plaintiff	:	Not applicable
Second Plaintiff	:	Armeli & Molony Lawyers
Defendant	:	Not applicable

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

Laundry Coin-Wash Nominees Pty Ltd v Dunlop Olympic Ltd (1985) ATPR 40-584

DEPUTY REGISTRAR HEWITT:

This action was commenced by a writ filed on 16 March 2017 by which the plaintiff, who is a barrister, and a company Sheraz Pty Ltd, sought payment of various monies for the provision of legal services said to have been provided by the first plaintiff at the request of the defendant.
On 25 May 2017 the defendant filed an application for security for costs seeking security in the sum of $40,000 or such sum as the court might think fit. That matter came before me for argument on 5 October 2017 and I delivered my decision on 12 October 2017 ordering the second plaintiff to provide security in the amount of $20,000. That order was appealed and on 20 July 2018 his Honour Judge Birmingham set aside the relevant portion of my decision, that being the order for security, and ordered that the application for security be adjourned sine die. His Honour was also dissatisfied with the quality of the pleading of the case and directed that to be corrected.
Various other applications and activities have since followed and the application for security for costs was relisted before me on 22 August 2019.
The actual order, which was sought by the defendant in regard to security for costs was:
within 14 days of the date of this order the plaintiff's give security for the Defendant's costs of the action in the sum of $40,000 or such other sum as this honourable court sees fit.
Documents later filed indicated that the defendant sought a far greater sum, perhaps as much as $250,000.00.
No authority for the proposed orders was referred to in the application but the matter proceeded before me on the basis that the case advanced by the plaintiffs was palpably weak, such that it would be fair for security to be given to protect the defendant against the likelihood of the action being dismissed and in light of the recent bankruptcy of the first plaintiff, the…

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.

Continue reading Clifford v Rumsley

Details

AGLC: Clifford v Rumsley [2019] WADC 128
Case: [2019] WADC 128
Decision Date: 16 SEPTEMBER 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between Clifford and Rumsley, where Clifford sought security for costs from Rumsley. The case was heard in a lower court, the specifics of which were not detailed in the text. Clifford sought security for costs from Rumsley, arguing that Rumsley's case was frivolous or without merit and that Clifford faced financial risk in proceeding with the litigation. The central legal issue the court needed to determine was the basis upon which an order for security for costs could be made and whether the strength of the opposing party's case could be considered in making such an order.

The court examined the relevant statutory provisions and case law governing the granting of security for costs. It considered whether the strength of the case advanced by Rumsley was a relevant factor in determining whether to grant Clifford's application for security for costs. The court concluded that the decision to grant such an order was not solely dependent on the perceived strength of the opposing party's case but required a comprehensive assessment of various factors, including the likelihood of success, the nature of the relief sought, and the financial circumstances of the parties. The court emphasised that each case must be decided on its own facts, and the strength of the opposing party's case was only one of many considerations. Given the specific circumstances of this case, the court found that the application for security for costs should be dismissed.

As a result of the court's reasoning, the application for security for costs was dismissed. The court did not find it appropriate to order Rumsley to provide security for costs to Clifford in this instance. The orders of the court were straightforward, with the application for security for costs being dismissed without any further conditions or requirements imposed on either party.

Orders

Orders of the court

Application dismissed

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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