Collins v Emacord Autos Pty Ltd - [1997] SASC 6418

COLLINS V EMACORD AUTOS PTY LTD

Full Court
Coram: Doyle CJ, Lander & Bleby JJ
LANDER J
On 11 July 1996 the defendant sought an order that the plaintiff provide security for costs pursuant to r100 of the Supreme Court Rules.
The matter came on before a Master who on 30 August 1996 dismissed the application upon the grounds that there was a factual dispute as to whether "there is any liability to pay monies by the defendant".
The Master did not consider there were special circumstances in the matter which would justify him making an order for security for costs under r100.01(e) .
From that decision the defendant appealed to a Judge of this Court, who allowed the appeal and ordered that the plaintiff provide security for costs. He directed that the matter be returned to the Master to fix the amount of that security. He ordered that the plaintiff pay the defendant its costs of the appeal to be taxed.
The plaintiff appellant purports to appeal to this court against the order of the Judge at first instance upon a number of grounds.

The purported grounds of appeal are:

The learned Judge erred in holding that the Plaintiff was not the owner of the Loan funds.

The Learned Judge erred in not helping the Plaintiff in presenting his case as he was undefended and could afford representation.

The Learned Judge erred by not accepting that the Defendant has acted in an abuse of process in issuing these proceedings as the matter was to go to trial and being late with every process during the commencement of this matter.

The learned Judge erred in not recommending that all the matters raised by the Defendant should have been left up to the trial Judge.

The Learned Judge erred in allowing the Defendants Solicitor to handle this case in the Court as he has action for all parties in the past.

PARTICULARS

5.1 The Defendants Solicitor gave advice to the Plaintiff, his company and the Defendant that these loan funds belonged to the Plaintiffs company which were subsequently transferred to him. The Plaintiff paid some $6,500.00 for this advice.

5.2 The Defendants Solicitor caused by way of instruction by the Plaintiff to obtain an opinion by Counsel to ascertain who owned the loan funds.

5.3 The Defendants Solicitor acted for all parties and in 1992 knew all the facts of this matter and advised that the loan funds belonged to the Plaintiff and now is advising the Court of different facts.

5.4 The learned Judge erred in holding that the Defendants Solicitor, say he did not or could not remember he handled any matter for the Plaintiff and/or his company. The learned Judge would not allow the Plaintiff to supply any proof of this fact.

The learned Judge erred in not taking into account all the facts in this matter."

The jurisdiction to make an order for security of costs is given by r100.01. That rule provides:

"The Court may order…

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.

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Details

Case: [1997] SASC 6418
Decision Date: 3 November 1997

CaseChat Overview and Summary

Collins v Emacord Autos Pty Ltd was a case that came before the Full Court, with Doyle CJ, Lander, and Bleby JJ presiding. The central issue was whether the plaintiff, Collins, had to provide security for costs in the proceedings against the defendant, Emacord Autos Pty Ltd. The plaintiff had previously appealed an order made by a Master, who dismissed the defendant's application for security for costs. The defendant subsequently appealed to a single Judge, who allowed the appeal and ordered Collins to provide security for costs.

The legal issues before the Full Court included the competency of the plaintiff's appeal to the Full Court, the appropriateness of granting leave to appeal, and the merits of the trial Judge's decision to order security for costs. The court had to consider whether the plaintiff's appeal was competent, whether leave to appeal should be granted, and if the trial Judge exercised his discretion correctly in ordering security for costs.

In determining the competency of the appeal, the court noted that the appeal from the Master to a single Judge was correctly brought. However, an appeal from a single Judge to the Full Court requires leave, which was neither sought nor granted. Despite this, the court allowed the plaintiff to argue for leave to appeal. The court found that the appeal did not raise any questions of general principle or importance to the parties, nor did it suggest any error in the trial Judge's exercise of discretion. The plaintiff's case appeared to be without merit, and his impecuniosity further supported the trial Judge's decision to order security for costs.

Ultimately, the Full Court dismissed the appeal as incompetent and refused leave to appeal. The court held that the plaintiff's case lacked any substantial prospect of success, and the trial Judge's decision was correctly made. The orders of the court were to dismiss the appeal and to direct that the plaintiff pay the defendant's costs of the appeal.

Orders