Coogee Holdings Pty Ltd as Trustee for the Gilbert Family Trust v Sila Australia Pty Ltd - [2023] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   COOGEE HOLDINGS PTY LTD as Trustee for the GILBERT FAMILY TRUST -v- SILA AUSTRALIA PTY LTD [2023] WADC 81
CORAM:   REGISTRAR JEYAMOHAN
HEARD:   ON THE PAPERS
DELIVERED          :   19 JULY 2023
PUBLISHED           :   25 JULY 2023
FILE NO/S:   CIV 4398 of 2022
BETWEEN:   COOGEE HOLDINGS PTY LTD as Trustee for the GILBERT FAMILY TRUST
Plaintiff
AND
SILA AUSTRALIA PTY LTD
Defendant

Catchwords:

Security for costs - Failure to meet ordered payment - Resultant stay - Dismissal application - Springing order - Discretionary considerations - Pleaded merits

Legislation:

Nil

Result:

Springing order issued

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
Defendant	:	Williams + Hughes

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

Capital Webworks Pty Ltd v AdultShop.Com Ltd [2008] FCA 423
Idoport Pty Ltd v National Australia Bank [2002] NSWSC 18
Marinis v Prendergast [2019] WASC 215
Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44
Mighty River International Ltd v Mineral Resources Ltd [No 2] [2019] WASC 197
Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68

REGISTRAR JEYAMOHAN:

Introduction

This matter arises out of the defendant's application by chamber summons filed 14 June 2023 to dismiss the plaintiff's action for failing to comply with court orders (Application) in circumstances where the action in its entirety is subject to a stay of the proceedings.
The defendant seeks the following orders in respect of the Application:
1.The defendant have leave to bring this Application.
2.Pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC), alternatively, the inherent jurisdiction of the court, the plaintiff's claim be and is hereby dismissed.
At the directions hearing of the Application held in chambers on 5 July 2023, counsel for the defendant appeared. There was no appearance on behalf of the plaintiff. At that hearing, counsel for the defendant sought orders in terms of the Application.
Having had regard to the background of the matter leading up to the stay, and in circumstances where the plaintiff, a body corporate, continued to be unrepresented by a solicitor, the directions hearing was adjourned to 19 July 2023. This adjournment served a twofold purpose. First, to allow the plaintiff the further opportunity to arrange representation and be heard on the Application. Secondly, to allow the defendant the opportunity to file supplementary submissions in support of its Application, further to its outline of submissions filed on 5 July 2023.
In filing its outline of supplementary submissions on 7 July 2023, the defendant sought orders in the alternative to the orders sought in the Application to the extent the court was not minded to immediately summarily dismiss the proceedings in the manner proposed. That is, by further submissions filed 7 July 2023, the defendant seeks that a further springing order be made in the following terms:
Unless by 7 August 2023, the Plaintiff complies with the Orders of Principal Registrar McGivern dated 17 March 2023 (Order), to provide security for the Defendant's costs and third party undertakings in respect of the Defendant's costs, then [p]ursuant to Order 20 rule 19 of the Rules of the Supreme Court 1971, alternatively, the inherent jurisdiction of the court, the Plaintiff's claim be and is hereby dismissed.
The defendant seeks its costs of the Application should the action be summarily dismissed, alternatively, subject to a springing order, be dismissed if, after a final indulgence, the order is not complied with.
For the reasons that follow, by order of the court made 19 July 2023 and communicated to the parties in writing, I make orders in the following terms:
1.Unless by 4.00 pm on 16 August 2023, the plaintiff complies with the orders of Principal Registrar McGivern dated 17 March 2023 (Order), to provide security for the defendant's costs and third party undertakings in respect of the defendant's costs, then the plaintiff's claim be and is hereby dismissed.
2.The plaintiff do pay the defendant's costs of this Application to be taxed if not agreed.
I am mindful that the plaintiff is a body corporate and is no longer represented by a solicitor. I provide my written decision on the papers in having made the orders.

Procedural background

The plaintiff is a corporation incorporated pursuant to the provisions of the Corporations Act 2001 (Cth) and the trustee of the Gilbert Family Trust. At all material times, the plaintiff had as its director, John Wesley Gilbert (Mr Gilbert).
By writ of summons and statement of claim filed 11 October 2022, the plaintiff alleges that on 26 August 2011, the defendant and the plaintiff allegedly entered into a written loan agreement (Loan Facility Agreement) pursuant to which the plaintiff agreed to provide, and the defendant purportedly agreed to accept, a loan facility with the plaintiff.
The plaintiff claims to have advanced to the defendant the sum of $398,295 under the terms of the purported Loan Facility Agreement on 14 July 2011 (the Prior Advance). The plaintiff alleges that the Prior Advance was due and payable by 14 July 2021 with applicable interest. The plaintiff alleges that from time to time, the defendant made repayments to the Prior Advance pursuant to the Loan Facility Agreement. The plaintiff claims that as at the date of the filing of the Writ, the defendant remains indebted to the plaintiff in the sum of $339,536 (Outstanding Sum) and that this amount remains outstanding.
A memorandum of appearance was filed on behalf of the defendant on 20 October 2022. By chamber summons filed 25 November 2022, the sought defendant orders that the plaintiff give security for a tranche of the defendant's costs of the action in the sum of $20,000 (Security for Costs Application). By order of the court made 14 December 2022, the following orders were made pursuant to the memorandum of consent orders filed by the parties on 9 December 2022:
1.The mention of the defendant's application for security costs, on 21 December 2022, be vacated.
2.By 23 December 2022, the plaintiff file and serve any affidavit in opposition to the defendant's application.
3.By 13 January 2023, the plaintiff file and serve submissions and a list of authorities.
4.By 27 January 2023, the defendant file and serve submissions and a list of authorities.
5.The defendant's application for security for costs be set down for a special appointment on 8 February 2023 at 2.15 pm.
6.The costs of these orders, fixed in the amount of $250 be costs in the cause of the application for security for costs.
An amended statement of claim (ASOC) was filed on 14 January 2023. By order of the court made 19 January 2023, the orders made on 14 December 2022 were varied pursuant to the memorandum of consent orders filed by the parties on 14 January 2022 as follows:
1.The orders of Principal Registrar McGivern made 14 December 2022 are varied as follows:
(i)Order 3 - the plaintiff file and serve submissions and a list of authorities is extended from 13 January 2023 to 25 January 2023;
(ii)Order 4 - the defendant file and serve submissions and a list of authorities is extended from 27 January 2023 to 31 January 2023.
2.The costs of these orders, fixed in the amount of $250, are costs in the cause of the application for security costs.
The Security for Costs Application was listed for directions in chambers on 8 February 2023 where the following orders were made:
1.The parties are to confer in relation to the nature, terms and quantum of any undertaking offered in respect of the defendant's costs.
2.By no later than 1 March 2023, the plaintiff is to file and serve an affidavit in relation to the outcome of the conferral referred to in order 1, and any affidavit evidence going to the capacity for the proposed undertaking to be satisfied.
3.By no later than 8 March 2023, the defendant is to file and serve any responsive affidavit and written submissions.
4.By no later than 15 March 2023, the plaintiff is to file and serve any written submissions in reply.
5.Subject to any further order, the application will be determined after 15 March 2023 on the papers and on the hearing of the application on 8 February 2023.
By order of the court made 17 March 2023, the following orders were made pursuant to the memorandum of consent orders filed by the parties on 15 March 2023 (ie the Order):
1.The proceedings are stayed unless by 4.00 pm on 4 April 2023:
(a)the Plaintiff do pay into court the amount of $10,000; and
(b)the director of the plaintiff, John Wesley Gilbert and beneficiary of the Gilbert Family Trust, Beverly Cheryl Gilbert acknowledge in writing to the defendant they assume liability, jointly and severally, for an amount of $10,000 (along with the cash component in 1(a) above), as security for the defendant's costs up to and including a first mediation conference.
2.The defendant has liberty to apply for further security on a date after the first mediation conference.
3.The plaintiff pay the defendant's costs of the application in any event.
4.Subject to order 1, the defendant file and serve a defence and any counterclaim by 26 April 2023.
5.Subject to order 1, the plaintiff file and serve any reply and any defence to any counterclaim by 10 May 2023.
6.The next directions hearing is listed to 18 May 2023 at 9.30 am.
On 24 April 2023, Mr Gilbert attempted to lodge on behalf of the plaintiff a chamber summons to act on behalf of the plaintiff in these proceedings and an affidavit in support. By letter dated 1 May 2023, the court wrote to the parties advising that both documents have been rejected for the following reasons:
1.pursuant to order 1 of the orders made on 17 March 2023, the action is stayed; and
2.in any event, pursuant to O 4 r 3 of the RSC, a body corporate may not carry on proceedings otherwise than by a solicitor.
(Rejection Decision)
On 5 May 2023, Mr Gilbert wrote to the court in respect of the Rejection Decision as a result of which the matter was listed before Russell DCJ on 7 June 2023 for review. The following two orders were separately made by Russell DCJ on 7 June 2023:
1.The Principal Registrar's decision communicated by letter dated 1 May 2023 rejecting the application by chamber summons and affidavit in support of John Wesley Gilbert purported to have been filed on behalf of the plaintiff on 24 April 2023, and vacating the hearing listed on 11 May 2023 per the rejected chamber summons is upheld.
2.By order of the court made on 7 June 2023, pursuant to O 8 r 7 of the RSC, Vogt Graham Lawyers has ceased to be the solicitor acting for the plaintiff in this proceeding.
By letter dated 9 May 2023, the court wrote to the parties advising that as it appears that plaintiff did not comply with Order 1 of the 17 March 2023 Orders within the specified timeframe, the action has been stayed by the court. In that same letter, the court notified the parties to accept this letter as formal confirmation the action has been stayed in the court's system.
The defendant's Application for dismissal of these proceedings was filed on 14 June 2023 and listed for directions in chambers on 5 July 2023. On 19 June 2023, Mr Gilbert attempted to lodge a further affidavit with the court registry. By letter dated 19 June 2023, the court wrote to the parties advising that:
1.The orders of Judge Russell made on 7 June 2023, in which the Principal Registrar's decision communicated to you by letter dated 1 May 2023 be upheld, which state a body corporate may not carry on proceedings otherwise than by a solicitor.
Counsel for the defendant appeared at the directions in chambers on 5 July 2023. No appearance was entered, or attempted to be entered, on behalf of the plaintiff at the directions hearing on 5 July 2023.
By letter dated 18 July 2023, the solicitors for the defendant wrote to the court enquiring whether the court was minded to deal with the Application on the papers. By letter to the parties dated 19 July 2023, the court wrote to the parties advising that the court will deal with the Application on the papers, and vacating the hearing listed for Wednesday, 19 July 2023 in the circumstances.

Legal principles

In Marinis v Prendergast,[1] the plaintiffs had been in default for over five months and the action had been stayed. The defendants brought an application seeking summary dismissal of the action. At [1] - [2], his Honour Kenneth Martin J observed that:
On 9 November 2018, I [made orders] … in the following terms:
…
2.The Respondents (Plaintiffs) are to pay security for costs to the Applicants (the first, second and third defendants) by payments into court or another form of security in lieu that is agreed by the parties, in the sum of $150 …
3.If the Respondents (Plaintiffs) fail to pay Tranche 1 by 9 January 2019, this action will be stayed as against the First, Second and Third defendants until further order. […].
[1] Marinis v Prendergast [2019] WASC 215.
At [28] - [29], his Honour said:
28There was no dispute about this court's power to issue the dismissal orders the subject of the present dismissal application. The only issue is their appropriateness at this time and their terms, if made.
29The written submissions of the first, second and third defendants contend that as a matter of discretion under an exercise of the court's inherent powers there is no antecedent juridical requirement for a 'last opportunity' springing order to be issued prior to the issuing of an order dismissing an action by reason of failure to comply with a security for costs order. I agree with that analysis. But the question presents more as one of what is a fair and just discretionary order in all the circumstances. […].
At [55], his Honour Kenneth Martin J referred to the key factors to be weighed before making the springing order (including in circumstances where the action was already stayed):
(a)the period that has elapsed since security was ordered;
(b)the fact that the plaintiff has been on notice of an application for dismissal;
(c)the seeming inability of the plaintiff to further fund the proceedings;
(d)the prejudice to the defendants; and
(e)the position of the court.
These factors were similarly observed by his Honour Kenneth Martin J in Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 9][2] where at [14] his Honour refers to the key principles upon such a dismissal application as they had been identified by Einstein J in Idoport Pty Ltd v National Australia Bank.[3] Kenneth Martin J in Trafalgar West Investments [No 9] discussed at [14] - [21] some of the case authorities concerning a potential dismissal of a plaintiff's action for circumstances where there had been a failure to provide security for costs under an order made requiring security. At [21], his Honour made the following reference to McKerracher J's decision in Capital Webworks Pty Ltd v AdultShop.Com Ltd:[4]
In the end, His Honour there issued a springing order dismissing the proceedings, but allowing a period of three months for those orders to hover: see [23]. He allowed that period on a basis that a trial was no longer imminent in that case. As I assess those reasons, however, there had been in that litigation no previous springing order(s) by reason of failures to meet a security for costs order, although there had been stays based upon failure to meet tranches of security: see [5]. His Honour was, of course, in that case, considering the provisions of different legislation and rules. In particular, he was concerned with the provisions of s 56(4) of the Federal Court of Australia Act 1976 (Cth). The underlying regime is accordingly distinct, although it seems to me, with respect, that the considerations underlying an exercise of discretion under s 56(4) are very similar to here.
[2] Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68 (Trafalgar West [No 9]).
[3] Idoport Pty Ltd v National Australia Bank [2002] NSWSC 18 [24].
[4] Capital Webworks Pty Ltd v AdultShop.Com Ltd [2008] FCA 423.
His Honour, Kenneth Martin J went on to make the springing order whilst the action in Marinis v Prendergast was already subject to a stay.

The defendant's position

The defendant relies on the affidavit of Gregory John Smith sworn 14 June 2023 (Smith Affidavit) and written submissions filed 5 July 2023 and 7 July 2023 in support of the Application and the preliminary issue. Mr Smith is one of the company directors of the defendant and is authorised to swear the Smith Affidavit on the defendant's behalf in these proceedings.[5]
[5]Smith Affidavit, par 1.
The defendant's submissions are in support of its Application to dismiss the proceedings as a result of the plaintiff's failure to comply with the orders made by the consent of the parties. Relevantly, those orders were for the plaintiff to pay security into court and for third parties to give an undertaking about payment of security for costs. The orders were made on 17 March 2023 requiring the tranche of security to be paid by 4 April 2023 along with the third party undertakings. The plaintiff was legally represented at the time of the making of those orders by consent of the parties.
On 27 April 2023, the defendant sent a letter to the District Court confirming the plaintiff's non‑compliance with the order for payment of security. That letter was copied to the plaintiff's solicitors (at the time) and Mr Gilbert.[6] On 7 May 2023, the defendant's solicitors contacted the plaintiff to give notice of the defendant's intention to have the action dismissed for the plaintiff's failure to comply with a court order.[7] On 8 May 2023, Mr Gilbert wrote to the court directly disputing the defendant's ability to apply to the court to dismiss the action.[8] By order of the court on 7 June 2023, the retainer agreement of Vogt Graham Lawyers was terminated and the plaintiff has no other solicitor on the court record in this action.[9] Mr Smith deposed that he still has a genuine apprehension that the plaintiff could not meet an adverse costs order if its claim in this action is dismissed. Mr Smith further deposed that he has a further apprehension that Mr Gilbert has no means to pursue the action as a director of the plaintiff and as such the plaintiff will allow the action to languish in breach of the orders and rules of the court.[10]
[6] Smith Affidavit, par 5, Annexure GJS-2.
[7] Smith Affidavit, par 8, Annexure GJS-5.
[8] Smith Affidavit, par 9, Annexure GJS-6.
[9] Smith Affidavit, par 10.
[10] Smith Affidavit, par 11.
As at 9 June 2023, the plaintiff has failed to make payment into court of $10,000 by way of a tranche of security for costs or provide the undertakings of the director and beneficiary of the plaintiff company and trust entity.[11]
[11] Smith Affidavit, par 4.
The defendant submits that the plaintiff has failed to comply with the Orders and no security has been paid. Separately, no undertaking has been provided by the director of the plaintiff, Mr Gilbert and the beneficiary of the Gilbert Family Trust, Beverly Cheryl Gilbert (Mrs Gilbert), in the manner required by the order.
The defendant submits that the case of Mighty River International Ltd v Mineral Resources Ltd[12] provides recent insight into the consequences of a failure to comply with consent orders. The defendant submits that the plaintiff should be held to the bargain it made and the consequence of the failure to comply with the order.
[12] Mighty River International Ltd v Mineral Resources Ltd [No 2] [2019] WASC 197; Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44.

The defendant relies on Kenneth Martin J's decision in Marinis v Prendergast in support of the proposition that the court has the power to make a summary dismissal order, alternatively, springing orders, after having previously ordered the action be stayed. The defendant submits that the court has jurisdiction to summarily dismiss a case or strike out a defence for a party's failure to comply with an order of the court. The defendant submits that the court will generally only dismiss an action for failure to comply with orders if one or more of the following factors are present:
(a)the party's non-compliance was contumacious (ie, the party's conduct evidences a perverse and obstinate resistance of the court's authority);
(b)the party has been persistently dilatory in taking steps in the action (especially without any acceptable explanation);
(c)it can be inferred that the party will not or is unlikely to take steps in the action;
(d)the dismissal is desirable or necessary in light of case management principles, such as:
(i)recognition of the prejudice to a fair trial which may ultimately be caused by delay;
(ii)recognition of the enormous stress and anxiety which is usually caused to litigants (particularly individual litigants); or
(iii)recognition of the fact that undue delay and inefficient use of the court's resources by some litigants has the potential to impair access to the court by others; or
(e)the dismissal is in the public interest because it is necessary to protect the integrity of court processes, eg:
(i)because the non-compliance with the order came about by the same inattention or laxity that caused the order to be made in the first place;
(ii)where the action is an abuse of process; or
(iii)where the party behaved with calculated or reckless disregard for their obligations to the court.
The defendant moves the court for the orders in its chamber summons dated 14 June 2023, that is the defendant seeks orders that the proceedings be summarily dismissed. However, the defendant submits that it is open to the court having the orders preconditioned on granting the plaintiff a final opportunity before the plaintiff's action is dismissed.
The defendant concludes that its application should be granted - with or without the further final opportunity being afforded to the plaintiff to comply with the Order and costs should follow the event.

The plaintiff's position

Since the filing of the Application, no notice of legal representation has been filed with the court indicating that the plaintiff is represented by a solicitor.
It follows that no written submissions have been filed in response to the Application and no appearance entered, or attempted to otherwise be entered, on behalf of the plaintiff including at the directions hearing of the Application on 5 July 2023 and subsequent to that.

Analysis

The plaintiff is a body corporate. At the directions hearing of the Application held in chambers on 5 July 2023, no notice of representation had been filed on behalf of the plaintiff and no appearance entered, or attempted to otherwise be entered, on behalf of the plaintiff. Having had regard to the background of the matter leading up to the stay, and in circumstances where the plaintiff, a body corporate, continued to be unrepresented by a solicitor, the directions hearing was adjourned to 19 July 2023.
In the period of time between the adjournment of the directions hearing on 5 July 2023 and the scheduled hearing on 19 July 2023, the plaintiff's representation status remained unchanged. That is, the plaintiff continued to be unrepresented.
It can come as no surprise to the plaintiff that the plaintiff, as a body corporate, cannot carry on proceedings otherwise than by a solicitor. This position has been made expressly clear to the plaintiff on a number of occasions, most notably, at the hearing of the Rejection Decision before Russell DCJ on 7 June 2023. Mr Gilbert was present at that hearing. Where Mr Gilbert has, in his capacity as a director of the plaintiff, attempted to lodge documents with the court on the plaintiff's behalf, the court has written to the parties stating clearly that a body corporate may not carry on proceedings otherwise than by a solicitor.
In the time that has passed, the plaintiff does not appear to have taken any steps to attend to the matter of representation and has not otherwise for example made any application to the court seeking a formal extension of time or a variation of the order for security. The plaintiff has also not resisted the present dismissal Application, communicated with the court on the question of representation and otherwise sought more time to arrange for representation and provide any response to the Application.
In those circumstances, and further to the defendant's written request of 18 July 2023 that the Application be dealt with on the papers, by letter to the parties dated 19 July 2023, the court wrote to the parties advising that the court would deal with the Application on the papers.
The defendant's submissions do not address the question of leave in respect of the Application. However, having considered the matter, I am prepared to deal with the substance of the Application applying Kenneth Martin J's approach in Marinis v Prendergast and having had regard to the relevant legal principles.
Generally, summary dismissal for failure to comply with court orders is a last resort, and it will only be ordered where absolutely necessary. In filing its outline of supplementary submissions on 7 July 2023, the defendant sought springing orders in the alternative to the orders sought in the Application to the extent the court was not minded to immediately summarily dismiss the proceedings in the manner proposed. Here, the period that has elapsed since the making of the order in respect of the provision of security now sits at approximately four months. However, in that time, an order has been obtained from the court pursuant to which Vogt Graham Lawyers has ceased to be the solicitor acting for the plaintiff in this proceeding (meaning that the plaintiff is no longer legally represented) and no steps have been taken by the plaintiff to comply with the order including with the undertakings which sit with Mr Gilbert and Mrs Gilbert. There is nothing before the court to contradict the evidence of Mr Smith in this regard.
There is also a concern raised by Mr Smith, in his capacity as a director of the defendant, of the plaintiff's ability to fund the proceedings. The plaintiff's ongoing lack of legal representation strongly suggests the plaintiff's inability to do so which must be considered in the context of the original security ordered which the plaintiff, whilst legally represented, consented to at the relevant time.
As to the plaintiff's pleaded case, the plaintiff pleads to the existence of a written Loan Facility Agreement and having advanced to the defendant the not insignificant sum of $398,295 under the terms of that purported agreement. Following the defendant's alleged breach, the amount claimed to be owing as at the date of the filing of the writ is $339,536. There is presently no defence position advanced given no defence has been filed by the defendant by procedural agreement as between the parties arising out of the Security for Costs Application.
However, having considered the affidavit of Gregory John Smith sworn 18 November 2022 in support of the Security for Costs Application, the defendant's position as set out in written correspondence between the parties' legal representatives is that on the defendant's view, the plaintiff's present action has no prospects of success. The defendant's position, on a review of the material attached to Mr Smith's affidavit sworn 18 November 2022 suggests that at its lowest, there are disputed matters of fact as to the terms and existence of the purported Loan Facility Agreement, the basis of claim and the nature of the relationship as between the parties. These are all matters which will likely be the subject of lay witness testimony and documentary evidence. As Kenneth Martin J observed in Marinis v Prendergast at [60]:
There is an undeniable forensic truth that, as time marches by, the potential prejudice to defendants in contested fact litigation increases, due to diminished witness recall of past events and the prejudice that adds to reliably marshalling factual evidence to counter what are presently early and still somewhat sketchy pleaded allegations.
Whilst I caution that I do not form a view as to the competing merits of the parties' respective positions, in the context of the Application and having had regard to principles expressed in Marinis v Prendergast, I am mindful of the following in circumstances where the proceedings are already stayed:
(a)the period that has elapsed since security was ordered;
(b)the fact that the plaintiff has been on notice of an application for dismissal;
(c)the seeming inability of the plaintiff to further fund the proceedings;
(d)the prejudice to the defendants; and
(e)the position of the court.
Having therefore had regard to the overall circumstances of the matter therefore, I am not minded to summarily dismiss the action. However, based on the evidence before the court, there are questions which arise as to the plaintiff's ability to further fund the proceedings and the plaintiff's disregard of the court's orders in respect of the payment of security and the undertakings to be given. These matters arising in circumstances where the plaintiff is no longer legally represented and where the available evidence put before the court suggests that there has been no attempt by the plaintiff to progress the very matters which resulted in the stay of proceedings in the first instance.
In all of these circumstances, I am prepared to allow the plaintiff a further period of four weeks from 19 July 2023 to comply with the orders of Principal Registrar McGivern dated 17 March 2023 to provide security for the defendant's costs and third party undertakings in respect of the defendant's costs. But, I will allow it only on the basis that a springing order will issue to immediately strike out the plaintiff's ASOC and to automatically enter a self‑executing judgment that dismisses the plaintiff's present action against the defendant with costs to be taxed if not agreed in the event that the security is not provided within that time frame (ie by 4.00 pm on 16 August 2023).

Orders

By order of the court made 19 July 2023 and communicated to the parties in writing, I made orders in the following terms:
1.Unless by 4 pm on 16 August 2023, the Plaintiff complies with the orders of Principal Registrar McGivern dated 17 March 2023 (Order), to provide security for the defendant's costs and third party undertakings in respect of the defendant's costs, then the Plaintiff's claim be and is hereby dismissed.
2.The plaintiff do pay the defendant's costs of this Application to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
24 JULY 2023