Coonwarra Pty Ltd v Cornonero Pty Ltd (No 2)

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2017 00190

COONWARRA PTY LTD Plaintiff
v  

CORNONERO PTY LTD & ORS

(according to the attached schedule)

Defendant

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JUDGE:

 Derham AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

25 July 2019

DATE OF JUDGMENT:

23 October 2019

CASE MAY BE CITED AS:

Coonwarra Pty Ltd v Cornonero Pty Ltd (No 2)

MEDIUM NEUTRAL CITATION:

[2019] VSC 702

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PRACTICE AND PROCEDURE – Security for costs – Whether plaintiff’s impecuniosity may have been caused or contributed to by fifth defendant – Supreme Court (General Civil Procedure) Rules 2015, rr 62.02(1), 62.04 – Corporations Act 2001 (Cth), s 1335(1).

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr A T Schlicht Simon Nixon & Associates
For the Fifth Defendant Mr C G Juebner Russell Kennedy Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of conclusions................................................................................................................... 1

Evidence............................................................................................................................................... 3

Summary of the claims and facts..................................................................................................... 3

December 2014 loan...................................................................................................................... 8

August 2015 loan........................................................................................................................... 8

February 2016 loan...................................................................................................................... 12

Submissions...................................................................................................................................... 14

Fifth defendant’s submissions.................................................................................................. 14

Plaintiff’s submissions............................................................................................................... 16

Consideration.................................................................................................................................... 17

Conclusion......................................................................................................................................... 22

HIS HONOUR:

Introduction

  1. The fifth defendant, Berkeley Capital Partners Pty Ltd (BCP), applies under Order 62 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) and s 1335(1) of the Corporations Act 2001 (Cth) for an order that the plaintiff (Coonwarra) give security for BCP’s costs of defending the proceeding.[1]

    [1]The application is made by summons filed on the 11 April 2019.

  1. There has been an earlier application for security for costs made by the third defendant, Mr Peter Andrew Breckenridge (Breckenridge). In June 2018 I ordered security for costs of the proceeding in favour of Breckenridge.[2]  I will refer to parts of those reasons in the course of these reasons. However, it is important to observe that this application concerns a different defendant against whom different claims are made and that the material now available to the plaintiff is more detailed and, it is contended, provides a solid foundation for the ground upon which it resists giving security.

    [2]Order made on 20 June 2018.  The reasons are published in Coonwarra Pty Ltd v Cornonero Pty Ltd [2018] VSC 333 (earlier decision).

  1. The applicable law is well settled by a variety of decisions of this Court and many other courts.[3]  It is unnecessary to rehearse the principles.  I will deal with the applicable law as necessary in the course of considering the evidence and submissions.

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Details
Case
[2019] VSC 702
Decision Date

CaseChat Overview and Summary

Coonwarra Pty Ltd, the plaintiff, brought an action against Cornonero Pty Ltd, the first defendant, as well as four other defendants. The plaintiff sought security for costs in the proceedings, arguing that the first defendant was impecunious. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the plaintiff's impecuniosity could have been caused or contributed to by the fifth defendant. The court was required to examine the relevant rules and statutory provisions to determine if the plaintiff was entitled to security for costs. The Supreme Court (General Civil Procedure) Rules 2015, rules 62.02(1) and 62.04, as well as section 1335(1) of the Corporations Act 2001 (Cth) were the primary legal frameworks considered by the court. The court found that the plaintiff's impecuniosity was not caused or contributed to by the fifth defendant. It concluded that the plaintiff was not entitled to security for costs under the circumstances. The court's reasoning was grounded in the specific provisions of the rules and the statute, which required the plaintiff to demonstrate that the impecuniosity was attributable to the defendant. As the plaintiff could not meet this burden of proof, the court dismissed the application for security for costs.

Orders

Orders of the court

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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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