Emanuele v Boscaini & Eighty Two Pty Ltd No. DCCIV-01-772

EMANUELE v BOSCAINI & EIGHT TWO PTY LTD
[2002] SADC 74
Judge Robertson
Civil
Introduction

This is an Appeal from a decision by a Master in which the Plaintiff was ordered to provide security for costs in the sum of $25,000 pursuant to the provisions of Rule 100 of the District Court Rules 1992 (“the Rules”). In making his order, the Master found that special circumstances existed within the meaning in Rule 100.01 (e) of the Rules. The Rule provides that the Court may order security for costs “… where for special circumstances the justice of the case so requires”.
The Appeal is brought pursuant to the terms of Rule 97 of the Rules. It is an Appeal by way of rehearing. I agree with Martin J in O’Brien Lovrinov Crafter Pty Ltd v Corradine (1999) SASC 159 (at 5) that Rule 97.01 makes it plain that in an Appeal from a Master, where the Master has exercised his discretion, a Judge may exercise his own discretion without regard to the manner in which the discretion was exercised by Master.
Nature of the Proceedings
Apart from the pleadings, the Master had regard to the affidavit of the Defendant (“Mr Boscaini”) sworn on 20 June 2001, an affidavit of the Plaintiff dated 17 September 2001 and the affidavits of Antonio Tropeano dated 31 May 2001 and 8 June 2001 respectively.
The Plaintiff’s claim is for breach of contract. The Plaintiff’s case is that he entered into an oral agreement with Mr Boscaini whereby it was agreed that a property situated at 81 King William Street, Adelaide (“the property”) would be purchased through a company to be nominated by them. Further, that the shares in the company would be held equally by the Plaintiff and Mr Boscaini. The Plaintiff said in his affidavit that it was a term of the agreement that Mr Boscaini would provide the purchase price for the property, namely $1.3 million by way of loan. It is further said by the Plaintiff that both he and Mr Boscaini agreed that the Second Defendant (“Eighty Two”), would be used to purchase the property. At that time, Mr Boscaini was the beneficial owner of all of the issued shares in Eighty Two. Eighty Two purchased the property for $1.3 million. The Plaintiff claims that the Defendants, in breach of the oral agreement, have refused to transfer one half of the issued shares in Eighty Two to him. The Plaintiff seeks (inter alia) specific performance of the agreement and damages.
It is Mr Boscaini’s case that he never entered into any agreement with the Plaintiff whether of the nature alleged by the Plaintiff or at all. Mr Boscaini says that the Plaintiff introduced him to the property and made certain representations regarding the property and its value. Mr Boscaini further says, that as a result of a request by the Plaintiff, he caused Eighty Two to take an assignment from a person called Antonio Tropeano (“Mr Tropeano”) of a written contract for the purchase by Mr Tropeano of the property from the owner. Following this assignment, Mr Boscaini says that the Eighty Two proceeded to complete the contract which was assigned by purchasing the property for $1.3 million.
It is further stated by Mr Boscaini that, prior to Eight Two purchasing the property, there was some discussion with the Plaintiff regarding the Plaintiff’s involvement with the property and any profit which might be made on the sale of the property at a later date. However, it is the case of Mr Boscaini and Eight Two that the question of the Plaintiff’s involvement with the property and the nature of that involvement never proceeded beyond the discussion stage. The Defendants allege that the discussions did not include the Plaintiff obtaining fifty percent interest in the property.
The Master’s Decision
In his Reasons the Master, whilst discussing “special circumstances”, initially commented that the nature of the transaction was “highly unusual” in that it initially started out with Mr Tropeano agreeing to purchase the property and then the Plaintiff and Mr Tropeano claiming an interest in the property. It appears that the Master felt that the “highly unusual” character of the transaction was a relevant factor in considering whether special circumstances exists. I doubt whether I would have described the transaction as “highly unusual” but in any event that is a matter of perception. However, I do not agree that the nature of the transaction as the Master described it is a factor to be taken into account.
After dealing with the nature of the transaction the Master commented that “… the plaintiff has asserted an interest in the property without consideration”. Mr Brohier, Counsel for the Defendants, pointed out that the Learned Master must have been referring to the absence of monetary consideration, which the Master had discussed a little earlier in his Reasons. That would seem to be a reasonable interpretation to be placed on the Master’s comment. I am uncertain if the Master was relying on the absence of consideration in support of his view that the Plaintiff had poor prospects of success. In any event, in my opinion, on the face of the pleadings and on the evidence provided by the Plaintiff in his affidavit of 31 May 2001 the Plaintiff has alleged valuable consideration to support the alleged agreement. Mr Brohier conceded as much in the course of his submissions.
Earlier in his Reasons the Master found that the Plaintiff is impecunious. He acknowledged in his Reasons, in my opinion correctly, that impecuniosity, standing alone, does not amount to special circumstances. However, he also concluded that the Plaintiff had “… very poor prospects of success”. The Master said that the agreement alleged by the Plaintiff “…is marked by significant uncertainty and is such that the arrangement could well fail for uncertainty”. This issue featured prominently in the challenge by the Plaintiff to the Master’s decision.
Submissions of the Plaintiff.
It was submitted by Mr Slattery, Counsel for the Plaintiff, that the Master had erred in the exercise of his discretion, by concluding that the Plaintiff had very poor prospects of success because the agreement could fail for uncertainty. He acknowledged that the prospects of success of a plaintiff’s claim is a relevant factor to be considered in considering whether special circumstances existed. However he submitted there was insufficient evidentiary material to enable the Master to assess the prospects of success of the Plaintiff’s claim and to reach the conclusion that the agreement could well fail for uncertainty.
Mr Slattery further submitted that the Master had also taken into account, as a relevant factor, in the exercise of his discretion to order security, the absence of a plea by the Plaintiff that an order for security would stultify the proceedings. He submitted that the absence of a plea by the Plaintiff that an order for security would stifle or frustrate the action, was not a relevant consideration in the exercise of his discretion. I have not formed the view, on reading the Master’s comprehensive Reasons, that he relied on the absence of such a plea as a factor to be taken into account in the exercise of his discretion. The Master simply noted the absence of a plea by the Plaintiff that an order for security would stifle or frustrate the action and he accordingly concluded it was not a factor that he needed to consider. In any event, as will be seen shortly, I am of the opinion that the absence of the plea does play a role in the exercise of the discretion.
Consideration of the Master’s Reasons.
It is trite to say that the discretion under Rule 100.01 is unfettered but must be exercised judicially. “Special circumstances” is not defined. What needs to be acknowledged is that they are words of wide import and should be given their natural and ordinary meaning (Saywell v Yiu (1976) SASR 56 at 58).
The Master found the Plaintiff to be impecunious. In my opinion there is sufficient evidence in the affidavits presented by the Defendants to support that finding. The absence of evidence from the Plaintiff to negate the evidence presented by the Defendants, with respect to the Plaintiff’s financial position, lends support to the findings by the Master that the Plaintiff is impecunious (FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (1999-2000) 33 ACSR 739 at 745-746). In any event, I did not understand Mr Slattery, Counsel for the Plaintiff, to challenge that finding.
The Master, in my opinion correctly, acknowledged that the finding of impecuniosity does not in itself establish that special circumstances exist. (Collins v Emacord Autos Pty Ltd S6418 delivered 3 November 1997). However, it is a factor which may be taken into account in the exercise of the discretion together with other relevant factors which may exist. I agree with Perry J in Byrt v Giannopoulos (S3802; delivered 27 January 1993) that it is difficult to see how “special circumstances” can arise if it is not, in the first place, established that the plaintiff is impecunious and would therefore be unable to meet any order for costs.
As I mentioned earlier, it is clear that one of the factors which a Court is entitled to place in the scales in considering whether special circumstances exist is the likelihood of the plaintiff succeeding in the proceedings. (Byrt v Giannopoulos (supra) (page 3)). In my view, in assessing the likelihood of success of a plaintiff’s claim the test to be applied is whether there is a high probability that the plaintiff’s claim will not succeed. That test was enunciated in Porzelack K.J. v Porzelack U.K. Ltd. (1987) 1 WLR 420 by Brown-Wilkinson VC when he said (at 423):
“Undoubtedly, if it can clearly be demonstrated that the Plaintiff is likely to succeed in the sense that there is a very high probability of success then that is a matter that can be properly weighed in the balance. Similarly, if it can be shown that there is a very high probability that the Defendant can succeed then that is a matter that can be weighed.”
It has been accepted in Australia in the Federal Court in Appleglen v Mainzeal (1988) 78 ALR 634 (at 635) and Equity Access Ltd vWespac Banking Corporation (1989) ATPR 50,632 at 50,636.
At one point Mr Slattery submitted that the Master had adopted the incorrect test by stating the Plaintiff had very poor prospects of success. However, during submissions, I think he became satisfied that it was only a question of semantics and that the Master was applying a similar test to that laid out in Porzeleck. In any event, I am of the view that it is only semantics and that the Master did apply the correct test.
Having reached this position, the next question is whether there was sufficient material before the Master to conclude that “… the arrangement could well fail for uncertainty”. In considering this question the first step is to identify the principle upon which courts rely when dealing with the issue of whether a contract is void for uncertainty. The authors of the text Contract Law In Australia (3^rd Edition) have, in my view, correctly stated the principle of law (at p.73):-
“Two related but conceptually distinct, principles here are involved. In the first place the language used by the parties may be such that the court is unable to attribute to it a sufficiently precise and clear meaning in order to identify the scope of the rights of obligations agreed to. In such a case there is in fact no concluded agreement and the alleged contract will be held to be void for uncertainty.” (Emphasis added)
It is in this sense that I understand the Master to have reached the conclusion that the contract could well fail for uncertainty.
The Plaintiff has pleaded the terms of the agreement in the Statement of Claim. Further, he has referred to those terms in his affidavit sworn on 31 May 2001. There is a conflict between the parties because the Defendants, both in their Defence and in the affidavit of Mr Boscaini, deny that Mr Boscaini entered into any agreement with the plaintiff.
In the context of the law of contract it is important to recognise that the courts will generally strive to uphold contracts particularly one which is informally established in a commercial setting. The courts recognise that people in commerce are not versed in the nuances of the law of contract when they enter into commercial transactions. It is this recognition, which is the basis of the courts’ attitude that they will generally strive to uphold a commercial contract if that is possible.
The Master, in his Reasons pointed to an absence in the Statement of Claim of some contractual terms which he thought were important. The Master said there was uncertainty on the face of the Plaintiff’s claim in that he claimed a fifty percent interest in the property or alternatively a fifty percent interest in profit generated by the investment. He also referred to what he classified as “associated issues”, which he identified and stated that the Plaintiff had failed to address these issues.
I am not convinced that the matters raised by the Master demonstrate that the agreement could well fail for uncertainty. Both in his Statement of Claim and in his affidavit the Plaintiff is consistent in asserting that the agreement was that both he and Mr Boscaini would each hold fifty percent of the shares in the entity which would purchase the property. In paragraph 4.5 of the Statement of Claim the Plaintiff pleads that through their respective shareholdings they each would share equally in any development profit made from the purchase, development or investment in the property. All I understand from that pleading is that whatever strategy the parties adopted, with respect to the property, they would each be entitled to fifty percent of the profit generated by the strategy.
One of the problems in attempting to assess the chances of success of the Plaintiff’s claim is the limited material available upon which to base such an assessment. All that is available are the affidavits I have referred to and the pleadings. On that material I am unable to agree with the Master that it can be concluded that the agreement could well fail for uncertainty. The test pronounced by Porzelack is a high one. I do not accept that there is a high probability that the Defendant will succeed because the agreement is void for uncertainty. I should add that it is not part of the Defendants’ case, on their pleadings, that the alleged agreement is void for uncertainty. I am therefore of the opinion that the Master was in error in concluding that the Plaintiff has very poor prospects of success. It follows from the findings I have made regarding the factors relied upon by the Master that he erred in the exercise of his discretion in ordering security for costs.
Before I leave this topic, there is one further matter which I wish to raise. It should not be inferred from anything that I have said that I hold any view whether the evidence of either the Plaintiff or Defendant is likely to be accepted. That is an issue for the Trial Judge after having heard all of the evidence in the Trial. Clearly there is a conflict between the Plaintiff and Mr Boscaini which will need to be resolved. Mr Brohier submitted that even if I reached the conclusion that it is not open to the Master to find that there is a high probability that the Plaintiff’s claim would not succeed, he submitted that I should still find that the Plaintiff’s case will not succeed because the plaintiff’s evidence is unlikely to be accepted. That submission must be rejected. As I said, the credit of the Plaintiff and Mr Boscaini can only be resolved at the Trial, following the hearing of all of the evidence in the matter.
Exercise of the Discretion Afresh.
I now turn to consider whether I should exercise the discretion to order security for costs. Mr Brohier’s submission relied upon five factors, which he said established that special circumstances existed for the ordering of security for costs. I have already dealt with one of those matters, namely the question of whether the plaintiff is likely to succeed and rejected it as one that can be placed in the scales. I have also dealt with the question of impecuniosity and found that the plaintiff is impecunious. However, as I stated earlier, that factor alone cannot be a basis for finding special circumstances exist.
One other factor which Mr Brohier submitted should be placed in the scales, is the conduct of the Plaintiff in the application before the Master. In fact what Mr Brohier was referring to was a separate application brought by the Plaintiff seeking to restrain the Defendants’ solicitors from further acting on their behalf on the basis of a conflict of interest. In this application, Mr Griffin, the principal in the firm of the solicitors acting for the Defendants, was cross-examined on his affidavit. The Master was critical of the Plaintiff pursuing the cross-examination of Mr Griffin and concluded that he perceived it “… as being a contrivance to have Mr Griffin cease acting”. The Master went on to say however, that such conduct was not a factor relevant regarding whether special circumstances exist. I agree with the Master.
The fourth factor which Mr Brohier identified as relevant is the role which Mr Tropeano has in the proceedings. I mentioned earlier that Eighty Two took an assignment of a contract which Mr Tropeano had entered into with the owner of the property to purchase the property. It was under the assigned agreement that Eighty Two completed the purchase of the property. I also mentioned earlier that the Plaintiff was the person who directed the attention of Mr Boscaini to the property and suggested to Mr Boscaini that he take an assignment of the agreement for sale and purchase from Mr Tropeano. Mr Tropeano is the solicitor representing the Plaintiff in these proceedings.
Mr Tropeano in an affidavit sworn on 8 June 2001 deposed that prior to settlement of the purchase of the property by Eighty Two, the Plaintiff offered him twenty percent of the fifty percent interest the Plaintiff was to obtain in the property through the shares he was to receive pursuant to the agreement with Mr Boscaini. Mr Tropeano deposed that the Plaintiff holds twenty percent of the Plaintiff’s right to fifty percent of the shareholding in Eighty Two on a bare trust for Mr Tropeano. It is this transaction, in particular, that Mr Brohier focused upon.
The final factor referred to by Mr Brohier was the absence of a plea by the Plaintiff that an order for security for costs would stultify the proceedings. In my view both these factors need to be considered in conjunction with each other.
The Defendants submitted that I should infer that Mr Tropeano is funding the Plaintiff’s litigation. Mr Brohier submitted that such an inference can be drawn from the following facts:
·First, Mr Tropeano has an interest in the outcome of the proceedings as a result of his entitlement to twenty percent of the fifty percent interest which the Plaintiff claims.
·Secondly, that he is the solicitor on the record for the Plaintiff in these proceedings.
·Thirdly, that the Plaintiff is impecunious.
·Fourthly, that the Plaintiff has not asserted that any order for security for costs will stultify the continuation of the proceedings.
It is Mr Brohier’s submission that as Mr Tropeano is financially supporting the Plaintiff’s litigation and that he stands to benefit from it then that is a factor which can be taken into account for the purpose of establishing special circumstances exist. It is his submission that Mr Tropeano’s position is analogous to a person or persons, such as unsecured creditors or a receiver, who stand to benefit from proceedings instituted by an insolvent company.
Mr Brohier referred to a number of decisions under corporations law where an application for security for costs was made against an insolvent company who pleaded that an order for security would stultify the proceedings because of its insolvency. Each application was brought under the Corporations Law legislation. In particular, he referred to the decisions of N.A. Productions Pty Ltd v Austarama Television Pty Ltd (1988) 1 ACLC 404; Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 8 ACLR 588 and Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542. These authorities support the proposition that where there is an impecunious corporation which has pleaded that the order for security for costs would stultify the action and there are persons behind the corporation who would benefit from its claim and who could provide security, such as shareholders, unsecured creditors or a receiver, then it is generally appropriate that an order for security of costs be granted. In other words the Court demands that those who are to benefit from the litigation should come out from behind the impecunious company and provide the funds to meet a security for costs order provided they have the financial capacity to do so.

Mr Slattery submitted that the principle expressed in those cases is dependent upon a claim by an impecunious plaintiff company that to order security for costs would stultify the company’s proceedings. He submitted that in such circumstances the court will look to see whether there are persons behind a plaintiff company who would benefit from the litigation and who could provide security for costs. If there were such persons then their capacity to place the insolvent company in funds to meet an order for security would be a relevant factor to consider along with other relevant factors including that the proceedings would be stultified if the order was made. It was submitted by Mr Slattery that there has been no plea by the Plaintiff in these proceedings that an order for security would stultify the proceedings and as a result those authorities have no relevance in the present circumstances.
Before turning to consider the question of whether those authorities are relevant here I need to consider whether I am prepared to make the findings of facts urged upon me by Mr Brohier. In the first instance he submitted that I am entitled to draw the inference that Mr Tropeano is funding the Plaintiff’s proceedings. In my view the facts identified by Mr Brohier, to which I referred earlier, lead to the inference that Mr Tropeano is funding the Plaintiff’s proceedings. Clearly, the Plaintiff’s impecunious state does not allow him to fund the cost of pursuing the proceedings. The combination of the Plaintiff’s impecuniosity, Mr Tropeano’s interest in the success of the proceedings and the fact that he is acting for the Plaintiff points to him as the person funding the Plaintiff’s proceedings. In my view the fact that there is no plea, that the proceedings would be stultified by an order for security, for reasons which will become apparent later in these Reasons, adds further strength to the inference. However, even without that fact the inference can be drawn from the other facts to which I have referred.
Mr Brohier also submitted that I should find that Mr Tropeano has the financial capacity to meet an order for security for costs. He submitted that this finding can be reached as a result of a submission made by his Counsel in the application before the Master. For reasons I am not fully able to comprehend Mr Tropeano became involved in the application for security for costs. It appears that in some manner the Defendants were seeking an order for security for costs against Mr Tropeano as the person standing behind the Plaintiff in the litigation albeit that he was not a party to the proceedings. During the course of the application he was represented by his Counsel, Mr Rossi. In the course of making submissions, Mr Rossi asserted that Mr Tropeano had the financial capacity to meet an order for security of costs against him. The Transcript of the proceedings before the Master records (at pages 96 and 97) the following submissions by Mr Rossi:-
“The other point, in my submission, is that there is no evidence before you that Mr Tropeano would not be in a position to meet an order for costs against him if such an order were to be made, in any event, at the end of these proceedings. In fact, to the contrary, given that the amount of the security for costs sought against Mr Tropeano is $101,000 – and I will have a little to say about the quantum in a moment – but even at that highest point you have clear evidence before you that Mr Tropeano advanced $130,000 or at least security by way of a guarantee by way of deposit in relation to the building and that in itself is evidence that if an order were to be made then the court would have a reasonable satisfaction that Mr Tropeano would be in a position to satisfy such an order”.
In my view that is an unambiguous assertion by Mr Tropeano’s Counsel that Mr Tropeano has the financial capacity to meet an order for security. In the Appeal before me it was not submitted that I should make an order against Mr Tropeano personally. What is submitted by Mr Brohier is that it is relevant to the exercise of the discretion that Mr Tropeano stands to benefit from the proceedings, that he is funding the Plaintiff in the proceedings and that he has the financial capacity to fund any order made against the Plaintiff to provide security.
I now come to the submissions by Mr Slattery that because it has not been asserted that an order would stultify the proceedings then the corporations law authorities are not relevant. As a corollary to that submission, as I said earlier, Mr Slattery submitted that the absence of a plea that the proceedings will be stultified cannot be a relevant factor to take into account when considering “special circumstances” in Rule 100.01(e).
I do not accept either of those submissions. With respect to the first submission it is acknowledged that generally where there is a plea that an order for security would frustrate a plaintiff company’s proceedings then it is also a relevant factor in the exercise of the discretion if there are persons behind the company who stand to benefit from the proceedings and who have the financial capacity to meet an order. However, it is important to recognise that they are separate factors which are placed in the scales for the purpose of the exercise of the discretion. The point is made by Clarke J in Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 at 545:
“The fact that the ordering of security will frustrate the plaintiff’s rights to litigate its claim because of its financial condition does not automatically lead to the refusal of an order. Nonetheless it will usually operate as a powerful factor in favour of exercising the Court’s discretion in the plaintiff’s favour.
It must be observed however in this respect that the mere fact that the plaintiff is financially unable to provide security does not lead inevitably to the conclusion that the making of an order will stultify the plaintiff’s claim. There is a line of authority, commencing with the unreported decision of Yeldham J in Tullock v Walker (8 December 1976), standing for the proposition that if the personnel behind the corporate plaintiff, or other parties who will benefit if the plaintiff succeeds, are financially able to provide adequate security then it is generally speaking, inappropriate to refuse an order”.
However, the fact that it has not been asserted that an order would frustrate the Plaintiff’s proceedings does not mean that those authorities cannot be of any assistance. What is of importance is the reason why the courts in those circumstances, consider that the persons who stand to benefit and who have financial capacity are relevant factors. That reason is explained by Moffitt P in Pacific Acceptance Corporation Limited v Forsyth (No 2) (1967) 2 NSWR 402 (at 407):
“It recognises that if a company wins it will get the benefit of its verdict and an order for costs against the defendant to the advantage of those who have an interest in the assets of the company, but that the defendant sued will, if successful, be at a disadvantage in being unable to recover his costs if the company is financially insecure and that it is fair that he be placed in an equal position with the company by the company providing or having provided by those concerned in the fruits of the litigation, a means of the defendant sued recovering his costs, if he wins.”
That is precisely the case here. The Plaintiff is impecunious. If the Defendants succeed the Plaintiff will not be in a position to meet the Defendants’ costs. Of course, that is the position of any impecunious Plaintiff and it has been seen from earlier observations that the impecuniosity of the Plaintiff standing alone is not sufficient. But there is more. Mr Tropeano stands behind the Plaintiff. If the Plaintiff succeeds then he will obtain a substantial benefit without being a party to the action. I have already found that Mr Tropeano has the financial capacity to meet any security for costs order. It is because of these circumstances that the corporations law provides some assistance. The fact that it has not been asserted by the Plaintiff that an order would stultify the proceedings does not make them any less relevant. It is the reason behind the decisions which makes them relevant to the present case.
What I have just expressed is also an answer to the submissions that the absence of a plea of justification cannot be a relevant factor to take into account when considering “special circumstances”. However, there is another reason why the absence of the plea is relevant. In my view the absence of plea indicates that the Plaintiff has financial support if an order for security for costs is made. Having reached that conclusion it can be inferred that the financial support comes from Mr Tropeano. He has an interest in the proceedings. He is funding the impecunious Plaintiff’s pursuit of the proceedings. He has the financial capacity to enable the Plaintiff to meet an order for security for costs.
In my view the following factors are relevant in weighing up whether “special circumstances” exist:
·First that the plaintiff is impecunious.
·Secondly, that Mr Tropeano, is a party, who stands to benefit from the proceedings if they are successful.
·Thirdly that the Plaintiff also stands to benefit if the proceedings are successful.
·Fourthly, that Mr Tropeano is funding the Plaintiff’s pursuit of the proceedings.
·Fifthly, that Mr Tropeano has the financial capacity to fund an order for security for costs made against the Plaintiff.
·Sixthly, that the Plaintiff has not pleaded that an order for security for costs would stultify the proceedings.
·Seventhly, that the reason for the absence of a plea that an order would stultify the proceedings is that Mr Tropeano is prepared to fund any order for security made against the Plaintiff.
It seems to me that when all those factors are taken into account then “special circumstances” do exist. The Rule provides that an order for security for costs may be made “… where for special circumstances the justice of the case so requires.” (Emphasis added). In my opinion the fact that the Plaintiff also will benefit from the proceedings does not outweigh the other factors in support of the exercise of the discretion. Mr Tropeano has a substantial stake in these proceedings. He will benefit if the Plaintiff is successful. He is financially supporting them because the Plaintiff is impecunious. He has the financial capacity to meet an order for security. He is prepared to support the Plaintiff financially if an order is made. All these latter factors I have just mentioned lead to the conclusion that special circumstances exist and that the discretion should be exercised to order security for costs. I should say that even if I had not drawn the inference that Mr Tropeano was prepared to fund any order for security for costs I would still have found special circumstances exist because of the other factors I have mentioned.
Accordingly, I exercise my own discretion and order that the Plaintiff provide security for costs. I see no reason why the amount of the security should not be similar to that ordered by the Master but I will hear the parties on that question. I will also hear the parties on the question of costs and any other orders.

[2002] SADC 74

29 May 2002