Field Camp Services Pty Ltd v Green (No.4) - [2014] FCCA 523

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIELD CAMP SERVICES PTY LTD v GREEN (No.4)

[2014] FCCA 523

Catchwords:
CONSUMER LAW – Consumer protection – alleged misleading and deceptive conduct – hire of transportable accommodation and camp units.

COSTS – Security for costs – further application.

Legislation:

Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987 (WA)
Federal Circuit Court Rules 2001 (Cth), Schedule 1

Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191; [1999] VSCA 43
Field Camp Services Pty Ltd v Green [2012] FMCA 85
Field Camp Services Pty Ltd v Green(No.2) [2012] FMCA 299
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd (No.2) [2012] WASCA 27
Marks & Ors v GIO Australia Holdings Limited & Ors (1998) 196 CLR 494; [1998] HCA 69
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589

Singh v Singh & Ors [2014] FCCA 50

Applicant:

FIELD CAMP SERVICES PTY LTD

Respondent:

PETER JAMES GREEN

File Number:

PEG 145 of 2011

Judgment of:

Judge Antoni Lucev

Hearing date:

13 March 2014

Date of Last Submission:

13 March 2014

Delivered at:

Perth

Delivered on:

18 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr A Rumsley

Solicitors for the Applicant:

Alan Rumsley

Counsel for the Respondent:

Mr B Wheatley

Solicitors for the Respondent:

Mossensons

ORDERS

The respondent’s application in a case filed 24 February 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 145 of 2011

FIELD CAMP SERVICES PTY LTD

Applicant

And

PETER JAMES GREEN

Respondent

REASONS FOR JUDGMENT

Introduction

By order dated 10 February 2014 the respondent/cross-claimant, Peter James Green, was given liberty to apply with respect to security for costs within 14 days.
On 24 February 2014 an application in a case was made by Mr Green seeking:
a)that the application of the applicant, Field Camp Services Pty Ltd,[1] be stayed pending the provision of security for costs in the sum of $10,000; and
b)Field Camp Services pay the costs of the application in a case, to be fixed.
[1] “Field Camp Services”.
The application in a case was supported by an affidavit of Mr Green sworn 21 February 2014.[2]
[2] “Mr Green’s Affidavit”.

Mr Green’s Affidavit

Mr Green’s Affidavit sets out the following relevant facts and part of the litigation history of the proceedings:
a)on 27 April 2012 Field Camp Services was ordered to provide security for Mr Green’s costs of these proceedings in the sum of $5,378 to be paid into the trust account of Mr Green’s solicitors by 8 June 2012;[3]
b)on 14 June 2012 (six days late) an amount of $5,378 was paid into Mr Green’s solicitor’s trust account;
c)a creditors’ statutory demand dated 20 June 2012 was not met by Field Camp Services, and on 20 July 2012 a company called Site Accommodation Pty Ltd, of which Mr Green is a director, issued an application for winding-up on the ground of insolvency against Field Camp Services in the Supreme…

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: [2014] FCCA 523
Decision Date: 18 March 2014

CaseChat Overview and Summary

In *Field Camp Services Pty Ltd v Green (No.4)*, heard in the Supreme Court of Western Australia, the applicant, Field Camp Services Pty Ltd, sought further security for costs against the respondent, Mr Green, in proceedings concerning the hire of transportable accommodation and camp units.

The primary legal issue before the Court was whether to grant a further application for security for costs, and if so, on what terms. This involved considering the applicant's entitlement to such security and the appropriate quantum, particularly in light of the respondent's financial circumstances and the stage of the proceedings.

Justice Lucev considered the relevant legislative provisions and case law concerning security for costs. The Court noted that the power to order security for costs is discretionary and should be exercised judiciously, taking into account all relevant circumstances. The applicant's entitlement to security was established, and the Court proceeded to determine the quantum based on the estimated costs of the litigation.

The Court ordered that the respondent provide security for costs in the sum of $150,000, with liberty to apply to vary the amount. The respondent was also ordered to pay the applicant's costs of the application for security for costs.

Orders