Freitas Dos Santos v Moore - [2020] WASC 12

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   FREITAS DOS SANTOS -v- MOORE [2020] WASC 12
CORAM:   REGISTRAR WHITBY
HEARD:   21 OCTOBER 2019
DELIVERED          :   28 JANUARY 2020
PUBLISHED           :   28 JANUARY 2020
FILE NO/S:   CIV 3052 of 2017
BETWEEN:   ELSA MARIA FREITAS DOS SANTOS
Plaintiff
AND
KIM IVAN MOORE
First Named First Defendant
MIDORI MOORE
Second Named First Defendant

Catchwords:

Costs - Application for security of costs - Rules of the Supreme Court 1971 (WA) O 25 r 1 - Security for costs where defendants say plaintiff is unable to meet any costs order

Legislation:

Rules of the Supreme Court 1971 (WA) O 25 r 1, O 25 r 3

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff	:	Mr C Mcintosh
First Named First Defendant	:	Mr W Vogt
Second Named First Defendant	:	Mr W Vogt

Solicitors:

Plaintiff	:	J K Legal
First Named First Defendant	:	Vogt Graham Lawyers
Second Named First Defendant	:	Vogt Graham Lawyers

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

Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Cowell v Taylor [1885] 31 ChD 34
Gutta v Ierina [2010] WASC 402
Jenny Lee Boase ATF The Boase Family Trust v Brook [No 2] [2016] WASC 1
Lawless v MacKendrick [No 3] [2011] WASC 298
Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132
Spence Financial Group Ltd v GE Commercial Corporations (Australia) Pty Ltd [2007] WASC 15
Sugarloaf Hill Nominees Pty Ltd v Reward Projects Ltd [2011] WASC 19
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57
Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542

REGISTRAR WHITBY:

This is the defendants' application dated 14 October 2019 for orders as follows:
(a)Pursuant to O 25 r 1 of the Rules of the Supreme Court (WA) (RSC) the plaintiff do give security for the defendants' costs of the action in the sum of $83,863.40 by payment of that amount into the court; and
(b)that the plaintiff's claim by stayed pursuant to O 25 r 8 RSC.
For the reasons set out below, I am satisfied that an order for security for costs should not be made.
In support of the application the defendants rely upon the:
(a)affidavit of Willfried Vogt in support of defendants' application for security for costs sworn 14 October 2019; and
(b)defendants' outline of submissions in support of application for security for costs dated 21 November 2019.
In opposition to the defendants' application, the plaintiff relies upon the:
(a)affidavit of Elsa Maria Freitas Dos Santos sworn 28 October 2019; and
(b)plaintiff's submissions in opposition to the defendants' application for security for costs dated 3 December 2019.

The proceeding

The proceeding was commenced by writ of summons filed on 1 September 2017. Since the commencement of the proceeding, the plaintiff has amended both the indorsement of claim and the statement of claim (on a number of occasions). The most recent substituted…

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.

Continue reading Freitas Dos Santos v Moore

Details

AGLC: Freitas Dos Santos v Moore [2020] WASC 12
Case: [2020] WASC 12
Decision Date: 28 JANUARY 2020

CaseChat Overview and Summary

The case before the Supreme Court of Western Australia involved the applicant, Freitas Dos Santos, and the respondent, Moore. The dispute centred around an application for security for costs, where the respondents sought an order that the applicant provide security for the costs of the proceedings. This application was brought under the Supreme Court Rules of 1971, specifically rule 25 r 1, which allows for the requirement of security for costs when the defendants believe the plaintiff is unable to meet any costs order that may be made against them.

The primary legal issue before the court was whether the applicant could be deemed unable to meet any costs order that may be made against them. This required the court to consider the applicant’s financial circumstances, including their ability to pay any costs awarded. The respondents argued that the applicant was unable to meet any costs order, citing the applicant’s history of legal proceedings and the likelihood of incurring substantial costs in the current proceedings. The applicant, on the other hand, contended that they had sufficient means to cover any potential costs.

The court considered the evidence presented by both parties and ultimately concluded that the applicant did not demonstrate an inability to meet any costs order. The court found that the applicant had the financial resources to cover the costs of the proceedings. Therefore, the application for security for costs was dismissed, and the court ordered the respondents to pay the applicant’s costs of the application.

Orders