DOMELIA PTY LTD as Trustee for the KEITH BRADFORD FAMILY TRUST, BRADFORD PERSONNEL TRUST and BRADFORD PERSONNEL NO 2 TRUST & ANOR -v- PAIKER [2004] WASC 253

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 253
Case No:	CIV:2499/2003	Heard:	9 NOVEMBER 2004
Coram:	MASTER NEWNES	Delivered:	26/11/04
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for security for costs dismissed
Category:	B
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Parties:	DOMELIA PTY LTD as Trustee for the KEITH BRADFORD FAMILY TRUST, BRADFORD PERSONNEL TRUST and BRADFORD PERSONNEL NO 2 TRUST KEITH BRADFORD ALAN RAEL PAIKER
Catchwords:	Practice and procedure Application for security for costs Whether plaintiff likely to be able to meet order for costs Relevance of contingent debts of plaintiff Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 1335 Rules of the Supreme Court 1971, O 25(1)
Case References:	FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241 Warren Mitchell Pty Ltd v Australian Maritime Officers Union (1993) 11 ACLC 1238 BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857 Dalecoast Pty Ltd v Guardian International Pty Ltd, unreported; SCt of WA; Library No 990168; 7 April 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DOMELIA PTY LTD as Trustee for the KEITH BRADFORD FAMILY TRUST, BRADFORD PERSONNEL TRUST and BRADFORD PERSONNEL NO 2 TRUST & ANOR -v- PAIKER [2004] WASC 253 CORAM : MASTER NEWNES HEARD : 9 NOVEMBER 2004 DELIVERED : 26 NOVEMBER 2004 FILE NO/S : CIV 2499 of 2003 BETWEEN : DOMELIA PTY LTD as Trustee for the KEITH BRADFORD FAMILY TRUST, BRADFORD PERSONNEL TRUST and BRADFORD PERSONNEL NO 2 TRUST

First Plaintiff

KEITH BRADFORD

Second Plaintiff

AND

ALAN RAEL PAIKER

Defendant

Catchwords:

Practice and procedure - Application for security for costs - Whether plaintiff likely to be able to meet order for costs - Relevance of contingent debts of plaintiff - Turns on own facts

(Page 2)

Legislation:

Corporations Act 2001 (Cth), s 1335

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

Result:

Application for security for costs dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr K S W Tan

Second Plaintiff : Mr K S W Tan

Defendant : Mr I R Gillon

Solicitors:

First Plaintiff : Mullins Handcock

Second Plaintiff : Mullins Handcock

Defendant : Lawton Gillon

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

FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241
Warren Mitchell Pty Ltd v Australian Maritime Officers Union (1993) 11 ACLC 1238

Case(s) also cited:

BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857
Dalecoast Pty Ltd v Guardian International Pty Ltd, unreported; SCt of WA; Library No 990168; 7 April 1999

(Page 3)

1 MASTER NEWNES: This is an application by the defendant for an order for security for costs against the first plaintiff, pursuant to s 1335 of the Corporations Act2001 (Cth) or the Court's inherent jurisdiction. The defendants seek security in the…

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 Gerrard v Slamar

Details

AGLC: Gerrard v Slamar [2004] WASC 253
Case: [2004] WASC 253
Decision Date

CaseChat Overview and Summary

In the case of Domelia Pty Ltd as Trustee for the Keith Bradford Family Trust, Bradford Personnel Trust, and Bradford Personnel No 2 Trust & Anor v Paiker, the defendant sought an order for security for costs against the first plaintiff under section 1335 of the Corporations Act 2001 (Cth) or the court's inherent jurisdiction. The defendant sought security in the sum of $125,553.50. The plaintiffs argued that they had the capacity to meet any order for costs that might be made against them in the action. The court found that the defendant's case was substantially built on conjecture and that there was no credible evidence that the first plaintiff would be unable to meet any order for costs. The court dismissed the application for security for costs. The court found that the costs sought by the defendant were excessive and that an appropriate figure would be substantially less than the amount claimed, likely no more than $80,000. The court's decision was based on the financial information before it, and the defendant had the option to make a further application should circumstances change.

Orders