GWM Goldmining Pty Ltd v Frerk - [2018] NSWCA 162

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GWM Goldmining Pty Ltd v Frerk [2018] NSWCA 162
Hearing dates: 14 June 2018
Decision date: 27 July 2018
Before: Payne JA at [1];
Emmett AJA at [3];
Simpson AJA at [40]
Decision:
Dismiss the summons and cross summons with costs.

Catchwords:
PROCEDURE – application for security for costs against company – primary judge declined to admit affidavit – whether affidavit should be admitted as evidence of impecuniosity – whether affidavit satisfied s 27A of the Oaths Act 1900 (NSW) and r 35.7 of the Uniform Civil Procedure Rules 2005 (NSW)
PROCEDURE – application for security for costs against natural person – whether second plaintiff was ordinarily resident outside Australia
Legislation Cited: Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth))
Oaths Act 1900 (NSW), s 27A
Uniform Civil Procedure Rules 2005 (NSW), rr 35.7, 42.21
Cases Cited: House v The King (1936) 55 CLR 499
Category: Principal judgment
Parties: GWM Goldmining Pty Ltd (Applicant/First Cross Respondent)
Terrance Robert Frerk (Respondent/Cross Applicant)
Xin Tian (Second Cross Respondent)
Representation:
Counsel:
S Bell (Applicant/Cross Respondents)
J O’Sullivan (Respondents/Cross Applicant)
Solicitors:
Lloyd Truman Sadiq Solicitors (Applicant/Cross Respondents)
StreeterLaw (Respondents/Cross Applicant)

File Number(s): 2017/382506
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

1 December 2017

Before:

Russell DCJ

File Number(s):

2016/152684

HEADNOTE

[This headnote is not to be read as part of the judgment]

GWM Goldmining Pty Ltd (GWM) and Mr Xin Tian sought declarations in the District Court that several agreements entered into between GWM and Mr Terrance Frerk are rescinded and void ab initio. By amended notice of motion filed on 21 November 2017, Mr Frerk sought orders under r 42.21(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that GWM and Mr Tian provide security for his costs of the proceedings up to trial. Mr Frerk submitted that there was reason to believe that GWM would be unable to pay Mr Frerk’s costs of the proceedings if ordered to do so, and that Mr Tian was ordinarily resident outside Australia.

At the hearing of the notice of motion, GWM sought to rely on an affidavit expressed to have been affirmed by Ms Mei Qu on 21 November 2017 before Ms Salina Saqid (the Affidavit). Ms Qu could not read or speak English. However, the jurat of the Affidavit contained a statement that Ms Saqid (who was Ms Qu’s solicitor) was fluent in English and Mandarin, and that prior to Ms Qu affirming the affidavit Ms Qu had read it to her in Mandarin and that Ms Qu appeared to understand. The primary judge rejected the Affidavit on the ground that it appeared to have been affirmed by a person who said that she did not understand or read English. His Honour found that it was unsatisfactory that a solicitor acting for a party also acted as the translator and that it…

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.

Keep reading for free

Create a free CaseChat account to read GWM Goldmining Pty Ltd v Frerk and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWCA 162
Decision Date: 27 July 2018

CaseChat Overview and Summary

GWM Goldmining Pty Ltd (the applicant) sought security for costs against the first respondent, Mr Frerk, and the second respondent, GWM Goldmining Pty Ltd (the second plaintiff). The primary judge had declined to admit an affidavit tendered by the applicant, which sought to establish the impecuniosity of the second plaintiff, and had also considered whether the second plaintiff was ordinarily resident outside Australia. The matter proceeded to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge erred in refusing to admit the applicant's affidavit as evidence of the second plaintiff's impecuniosity, and whether that affidavit satisfied the requirements of s 27A of the *Oaths Act 1900* (NSW) and r 35.7 of the *Uniform Civil Procedure Rules 2005* (NSW). Secondly, the court had to consider whether the second plaintiff, a natural person, was ordinarily resident outside Australia for the purposes of an application for security for costs.

The Court of Appeal held that the primary judge had correctly exercised their discretion in refusing to admit the affidavit. The affidavit was found to be deficient in its evidentiary basis for establishing impecuniosity and did not comply with the formal requirements of the *Oaths Act* and the *Uniform Civil Procedure Rules*. Furthermore, the court found that the evidence did not establish that the second plaintiff was ordinarily resident outside Australia. Consequently, the court dismissed both the summons and the cross-summons.

Orders

Orders of the court

Dismiss the summons and cross summons with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	GWM Goldmining Pty Ltd v Frerk [2018] NSWCA 162
Hearing dates:	14 June 2018
Decision date:	27 July 2018
Before:	Payne JA at [1]; Emmett AJA at [3]; Simpson AJA at [40]
Decision:	Dismiss the summons and cross summons with costs.
Catchwords:	PROCEDURE – application for security for costs against company – primary judge declined to admit affidavit – whether affidavit should be admitted as evidence of impecuniosity – whether affidavit satisfied s 27A of the Oaths Act 1900 (NSW) and r 35.7 of the Uniform Civil Procedure Rules 2005 (NSW) PROCEDURE – application for security for costs against natural person – whether second plaintiff was ordinarily resident outside Australia
Legislation Cited:	Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth)) Oaths Act 1900 (NSW), s 27A Uniform Civil Procedure Rules 2005 (NSW), rr 35.7, 42.21
Cases Cited:	House v The King (1936) 55 CLR 499
Category:	Principal judgment
Parties:	GWM Goldmining Pty Ltd (Applicant/First Cross Respondent) Terrance Robert Frerk (Respondent/Cross Applicant) Xin Tian (Second Cross Respondent)
Representation:	Counsel: S Bell (Applicant/Cross Respondents) J O’Sullivan (Respondents/Cross Applicant) Solicitors: Lloyd Truman Sadiq Solicitors (Applicant/Cross Respondents) StreeterLaw (Respondents/Cross Applicant)
File Number(s):	2017/382506
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 1 December 2017 Before: Russell DCJ File Number(s): 2016/152684