GWM Goldmining Pty Ltd v Frerk

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.