Hera Project Pty Ltd v Bisognin - [2017] VSC 112

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2016 03457

HERA PROJECT PTY LTD (ACN 163 685 041)	Plaintiff
v
GINO ANDREW BISOGNIN AND LEAH JOAN BISOGNIN	Defendants

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JUDGE:	Judicial Registrar Matthews
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2017
DATE OF JUDGMENT:	17 March 2017
CASE MAY BE CITED AS:	Hera Project Pty Ltd v Bisognin & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 112

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PRACTICE AND PROCEDURE – Costs – Security for costs – Enlivening of jurisdiction – Discretionary factors to be taken into account – Delay – Proceeding listed for imminent trial on expedited basis – Discretionary balance against ordering security for costs against plaintiff – Corporations Act 2001 (Cth), s 1335(1) – Supreme Court (General Civil Procedure) Rules 2015, r 62.02 – US Realty Investments LLC No. 1 & Ors v Need [2013] VSC 590 – Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577 – Colmax Glass Pty Ltd v Polytrade Pty Ltd [2013] VSC 311.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J J Whelen	Russell Kennedy
For the Defendants	Mr J A Ribbands with Mr W G Stark	TF Grundy

JUDICIAL REGISTRAR:

Introduction

By summons filed 8 March 2017, the defendants, Gino Bisognin and Leah Bisognin, seek security for their costs of this proceeding in the amount of $250,000 (being the costs of pre-trial preparation and the hearing) and an immediate stay until security is provided. The defendants rely on an affidavit from their solicitor, Terence Francis Grundy, sworn 7 March 2017 (‘Grundy Affidavit’).

The plaintiff, Hera Project Pty Ltd, opposes the application and relies on an affidavit from its solicitor, Leonard Adrian Warren of Russell Kennedy, affirmed 10 March 2017 (‘Warren Affidavit’).

The defendants’ application has been referred to me for hearing and determination pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), by order made on the Court’s own motion on 8 March 2017.

Given the timing of this application in the context of a trial fixed for 27 March 2017, the Court has endeavoured to hear and determine the application quickly. The parties both filed affidavit material and made submissions, having also provided written outlines on the morning of the hearing. The Court has been assisted by both parties’ counsel in this regard. I have read all of this material and have taken it into account, however given the time constraints I have not referred to it in detail. I have considered and dealt with all of the discretionary factors raised by the parties.

Applicable Law

The principles concerning an application for security for costs are well established and are referred to in many decisions of this Court, including US Realty Investments LLC No.1 & Ors v Need [2013] VSC 590 (‘US Realty’) at paragraphs [18]-[38]. For convenience I adopt that summary. Rule 62.02 of the Rules and section 1335 of…

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: [2017] VSC 112
Decision Date: 17 March 2017

CaseChat Overview and Summary

Hera Project Pty Ltd brought an action against Bisognin for breach of contract, seeking damages and an injunction. The dispute centred around the terms of a contract between the parties and the performance of obligations under that contract. The matter was heard in the Supreme Court of Victoria. The primary legal issue for the court was whether Hera Project was entitled to an order for security for costs against Bisognin. The court had to consider whether the defendant's delay in filing a defence enlivened the court's discretion to order security for costs under the Supreme Court (General Civil Procedure) Rules 2015.

The court noted that delay in filing a defence is a discretionary factor to be taken into account when deciding whether to order security for costs. However, the court also considered other discretionary factors, including the likelihood of the plaintiff succeeding in the proceeding, the complexity of the case, and the financial position of the parties. In this case, the court found that the delay was not sufficiently egregious to warrant the ordering of security for costs against Bisognin. The court also noted that the proceeding was listed for imminent trial on an expedited basis, which was a factor that weighed against ordering security for costs.

The court concluded that the discretionary balance was against ordering security for costs against Bisognin. The court found that while delay was a factor to be considered, it was not the only factor and that other considerations, such as the imminent trial date, outweighed the delay. The court also noted that ordering security for costs against a defendant could have a significant impact on their ability to defend the proceeding, and that this should be taken into account when exercising the court's discretion.

No order for security for costs was made against Bisognin.

Orders