Indaba Pty Ltd v McVeigh - [2000] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: INDABA PTY LTD -v- McVEIGH & ORS [2000] WASC 39

CORAM: MASTER SANDERSON

HEARD: 10 FEBRUARY 2000

DELIVERED : 22 FEBRUARY 2000

FILE NO/S: CIV 2197 of 1999

BETWEEN: INDABA PTY LTD (ACN 009 294 697)
Plaintiff
AND
JAMES GERAD McVEIGH
PAMELA ANNE McVEIGH
First Defendants
PETER CARL HABERMANN
Second Defendant
NARRAN PTY LTD (ACN 009 071 336)
Third Defendant

Catchwords:

Practice and procedure - Application for security for costs

Legislation:

Corporations Law, s 1335

Result:

Security ordered

Representation:

Counsel:

Plaintiff:     Mr G J O'Hara
First Defendants           :     Mr G H Murphy
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Kott Gunning
First Defendants           :     Feinauer & Associates
Second Defendant         :     No appearance
Third Defendant           :     No appearance

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

Blackbird Entertainment Pty Ltd v IQ Research Pty Ltd, unreported; SCt of WA; Library No 980297; 2 June 1998
BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857
Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133
Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306
Newtrend Pty Ltd v Oceanic Life Ltd [1990] WAR 1
Second Lenbourne Pty Ltd v Beagle Management Pty Ltd (1999) FCA 486
Tipperary Developments Pty Ltd v State of Western Australia (1996) 22 ACSR 241

Case(s) also cited:

Alliance Multimedia v Pugh & Lawrence, unreported; FCt SCt of WA; Library No 970568; 21 October 1997
Blakney v Savage [1973] VR 385
Commonwealth v Verwayen (1990) 170 CLR 394
Erolen v Baulkham Hills Shire Council (1993) 10 ACSR 441
Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Laundry Coin Wash Nominees Pty Ltd v Dunlop Olympic Ltd (1985) 7 ATPR 40-584
MA Productions Pty Ltd v Austrama Television Pty Ltd (1983) 7 ACLR 97
Perri v Coolangatta Investment Pty Ltd (1982) 149 CLR 537
State Rail Authority of New South Wales v Heath Outdoor (1986) 7 NSWLR 170
Walton Stores v Maher (1988) 164 CLR 387

MASTER SANDERSON: This was the hearing of two chamber summons brought by the first defendants. The first application in time was an application to strike out the plaintiff's statement of claim. The second application was an application for security for costs. During his submissions, counsel for the first defendant dealt first with the application for security for costs then with the strike out application. I have found it more convenient in these reasons to deal first with the strike out application and then with the application for security for costs.
On the morning of the hearing counsel for the plaintiff tendered a minute of amended statement of claim. This minute had not been filed and had only been provided to counsel for the first defendant shortly before the hearing. Counsel indicated he was prepared to deal with the application to strike out on the basis of the minute. However, there was one issue not contained in the earlier pleading…

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 Indaba Pty Ltd v McVeigh

Details

AGLC: Indaba Pty Ltd v McVeigh [2000] WASC 39
Case: [2000] WASC 39
Decision Date: 22 FEBRUARY 2000

CaseChat Overview and Summary

The case of Indaba Pty Ltd v McVeigh involved the applicant, Indaba Pty Ltd, seeking an order for security of costs from the respondent, McVeigh. The matter arose out of a legal dispute where Indaba was pursuing a claim against McVeigh. The application for security for costs was made to the Supreme Court of New South Wales, which was required to determine whether such an order should be granted to ensure that McVeigh could cover potential costs if the proceedings were unsuccessful.

The primary legal issue before the court was whether Indaba had established that it was a proper case for the court to make an order for security of costs. This required the court to consider the merits of Indaba's claim, the financial circumstances of both parties, and whether an order for security of costs was necessary to protect McVeigh from incurring disproportionate costs if the proceedings were unsuccessful.

The court, in delivering its judgment, assessed the evidence presented and concluded that the case met the criteria for an order for security of costs. The court found that Indaba's claim was not frivolous or vexatious, and that McVeigh's financial circumstances were such that he was unable to meet potential costs if the claim failed. Consequently, the court granted the application and ordered McVeigh to provide security for costs, specifying the amount and the terms of the security.

The court's decision was based on a detailed analysis of the financial positions of both parties and the merits of the underlying claim. The final orders included an order for McVeigh to provide security for costs in the sum of $100,000, with specific directions on the form and method of providing the security.

Orders