Large v Djamirze - [2019] NSWSC 716

Supreme Court

New South Wales

Medium Neutral Citation: Large v Djamirze [2019] NSWSC 716
Hearing dates: 7 June 2019
Decision date: 14 June 2019
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Defendant’s Notice of Motion filed 12 April 2019 is dismissed with costs

Catchwords: COSTS – security for costs – relevant factors – first plaintiff resides in California – second and third plaintiffs are incorporated in British Columbia – security already provided in an amount exceeding likely cost of enforcing a costs order in those jurisdictions – application made after matter set down for trial – plaintiffs appear to have good prospects of success
Legislation Cited: California Civil Procedure Code
Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Daya v CX Reinsurance Company Ltd [2012] NSWSC 1213
Barton v Minister for Foreign Affairs (1984) 2 FCR 463
Carrey v ACP Publishing Pty Ltd (Supreme Court (Vic), Hedigan J, 11 December 1997, 6 February 1998, unrep)
Connop v Varena Pty Ltd [1984] 1 NSWLR 71
Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2011] NSWCA 84
In the matter of SCW (Express Detailing) Pty Ltd [2011] NSWSC 688
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Mercator Property Consultants Pty Ltd v Sumampow (2nd D Cal Ct App, B236491, 5 March 2012)
Texts Cited: Practice Note SC Eq 3
Category: Procedural and other rulings
Parties: Corey Large (First Plaintiff/Respondent)
308 Enterprises Inc (Second Plaintiff/Respondent)
ILF Productions Inc (Third Plaintiff/Respondent)
ILF AU Films Pty Ltd (Fourth Plaintiff/Respondent)
ILF AU Productions Pty Ltd (Fifth Plaintiff/Respondent)
Alexander Djamirze (Defendant/Applicant)
Representation:
Counsel:
L T Livingston (Plaintiffs/Respondents)
H Altan (Defendant/Applicant)
Solicitors:
DLA Piper Australia (Plaintiffs/Respondents)
Heffernan Legal (Defendant/Applicant)

File Number(s): SC 2018/54861

Judgment

On 11 July 2018 the plaintiffs consented to an order that they provide security for the costs of the defendant in the sum of $60,000 to be paid into Court:

as to $30,000 within 14 days;

as to a further $30,000 by 31 August 2018.

Now, by Notice of Motion filed on 12 April 2019 the defendant seeks further security in the sum of $240,635.
The first plaintiff, Mr Corey Large, resides in California. The second and third plaintiffs are incorporated in British Columbia. The fourth and fifth plaintiffs are incorporated in Australia but lack the means to meet a costs order. There is therefore no dispute that the jurisdiction to order further security is enlivened.
In my opinion, the application for security should nonetheless be refused because:

any costs order obtained by the defendant could be enforced in California or British Columbia for an amount likely to be less than the $60,000 security already provided;

the application is made well after the matter was set down for hearing and a relatively short time before the hearing; and

the plaintiffs’ case appears to be strong.

Background

Mr Large is the brother in law of the defendant, Mr Alexander Djamirze.
Mr Large is a movie…

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: [2019] NSWSC 716
Decision Date: 14 June 2019

CaseChat Overview and Summary

In this case, the plaintiffs, including a natural person and two corporations, sought damages against the defendant, alleging breaches of fiduciary duty, deceit, and conspiracy. The matter was heard in the Supreme Court of New South Wales. The dispute centred on the defendant's application for the plaintiffs to provide security for costs, which the plaintiffs opposed. The plaintiffs argued that security should not be required because they had already provided security in an amount exceeding the likely cost of enforcing a costs order in their respective jurisdictions.

The court considered several factors in determining whether to order the plaintiffs to provide security for costs. Key factors included the plaintiffs' ability to pay costs, the likelihood of the plaintiffs succeeding in the action, and the potential prejudice to the defendant if security were not ordered. The court found that the plaintiffs had already provided security in an amount exceeding the likely cost of enforcing a costs order in their jurisdictions, and they appeared to have good prospects of success. The plaintiffs' first residence in California, and the second and third plaintiffs being incorporated in British Columbia, did not, in the court's view, warrant an order for additional security.

Based on these findings, the court held that ordering the plaintiffs to provide further security for costs was not necessary. The application for security was dismissed. The court did not make any orders regarding costs.

Orders