Lawless v MacKendrick [No 3] - [2011] WASC 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LAWLESS -v- MACKENDRICK [No 3] [2011] WASC 298

CORAM: KENNETH MARTIN J

HEARD: 19 SEPTEMBER 2011

DELIVERED : 31 OCTOBER 2011

FILE NO/S: CIV 1146 of 2006

BETWEEN: KEVIN GERARD LAWLESS
Plaintiff
AND
ALASTAIR MACKENDRICK
PAMELA ALISON GABRIELS
First Defendants
CHRISTOPHER DEREK BLAKE
Second Defendant
THE KING AND I PTY LTD (IN LIQ)
Third Defendant
WATERDALE ENTERPRISES PTY LTD
Fourth Defendant
PHILLIP JOHN MULCAHY
Fifth Defendant

Catchwords:

Security for costs application - Fifth defendant - Same cause of action pursued against third defendant - Assigned cause of action to plaintiff as individual by liquidator - Stay as against fifth defendant - Stay limited to action against fifth defendant

Legislation:

Nil

Result:

Security ordered for fifth defendant only - Action stayed in absence of security ordered as against fifth defendant only

Category: B

Representation:

Counsel:

Plaintiff:     Mr T Galic
First Defendants           :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     Mr M J Sims

Solicitors:

Plaintiff:     Galic & Co
First Defendants           :     Stables Scott
Second Defendant         :     Jackson McDonald
Third Defendant           :     DLA Piper Australia
Fourth Defendant          :     Sparke Helmore
Fifth Defendant            :     Chew & Matthews

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

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Lawless v Mackendrick [No 2] [2008] WASC 15

KENNETH MARTIN J: Under order 7 of my orders made 14 July 2011, each of the five defendants in this action were allowed until 28 July 2011 to bring an application (including the filing of any affidavit materials and written outlines of submissions in support) against the plaintiff for security for their costs of this action.
Although the leave was sought by and granted to all defendants, in the end only the fifth defendant pursued an application (dated 28 July 2011) against the plaintiff seeking security.
The application is opposed by the plaintiff. However, the quantum of security sought by the fifth defendant in the amount of $63,500 has not been challenged as to being a reasonable assessment of taxed costs for the fifth defendant, in the event the matter was taken from this point to trial and the fifth defendant was ultimately successful in defeating the plaintiff's negligence claims brought against him and in obtaining an orthodox order for his taxed costs 'following the event'.
The matter was argued at a special appointment on 19 September 2011. Each side relied upon affidavit materials and written submissions filed earlier for the contested application.

Evidentiary materials

The fifth defendant relied upon an affidavit affirmed by his solicitor, Michael James Sims, of 28 July 2011, seeking to establish the plaintiff's likely impecuniosity in the event of his failure at the trial.
The fifth defendant grounded his security application upon O 25 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). It was accepted that…

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 Lawless v MacKendrick [No 3]

Details

AGLC: Lawless v MacKendrick [No 3] [2011] WASC 298
Case: [2011] WASC 298
Decision Date: 31 OCTOBER 2011

CaseChat Overview and Summary

The case of Lawless v MacKendrick [No 3] involved a complex web of defendants and claims, with the plaintiff, Lawless, pursuing a cause of action against multiple defendants. The matter before the court was an application for security for costs against the fifth defendant, MacKendrick. The plaintiff had already assigned the cause of action against the third defendant to themselves as an individual, following the appointment of a liquidator. The central issue before the court was whether the stay of proceedings against the fifth defendant, MacKendrick, should extend to the action against the third defendant, which had been assigned to the plaintiff individually.

The court needed to determine the extent to which the stay of proceedings against the fifth defendant should apply. Specifically, it had to decide if the stay should encompass the action against the third defendant, which had been assigned to the plaintiff as an individual. The court considered the implications of the assignment of the cause of action against the third defendant and the effect of the liquidator's role in the proceedings. The court's reasoning was grounded in the principles of procedural fairness and the need to ensure that the stay of proceedings did not unfairly prejudice the plaintiff's rights.

The court held that the stay of proceedings against the fifth defendant should be limited to the action against that defendant. It did not extend to the action against the third defendant, which had been assigned to the plaintiff individually. The court found that the stay should be narrowly construed to prevent any unintended consequences that might prejudice the plaintiff's rights. The decision ensured that the plaintiff could pursue the action against the third defendant without the constraints imposed by the stay against the fifth defendant.

The final orders of the court were that the stay of proceedings against the fifth defendant, MacKendrick, was limited to the action against that defendant and did not extend to the action against the third defendant, which had been assigned to the plaintiff individually. This ruling allowed the plaintiff to continue with the litigation against the third defendant while maintaining the stay against the fifth defendant.

Orders