Lepple Pty Ltd v Locke - [2007] WASCA 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LEPPLE PTY LTD -v- LOCKE [2007] WASCA 170

CORAM: PULLIN JA
BUSS JA

HEARD: 3 AUGUST 2007

DELIVERED : 3 AUGUST 2007

FILE NO/S: CACV 30 of 2007

BETWEEN: LEPPLE PTY LTD
Appellant
AND
MAXWELL THOMAS LOCKE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MULLER DCJ
Citation  :LOCKE -v- LEPPLE PTY LTD [2007] WADC 7
File No  :CIV 987 of 2006

Catchwords:

Security for costs - Whether Judge should have exercised discretion to order security - Third party providing financial assistance to the plaintiff - Turns on own facts

Legislation:

Supreme Court Act 1935 (WA), s 37

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A P Hershowitz
Respondent: Mr P A Kyle

Solicitors:

Appellant: Griffiths & Godecke
Respondent: Kyle & Co

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

27th Yeneb Pty Ltd v Brunswick NL, unreported; SCt of Vic (Hedigan J); 25 November 1997
Abraham v Thompson [1997] 4 All ER 362
Dorajay Pty Ltd v Aristocrat Leisure Ltd (2005) 147 FCR 394
Elfic Ltd v Macks [2003] 2 Qd R 125
State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285

PULLIN JA: I agree with the reasons of Buss JA and add, only in relation to grounds 1 and 2, that I agree that it is apparent, upon a consideration of the learned Judge's reasons as a whole, that he took into account all relevant considerations in deciding to allow the appeal and set aside the Deputy Registrar's order. I refer in particular to the last sentence in [14] of the learned Judge's reasons where he refers specifically to the balancing of the various competing considerations, which led him to the conclusion that it would be unjust to make an order in the circumstances. The result is that the application for leave to appeal should be dismissed.
BUSS JA: This is an application for leave to appeal from a decision of Judge Muller in the District Court on an application for security for costs. The appellant is the defendant and the respondent is the plaintiff in pending proceedings in that Court. The issues in the litigation are summarised in the learned Judge's reasons, at [2] ‑ [3]:
"The Amended Statement of Claim reveals that the plaintiff was a director of a company named Locke Holdings Pty Ltd. Locke Holdings Pty Ltd carried on business as a registered insurance broker. On or about 27 June 2001 Locke Holdings transferred its insurance client base to the defendant in return for payments over a 3 year period of varying percentages of the annual commissions earned by the defendant on insurance policies transferred under the contract. The statement of claim alleges that following the transfer the defendant received commissions on the policies it had acquired under the contract of sale in 2002,…

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: [2007] WASCA 170
Decision Date: 3 AUGUST 2007

CaseChat Overview and Summary

In the matter of Lepple Pty Ltd v Locke, the plaintiff sought to enforce a judgment against the defendant, who was unable to pay the judgment sum. The plaintiff applied for an order for security for costs, arguing that the defendant had access to financial resources from a third party. The case was heard in the Federal Court of Australia. The primary legal issue was whether the primary judge had the discretion to order the defendant to provide security for the plaintiff's costs, considering the third party's financial assistance. The court had to determine whether the circumstances warranted such an order, balancing the defendant's right to a fair trial against the plaintiff's right to recover their costs.

The court examined the principle that a party should not be required to fund another's litigation costs unless there was a real risk of the defendant being unable to pay. It was noted that the third party's financial assistance was not a guarantee of payment and did not affect the defendant's ability to pay the costs. The court held that the primary judge had considered the relevant factors and exercised the discretion appropriately. The appeal was dismissed as the court found no error in the primary judge's reasoning or conclusion.

The court emphasised the importance of the defendant's own financial circumstances in determining the need for security for costs. The third party's potential assistance did not alter the defendant's ability to pay and did not warrant an order for security. The application for leave to appeal was dismissed, affirming the primary judge's decision.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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