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Lloyd v Veterinary Surgeons Investigating Committee

Lloyd v Veterinary Surgeons Investigating Committee

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Case Copied 28 October 2005 17 min read

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Reported Decision:
56 ACSR 35
64 NSWLR 244

Court of Appeal

CITATION:
WINNOTE PTY LIMITED v PAGE & ORS [2005] NSWCA 362

HEARING DATE(S):
30 September 2005

JUDGMENT DATE:

28 October 2005

JUDGMENT OF:
Mason P at 1

DECISION:
Application dismissed with costs.

CATCHWORDS:
COSTS - security for costs - where a corporate appellant is in liquidation - s1335(1) Corporations Act 2001 (Cth) - applicability to appeals - whether plaintiff includes appellant - Pt 51 r16 Supreme Court Rules - whether power to order security is engaged - special circumstances - mere impecuniosity - presence of a litigation funder - where co-appellant is solvent - highly likely that costs will be ordered against both appellants - refusal of discretion - delay. (D)

LEGISLATION CITED:
Mines Act 1958 (Vic)
Companies Act 1862 (UK)
Supreme Court Rules Pt 51 r16
Constitution s109
Corporations Act 2001 (Cth) s1335(1)

CASES CITED:
Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301
Fiduciary Limited v Morning Star Research Pty Ltd [2004] NSWSC 664, 208 ALR 564
Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd [2005] NSWCA 83
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 147
Gemelle v Commissioner of Taxation (1982) 7 ACLR 3
Gould v Vaggelas (1985) 157 CLR 215
Harper v Ariadne Aust Ltd [1984] 2 Qd R 523
Harrington Services Pty Ltd (In liq) v Harrington [2003] NSWCA 89
In Re Consolidated Southrand Mines Deep Limited (1909) WN 66
In Re Diamond Fuel Company (1879) 13 Ch D 400
In Re Photographic Artists Co-Operative Supply Association (1883) 23 Ch D 370
Interwest Ltd v Tri-Continental Corporation Ltd (1991) 5 ACSC 621
J & M O'Brien Enterprises Pty Ltd v The Shell Company of Australia Ltd (1983) 7 ACLR 790
John Bishop (Caterers) Ltd v National Union Bank Ltd [1973] 1 All ER 707
Johnson v Gore Wood & Co [2002] AC 1
Maples v Hughes [2002] NSWSC 617
Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82
Pearson v Naydler [1977] 1 WLR 899
Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240
Roach v Page & Ors (No 1) [2003] NSWSC 722
Sinclair v Glasgow Corporation (1904) 6 F (Ct of Sess) 818
Strata Consolidated (Australia) Pty Ltd v Bradshaw [2000] NSWCA 114 (Registrar Jupp) affirmed on appeal [2000] NSWCA 225
Thomas v D'Arcy [2005] QCA 68
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143
Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300

PARTIES:
Winnote Pty Limited (In liquidation) & Anor v Brian John PAGE & Ors

FILE NUMBER(S):
CA 41095/2004

COUNSEL:
Claimants: R Darke SC
Opponent: Dr A S Bell

SOLICITORS:
Claimants: Maurice Blackburn Cashman
Opponent: Allens Arthur Robinson

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 20950/1997

LOWER COURT JUDICIAL OFFICER:
Sperling J

CA 41095/2004
SC 20950/1997

MASON P
Friday 28 October 2005

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: [2005] NSWCA 362
Decision Date: 28 October 2005

CaseChat Overview and Summary

In *Lloyd v Veterinary Surgeons Investigating Committee*, the applicant, a company in liquidation, sought to appeal a decision. The respondent, the Veterinary Surgeons Investigating Committee, applied for security for costs against the applicant. The appeal was heard by Mason P in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the applicant, being a company in liquidation, was required to provide security for costs under section 1335(1) of the *Corporations Act 2001* (Cth) in the context of an appeal. This also involved determining whether the Supreme Court Rules, specifically Part 51 rule 16, which grants the court power to order security for costs, was engaged and whether special circumstances existed to warrant such an order, considering factors such as the applicant's impecuniosity, the presence of a litigation funder, and the solvency of a co-appellant.

Mason P considered the application of section 1335(1) of the *Corporations Act 2001* to appeals, noting that the provision applies to "any proceedings" and that an appeal is a proceeding. His Honour found that the mere fact of impecuniosity, even in the context of a company in liquidation, did not automatically necessitate an order for security for costs, particularly where a litigation funder was involved. The Court also considered the potential for costs to be ordered against both appellants and the delay in the application. Ultimately, Mason P exercised his discretion to refuse the application for security for costs.

The application for security for costs was dismissed, and the respondent was awarded its costs.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	WINNOTE PTY LIMITED v PAGE & ORS [2005] NSWCA 362
HEARING DATE(S):	30 September 2005
JUDGMENT DATE:	28 October 2005
JUDGMENT OF:	Mason P at 1
DECISION:	Application dismissed with costs.

CATCHWORDS:	COSTS - security for costs - where a corporate appellant is in liquidation - s1335(1) Corporations Act 2001 (Cth) - applicability to appeals - whether plaintiff includes appellant - Pt 51 r16 Supreme Court Rules - whether power to order security is engaged - special circumstances - mere impecuniosity - presence of a litigation funder - where co-appellant is solvent - highly likely that costs will be ordered against both appellants - refusal of discretion - delay. (D)
LEGISLATION CITED:	Mines Act 1958 (Vic) Companies Act 1862 (UK) Supreme Court Rules Pt 51 r16 Constitution s109 Corporations Act 2001 (Cth) s1335(1)
CASES CITED:	Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 Fiduciary Limited v Morning Star Research Pty Ltd [2004] NSWSC 664, 208 ALR 564 Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd [2005] NSWCA 83 FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 147 Gemelle v Commissioner of Taxation (1982) 7 ACLR 3 Gould v Vaggelas (1985) 157 CLR 215 Harper v Ariadne Aust Ltd [1984] 2 Qd R 523 Harrington Services Pty Ltd (In liq) v Harrington [2003] NSWCA 89 In Re Consolidated Southrand Mines Deep Limited (1909) WN 66 In Re Diamond Fuel Company (1879) 13 Ch D 400 In Re Photographic Artists Co-Operative Supply Association (1883) 23 Ch D 370 Interwest Ltd v Tri-Continental Corporation Ltd (1991) 5 ACSC 621 J & M O'Brien Enterprises Pty Ltd v The Shell Company of Australia Ltd (1983) 7 ACLR 790 John Bishop (Caterers) Ltd v National Union Bank Ltd [1973] 1 All ER 707 Johnson v Gore Wood & Co [2002] AC 1 Maples v Hughes [2002] NSWSC 617 Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82 Pearson v Naydler [1977] 1 WLR 899 Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240 Roach v Page & Ors (No 1) [2003] NSWSC 722 Sinclair v Glasgow Corporation (1904) 6 F (Ct of Sess) 818 Strata Consolidated (Australia) Pty Ltd v Bradshaw [2000] NSWCA 114 (Registrar Jupp) affirmed on appeal [2000] NSWCA 225 Thomas v D'Arcy [2005] QCA 68 Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300
PARTIES:	Winnote Pty Limited (In liquidation) & Anor v Brian John PAGE & Ors
FILE NUMBER(S):	CA 41095/2004
COUNSEL:	Claimants: R Darke SC Opponent: Dr A S Bell
SOLICITORS:	Claimants: Maurice Blackburn Cashman Opponent: Allens Arthur Robinson

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20950/1997
LOWER COURT JUDICIAL OFFICER:	Sperling J