LOCKE -v- LEPPLE PTY LTD [2007] WADC 7

Link to Appeal :

[2007] WASCA 170

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 7
Case No:	CIV:987/2006	Heard:	7 FEBRUARY 2007
Coram:	MULLER DCJ	Delivered:	13/02/07
Location:	PERTH
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed
PDF Version

Parties:	MAXWELL THOMAS LOCKE LEPPLE PTY LTD
Catchwords:	Security for costs Appeal against decision of Deputy Registrar ordering plaintiff to provide security Plaintiff assigned cause of action by company in liquidation Plaintiff impecunious and unable to provide security Whether plaintiff a nominal party only Whether plaintiff obliged to obtain security from liquidator or family
Legislation:	Nil
Case References:	Bride as Trustees of the Pinwernying Family Trust v The Australian Bank Ltd, unreported; FCt SCt of WA; BC9904150; 2 July 1999 His Grace Metropolitan Petar & Ors v Macedonian United Society of Western Australia Incorporated & Ors [2007] WASC 19 Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1 Coyne v West Australian Newspapers Ltd (No 1) (1996) 15 WAR 51 Drumdurno Pty Ltd v Braham (1982) 42 ALR 563 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Hunt v Knabe (No 2) (1992) 8 WAR 96 John Arnold's Surf Shop Pty Ltd (In Liq) v Heller Factors Pty Ltd and Allert (1979) 22 SASR 20 M A Productions Pty Ltd v Austrama Television Pty Ltd & Anor (1982) 7 ACLC 97 McSharry v Railway Commissioners (1897) 18 LR (NSW) 33 Memuto Pty Ltd v Lissenden (1983) 8 ACLR 364 Pacific Acceptance Corporation v Forsyth (1967) 2 NSWR 402 Riot Nominees Pty Ltd v Suzuki Australia Pty Ltd (1981) 34 ALR 653 Semler v Murphy [1968] Ch 183

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : LOCKE -v- LEPPLE PTY LTD [2007] WADC 7 CORAM : MULLER DCJ HEARD : 7 FEBRUARY 2007 DELIVERED : 14 FEBRUARY 2007 FILE NO/S : CIV 987 of 2006 BETWEEN : MAXWELL THOMAS LOCKE

Plaintiff

AND

LEPPLE PTY LTD

Defendant

Catchwords:

Security for costs - Appeal against decision of Deputy Registrar ordering plaintiff to provide security - Plaintiff assigned cause of action by company in liquidation - Plaintiff impecunious and unable to provide security - Whether plaintiff a nominal party only - Whether plaintiff obliged to obtain security from liquidator or family

Legislation:

Nil

Result:

Appeal allowed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr P A Kyle

Defendant : Mr A P S Hershowitz

Solicitors:

Plaintiff : Kyle & Company

Defendant : Griffiths & Godeke

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

Bride as Trustees of the Pinwernying Family Trust v The Australian Bank Ltd, unreported; FCt SCt of WA; BC9904150; 2 July 1999
His Grace Metropolitan Petar & Ors v Macedonian United Society of Western Australia Incorporated & Ors [2007] WASC 19
Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC…

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] WADC 7
Decision Date: 14 FEBRUARY 2007

CaseChat Overview and Summary

The appeal was brought by Lepple Pty Ltd against a decision of the Deputy Registrar of the Federal Court, which required the plaintiff, Locke, to provide security for costs. Locke had been assigned a cause of action by a company that had been placed in liquidation. The plaintiff was impecunious and unable to provide the required security. The primary issue for the court was whether the plaintiff was a nominal party only and if so, whether they were obliged to obtain security from the liquidator or their family.

The court held that Locke was indeed a nominal party only, as the real party interested was the company in liquidation. Given this, the court considered whether Locke was obliged to obtain security from the liquidator or their family. The court found that Locke, as the nominal party, was not required to obtain security from the liquidator or their family, as the obligation to provide security for costs fell on the real party interested. The court concluded that the Deputy Registrar's decision to require Locke to provide security for costs was erroneous.

As a result, the appeal was allowed. The court set aside the decision of the Deputy Registrar and remitted the matter to the Registrar for further consideration in light of the court's findings. The orders made by the court were to allow the appeal and remit the matter to the Registrar.

Orders

Orders of the court

Appeal allowed

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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