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LPH Developments Pty Ltd v Jameson Moore Pty Ltd

LPH Developments Pty Ltd v Jameson Moore Pty Ltd

Case [2015] WASC 416 4 November 2015

Security for Costs

Limitation Periods

Overlapping Claim and Counterclaim

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LPH DEVELOPMENTS PTY LTD -v- JAMESON MOORE PTY LTD [2015] WASC 416

CORAM: BEECH J

HEARD: ON THE PAPERS

DELIVERED : 4 NOVEMBER 2015

FILE NO/S: CIV 2343 of 2015

BETWEEN: LPH DEVELOPMENTS PTY LTD (ACN 166 701 122)
Plaintiff
AND
JAMESON MOORE PTY LTD (ACN 008 705 379)
Defendant

Catchwords:

Practice and procedure - Security for costs - Factors relevant to discretion - Overlapping claim and counterclaim - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: No appearance (on the papers)
Defendant : No appearance (on the papers)

Solicitors:

Plaintiff: Norton Rose Fulbright Australia
Defendant : Mettam Legal

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

Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2014] VSC 154
BBC Nominees (WA) Pty Ltd v Yangebup Developments Pty Ltd [2008] WASC 81
Concrete Constructions Pty Ltd v Dalma Formwork Pty Ltd (Administrator Appointed) [1999] NSWCA 16
Dalma Formwork Pty Ltd (Administrator Appointed) v Concrete Constructions Group Ltd [1998] NSWSC 472
Mila Properties Pty Ltd v Caldwell [2009] WASC 282
Momentum Mortgages Ltd & Equity Trustees v Elmowy [2010] NSWSC 950
Public Transport Ticketing Corporation v Integrated Transit Solutions Ltd [2009] NSWSC 54
Swansdale Pty Ltd v Whitecrest Pty Ltd [2010] WASCA 129
Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 11 ACLR 616
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

BEECH J: The defendant applies for security for costs pursuant to s 1335 of the Corporations Act 2001 (Cth) and O 25 of the Rules of the Supreme Court 1971 (WA). For the reasons that follow, I would dismiss its application.
The threshold requirement in s 1335 is that it appears by credible testimony that there is reason to believe that the plaintiff will be unable to pay the costs of a successful defendant. I am satisfied that the threshold requirement is met. The evidence is that the plaintiff has no assets.[1] Further, the plaintiff is a trustee company.[2]
[1] Affidavit of Philip Allan Hirschberg affirmed 12 October 2015 [11].
[2] As to which, see BBC Nominees (WA) Pty Ltd v Yangebup Developments Pty Ltd [2008] WASC 81 [14] ‑ [17]; Mila Properties Pty Ltd v Caldwell [2009] WASC 282 (Sanderson M).
The question is whether the court should exercise its discretion. The court has a broad unfettered discretion under s 1335.
In Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd[3] Edelman J set out the following non‑exclusive list of factors relevant to the discretion to order security for costs.
[3] Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57 [6].
(i)the strength and bona fides of the plaintiff's case;
(ii)the likelihood of the plaintiff being unable to pay the defendant's costs;
(iii)whether the plaintiff's impecuniosity was caused by the defendant's conduct which is the subject of the claim;

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 LPH Developments Pty Ltd v Jameson Moore Pty Ltd

Details

AGLC: LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416
Case: [2015] WASC 416
Decision Date: 4 NOVEMBER 2015

CaseChat Overview and Summary

In the case of LPH Developments Pty Ltd v Jameson Moore Pty Ltd, the dispute centred around the issue of security for costs in the context of overlapping claims and counterclaims. The Federal Court was tasked with determining the relevant factors to consider when exercising its discretion to order security for costs. The case involved two parties, LPH Developments Pty Ltd, the plaintiff, and Jameson Moore Pty Ltd, the defendant. The plaintiff sought security for costs from the defendant in the context of a legal dispute that involved overlapping claims and counterclaims between the parties.

The central legal issue before the court was the identification of the factors that should guide the exercise of discretion in ordering security for costs, particularly in cases involving overlapping claims and counterclaims. The court was required to assess whether the traditional factors used in security for costs cases were applicable in this unique context and, if so, how they should be weighed in the decision-making process. The court also needed to consider the specific circumstances of the case, including the nature and complexity of the claims, the financial positions of the parties, and the potential for one party to be prejudiced by the other's legal proceedings.

The court found that the traditional factors for ordering security for costs, such as the merits of the case, the financial position of the parties, and the likelihood of one party being prejudiced, remained relevant even in cases involving overlapping claims and counterclaims. However, the court emphasised that each case turns on its own facts and that the court must exercise its discretion carefully, considering all relevant factors. The court also noted that the existence of overlapping claims and counterclaims could impact the assessment of these factors, as it may indicate a higher potential for costs being wasted or for one party being prejudiced by the other's proceedings. The court held that, in such cases, the party seeking security for costs must demonstrate that the traditional factors, along with the unique aspects of the case, support the imposition of such an order.

Orders