LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 2] - [2017] WASC 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LPH DEVELOPMENTS PTY LTD -v- JAMESON MOORE PTY LTD [No 2] [2017] WASC 128

CORAM: BANKS-SMITH J

HEARD: 8 MAY 2017

DELIVERED : 9 MAY 2017

FILE NO/S: CIV 2343 of 2015

BETWEEN: LPH DEVELOPMENTS PTY LTD
Plaintiff
AND
JAMESON MOORE PTY LTD
Defendant
(BY ORIGINAL ACTION)
JAMESON MOORE PTY LTD
Plaintiff
AND
LPH DEVELOPMENTS PTY LTD
Defendant
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Security for costs - Second application - Undertaking to stay counterclaim - Exercise of discretion - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335

Result:

Application successful
Security ordered

Category: B

Representation:

Original Action

Counsel:

Plaintiff: Mr B Grubb
Defendant : Ms K R Lendich

Solicitors:

Plaintiff: Metaxas & Hager
Defendant : Mettam Legal

Counterclaim

Counsel:

Plaintiff: Ms K R Lendich
Defendant: Mr B Grubb

Solicitors:

Plaintiff: Mettam Legal
Defendant: Metaxas & Hager

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

Addenbrooke Pty Ltd v Duncan (No 3) [2014] FCA 322
Aspendale Pastoral Co Pty Ltd v WJ Drever Pty Ltd (1983) 7 ACLR 937
Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2014] VSC 154
Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
David Clarke Air Conditioning Pty Ltd v Quann [No 2] [2016] WASC 176
Edenham Pty Ltd v Meares [No 2] [2016] WASC 302
Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306
Interwest Ltd v Tricontinental Corp Ltd (1991) 5 ACSR 621
January Force Pty Ltd v Tricon Restaurants Australia Pty Ltd [1999] FCA 1746
LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416
Momentum Mortgages Ltd v Elmowy [2010] NSWSC 950
Orica Australia Pty Ltd v Garard Chemical Engineering Pty Ltd [2013] NSWSC 1426
Scanlan v Greenport Nominees Pty Ltd [2001] WASC 307
Spargos Mining NL v Fuller [2003] WASC 37
Sunlea Enterprises Pty Ltd as Trustee for Drummond Cove Unit Trust v Pollock [2014] WASC 91
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57
BANKS-SMITH J:

Background

This is a second application brought by the defendant for security for costs. The parties have proceeded on the basis that the application is brought under s 1335 of the Corporations Act 2001 (Cth).
The first application was determined by Beech J and was dismissed: LPH Developments Pty Ltd v Jameson Moore Pty Ltd.[1] It was brought relatively early in the proceedings. Although the court was satisfied that there was credible evidence that the plaintiff would be unable to pay the costs of a successful defendant, there was a substantial overlap of issues with the defendant's counterclaim and there was no offer on the part of the defendant to stay the counterclaim.
[1] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416.
The facts pleaded in the statement of claim and counterclaim were summarised by Beech J[2] and I do not need to repeat them, suffice to say…

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: [2017] WASC 128
Decision Date: 9 MAY 2017

CaseChat Overview and Summary

The case of LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 2] involved the applicant, LPH Developments, seeking an order for security for costs from the respondent, Jameson Moore. This was a subsequent application in a legal dispute that had already been ongoing. The primary issue was whether the court should grant the applicant's request for security for costs, given the applicant's previous attempts to obtain such an order and the presence of a counterclaim by the respondent. The court had to consider the discretion to be exercised in granting security for costs, particularly in light of the undertaking to stay the counterclaim and the specific facts of the case.

The legal issues before the court centred on the principles governing security for costs applications in the context of an existing counterclaim and the court's discretion in such matters. The court had to weigh the applicant's need for financial protection against the respondent's right to defend their counterclaim. Additionally, the court considered the implications of the applicant's previous attempts to secure costs and the effect of the undertaking to stay the counterclaim on the exercise of discretion.

The court concluded that the matter was one for the exercise of the court's discretion, taking into account the unique facts of the case. It was noted that the court had previously refused a similar application due to the presence of the counterclaim. However, given the undertaking to stay the counterclaim, the court determined that the balance of convenience had shifted in favour of the applicant. Consequently, the court granted the applicant's application for security for costs, acknowledging the need to protect the applicant's interests while considering the respondent's right to defend their counterclaim.

The court ordered Jameson Moore Pty Ltd to provide security for the costs of LPH Developments Pty Ltd, subject to the terms and conditions specified in the judgment. The order was tailored to reflect the unique circumstances of the case, ensuring that both parties' rights and interests were appropriately balanced.

Orders