Morag Atwell v Dennis Anthony Turner - [2017] VSC 212

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2016 02275

IN THE MATTER OF ATWELL & CO PTY LTD (ACN 106 264 055) (IN LIQUIDATION)
BETWEEN:
MORAG ATWELL (A BANKRUPT)	Appellant
AND
DENNIS ANTHONY TURNER & LUKE CHRISTOPHER TARGETT (IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF ATWELL & CO PTY LTD (ACN 106 264 055) (IN LIQUIDATION)	First Respondent
ATWELL & CO PTY LTD (ACN 106 264 055) (IN LIQUIDATION)	Second Respondent

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2017
DATE OF RULING:	27 April 2017
CASE MAY BE CITED AS:	Morag Atwell v Dennis Anthony Turner & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 212

PRACTICE AND PROCEDURE – Security for costs of appeal from decision of Associate Justice under r77.06 Supreme Court (General Civil Procedure) Rules 2005 – Impecunious appellant – Inherent jurisdiction of the Supreme Court to order security for costs – Relevant discretionary factors – Security ordered

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Not Applicable	Mr J Gray, Just Law
For the First and Second Respondents	Mr D Snyder	Aitken Partners Pty Ltd

HER HONOUR:

This is an application by summons for security for costs in relation to an appeal from a decision of Efthim AsJ[1] under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).
[1]Dennis Anthony Turner and Luke Christopher Targett (In their capacities as joint and several liquidators of Atwell & Co Pty Ltd (In Liquidation)) v Atwell & Co Pty Ltd in Liquidation (Unreported, Supreme Court of Victoria, Efthim AsJ, 14 December 2016) (Reasons).

The decision of the Associate Justice was made pursuant to s 504 of the Corporations Act 2001 (Cth) that the respondent liquidators receive remuneration fixed in the sum of $252,000.00 for the period of the liquidation of the company, Atwell & Co Pty Ltd, from 24 September 2015 to the completion of the liquidation.

The application is supported by two affidavits of Mr Michael O’Brien: of 10 March 2017 and 20 April 2017.

The appellant challenged the jurisdiction of the Court to make the orders sought and submitted that r 62.02 exhaustively defined the jurisdiction of the Court. She also submitted that, even if the jurisdiction existed, security should not be granted as a matter of discretion.

However, there was agreement between the parties as to the amount that should be ordered in the event that security was granted, namely, $15,000.00.[2]
[2]Transcript of Proceedings (21 April 2017) 3-10.

Background

The appellant, Ms Morag Atwell, is a sole shareholder and former director of the relevant company in liquidation. She is now a bankrupt.

On 20 August 2015 the respondents were appointed as joint administrators to the company. Then on 24 September 2015 it was resolved at a meeting of creditors that the company be wound up and the respondents appointed liquidators.

The liquidators subsequently applied for their remuneration in an amount of $280,000.00. Following a…

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] VSC 212
Decision Date: 27 April 2017

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Morag Atwell versus Dennis Anthony Turner involved a dispute regarding the costs associated with an appeal. The appellant, Morag Atwell, sought to appeal a decision made by an Associate Justice under Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005. The primary issue before the court was whether to order the appellant to provide security for the costs of the appeal, given her impecunious status.

The legal issue at the heart of the matter was the inherent jurisdiction of the Supreme Court to mandate that the appellant furnish security for the costs of an appeal. The court had to consider several discretionary factors, including the appellant's financial circumstances, the merits of the appeal, and the likelihood of the respondent being prejudiced if security was not required. The court also had to weigh the principle of open justice against the potential financial burden on the appellant.

After carefully considering the relevant factors, the court exercised its inherent jurisdiction to order the appellant to provide security for the costs of the appeal. The court determined that while the appellant's impecuniosity was a significant factor, the merits of the appeal and the potential for prejudice to the respondent were also important considerations. The court concluded that ordering security for costs was necessary to balance the interests of both parties and to ensure the fair administration of justice. The court ordered the appellant to provide security for the costs of the appeal, taking into account the specific circumstances of the case.

Orders