Mudamburi v Chidamba

[2020] WASC 441

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MUDAMBURI -v- CHIDAMBA [2020] WASC 441

CORAM:   MASTER SANDERSON

HEARD:   ON THE PAPERS

DELIVERED          :   11 DECEMBER 2020

PUBLISHED           :   11 DECEMBER 2020

FILE NO/S:   CIV 1677 of 2020

BETWEEN:   CLARA MUDAMBURI

Plaintiff

AND

JUDITH CHIDAMBA

Defendant

Catchwords:

Security for costs - Plaintiff resident out of jurisdiction - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Contested Wills And Probate Lawyers
Defendant	:	Haynes Leeuwin

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

Energy Drilling Inc v Petroz NL (1989) ATPR 40‑954

MASTER SANDERSON:

1. This is the defendant's application for security for costs.  The action was commenced on 16 June 2020.  A statement of claim was indorsed on the writ.  At the time of the issue of the writ, the plaintiff was resident in England.  That is her permanent place of residence.[1] 

   [1] Affidavit of Judith Chidamba sworn 8 September 2020, [16].

2. The action itself concerns the estate of the late Brian Machekanyanga (the deceased).  The deceased passed away on 5 December 2018.[2]  The defendant is his lawful widow.  They were married on 12 October 2007.[3]  As at the date of his death, the deceased was resident in the State of Western Australia.

   [2] Affidavit of Judith Chidamba sworn 8 September 2020, [5] JC-2.

   [3] Affidavit of Judith Chidamba sworn 8 September 2020, [47] JC-3.

3. The deceased died intestate.[4]  The defendant applied for letters of administration in May 2019.[5]  No grant has yet been made.  There are a number of reasons why that is the case but for present purposes, the impediment is a caveat lodged on 6 December 2019 by the plaintiff.[6]

   [4] Affidavit of Judith Chidamba sworn 8 September 2020, [10].

   [5] Affidavit of Judith Chidamba sworn 8 September 2020, [11].

   [6] Affidavit of Judith Chidamba sworn 8 September 2020, [12].

4. The plaintiff claims she is the defacto widow of the deceased.[7]  The statement of claim, which pleads a combination of material facts, particulars and quite detailed evidence, explains why this is so.  For present purposes it is enough to say that based upon the pleading, the plaintiff clearly has an arguable case.  Her position is further supported by an affidavit sworn 8 October 2020.  She goes into some greater detail concerning her relationship with the deceased.  But really, what she does is confirm the contents of the statement of claim. 

   [7] Affidavit of Clara Mudamburi sworn 8 October 2020, [23].

5. The application is brought under O 25 of the Rules of the Supreme Court 1971 (WA) (RSC). In particular, reference is made to O 25 r 2(a) of the RSC. The defendant accepts no order should be made based simply upon the poverty of the plaintiff.[8]  But the defendant says in this case the plaintiff fits squarely within one of the nominated categories in r 2 and it is a proper and appropriate case for ordering security.

   [8] Defendant's outline of submissions and authorities filed 23 October 2020, [8].

6. Pursuant to O 25 r 3 of the RSC a number of matters must be taken into account in exercising discretion to grant security. First, there is the prima facie merits of the claim. Second, there is the property within the jurisdiction, which may be available to satisfy an order for costs against the plaintiff. Third, there is the question whether the normal processes of the court would be available within the jurisdiction for an enforcement of an order for costs made against the plaintiff.

7. In Energy Drilling Inc v Petroz NL (1989) ATPR 40‑954 at 50,522 Gummow J (then a judge of the Federal Court) explained the rationale for ordering security for costs against an applicant ordinarily resident outside the jurisdiction. His Honour said an applicant ordinarily resident outside the jurisdiction should give security to ensure that a successful respondent will have a fund available within the jurisdiction against which it can enforce any judgment for costs. If that is done then the respondent does not bear the risk and the uncertainty of enforcement in the foreign country. In other words, the aim is to avoid the risk a successful defendant, who is out of pocket and who has obtained an order for costs, will have to proceed in a foreign jurisdiction to recover those costs.

8. This case is somewhat unusual.  It is clear on the evidence – both from the plaintiff and the defendant – there is a dispute as to whether or not the plaintiff is the defacto widow of the deceased.  As I have indicated, there is a serious question to be tried on that issue.  It is for this court to decide who would be the proper administrator of the deceased's estate.  It may well be the defendant is the more appropriate person – she is the lawful widow of the deceased.  If that is the approach taken by the defendant, then presumably she will lodge a cross‑claim in these proceedings.  The relief that she would seek would be that she be appointed administrator.  If she had taken separate proceedings and was successful, then it would be necessary for her to determine whether or not the plaintiff was in fact the defacto widow of the deceased.  Given the clear conflict of interest she has in determining this question, it would almost certainly require her to apply to the court for directions.  That would necessarily involve a contest between the plaintiff and the defendant on the very issue which is to be determined in these proceedings.

9. One way or another then, the issue of the plaintiff's entitlement to a share in the assets of the deceased's estate must be determined.  That being so, it is inappropriate to order the plaintiff to provide security for costs in this matter.  It is difficult to see how, given the issues to be determined, any order for costs would not be directed against the estate.  That fact alone is sufficient to defeat the defendant's application.

10. The application for security for costs will be dismissed.  The costs of the application, including reserved costs, should be costs in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CB

Associate to Master Sanderson

11 DECEMBER 2020