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:

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].
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.
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].
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].
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…

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: [2020] WASC 441
Decision Date: 11 DECEMBER 2020

CaseChat Overview and Summary

The case of Mudamburi v Chidamba was heard in the Federal Court of Australia, involving a dispute between the plaintiff, Mudamburi, and the defendant, Chidamba. The plaintiff, who is a resident outside Australia, sought to enforce a judgment obtained in a foreign court against the defendant. The defendant contested the enforcement, arguing that the plaintiff had not provided adequate security for the costs of the proceedings. The core issue in this case revolved around whether the plaintiff, being a non-resident, was required to provide security for the defendant's costs if the plaintiff's own assets were insufficient to cover them. The court had to determine the application of the relevant legal principles concerning security for costs when the plaintiff is a non-resident.

The Federal Court examined the legal framework governing security for costs in cases where the plaintiff is not domiciled in Australia. The court considered the importance of ensuring that defendants were not unduly prejudiced by the inability of non-resident plaintiffs to cover the costs of litigation from their own resources. It also had to balance this with the principle that non-resident plaintiffs should not be unfairly disadvantaged by the imposition of security requirements that might be excessive or impractical. The court needed to decide whether the plaintiff had fulfilled the necessary requirements under the law to demonstrate that they could meet the costs of the proceedings, and if not, what form of security, if any, should be required.

In delivering its judgment, the Federal Court concluded that while the plaintiff's inability to provide security from their own resources was a relevant factor, the court must also consider the broader implications for justice and fairness in the proceedings. The court held that, in exceptional circumstances, a non-resident plaintiff might be required to provide security for costs, even if their own assets were insufficient. However, the court determined that in this particular case, the plaintiff had demonstrated that they were unable to provide the necessary security from their own resources. Given the specific facts and circumstances of the case, the court ruled that the plaintiff was not required to provide additional security beyond what they could already offer. This decision recognised the challenges faced by non-resident plaintiffs while ensuring that the defendant's rights were adequately protected.

The court's final order was that the plaintiff was not required to provide additional security for the defendant's costs beyond what they could already provide from their own resources. This decision allowed the proceedings to continue without imposing an undue financial burden on the plaintiff, while still safeguarding the defendant's interests. The ruling provided clarity on the application of security for costs in cases involving non-resident plaintiffs, balancing the need for procedural fairness with the practical realities faced by such litigants.

Orders