My Moose Super Fund Pty Ltd v Mining Store Pty Ltd - [2024] WASC 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MY MOOSE SUPER FUND PTY LTD -v- MINING STORE PTY LTD [2024] WASC 340
CORAM:   SEAWARD J
HEARD:   9 SEPTEMBER 2024
DELIVERED          :   19 SEPTEMBER 2024
PUBLISHED           :   19 SEPTEMBER 2024
FILE NO/S:   CIV 2252 of 2023
BETWEEN:   MY MOOSE SUPER FUND PTY LTD
Plaintiff
AND
MINING STORE PTY LTD
Defendant

Catchwords:

Practice and Procedure - Appeal from decision of a Registrar - Security for costs in appeal - Corporate plaintiff - Threshold jurisdictional question satisfied - Factors to consider in test for security for costs - Exercise of discretion - Appropriateness of personal undertaking - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335
Rules of the Supreme Court 1971 (WA), O 25

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Plaintiff	:	J Flinn
Defendant	:	C Horwood

Solicitors:

Plaintiff	:	Croftbridge Lawyers
Defendant	:	Piper Alderman

Cases referred to in decision:

Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd (No 5) [2017] WASC 171
Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd [1999] VSCA 43; [1999] 2 VR 191
George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56
Jaddcal Pty Ltd v Minson [No 2] [2011] WASC 138
Knights Capital Group Ltd v Bajada & Associates Pty Ltd [No 2] [2017] WASC 245
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Patrick Jebb as trustee for Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Phoenix Eagle Co Pty Ltd v Tom McArthur Pty Ltd [2019] WASC 378
Priority Networking Pty Ltd v Peterson [2018] WASC 36
SAS Global Forrestdale Pty Ltd v Samsera Pty Ltd [2010] WASC 309
Sugarloaf Hill Nominees Pty Ltd as Trustee for The Richard and Anna Trust v Rewards Projects Ltd [2011] WASC 19
Sunlea Enterprises Pty Ltd v Pollock [2014] WASC 91
Unified Pty Ltd v The Cancer Council Western Australia Inc [No 3] [2011] WASC 161
Veneziano Coffee Roasters WA Pty Ltd v Healthy Nut Café Pty Ltd [2018] WASC 363
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

SEAWARD J:

Introduction

This is an appeal by the defendant, Mining Store Pty Ltd, from the decision of Registrar Griffin to dismiss its application for security for costs.
The issue raised by this appeal is the appropriate exercise of the court's discretion. This requires the court to balance the competing interests between (a) the defendant being protected against the risk of not being reimbursed for its costs should it be successful in defending the litigation and (b) the plaintiff being able to vindicate its rights through the conduct of the substantive litigation.
For the reasons set out below, I am of the view that the appropriate balance in this case is to require an undertaking as to costs to be provided by Michelle Gibson, being the sole director and shareholder of the…

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.

Keep reading for free

Create a free CaseChat account to read My Moose Super Fund Pty Ltd v Mining Store Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] WASC 340
Decision Date: 19 SEPTEMBER 2024

CaseChat Overview and Summary

The matter before the Court was an application by Mining Store Pty Ltd for security for costs against My Moose Super Fund Pty Ltd. The case originated from a dispute concerning a mining agreement, and the application for security was made under section 1335 of the Corporations Act 2001 (Cth) or, in the alternative, under Order 25 of the Rules of the Supreme Court. The primary legal issue was whether the Court should exercise its discretion to order security for costs given that the threshold requirement for the jurisdictional question had been satisfied.

The Court considered the discretionary factors relevant to the exercise of its discretion, including the strength of the plaintiff’s case, the likelihood of the plaintiff being able to pay the defendant's costs, and whether the application for security was oppressive. The Court noted that the test for security involves a two-step process: firstly, determining if there is a credible belief that the plaintiff will be unable to pay the costs if the defendant is successful; and secondly, exercising the Court's discretion to order security if the first step is satisfied. The Court found that the threshold jurisdictional question had been met, and proceeded to consider the appropriate exercise of its discretion. The Court determined that the application for security should be dismissed, as the circumstances did not warrant the imposition of security.

In light of the findings, the Court made no order for security for costs. The proceedings were allowed to continue without the requirement for any security to be provided by the plaintiff.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The defendant applies for security for costs under s 1335 of the Corporations Act 2001 (Cth) (Corporations Act) or alternatively O 25 of the RSC. There is no dispute as between the parties as to the principles to be applied in the determination of the application. Under s 1335(1) of the Corporations Act, the court has the power to order that security be given for the likely costs of a proceeding over which it has jurisdiction. Further, the court has the power to order that any proceeding be stayed until any security ordered is given. Section 1335(1) provides as follows:Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. There is no entitlement to security, nor any predisposition towards an order for security.[2] The test for security under s 1335 of the Corporations Act contains two requirements: [3](a)threshold jurisdictional question: being whether it appears by credible testimony that there is reason to believe that the plaintiff will be unable to pay the defendant's costs if successful; and(b)discretionary question: if the threshold question is satisfied, whether the discretion to make an order for security for costs should be exercised.[2] Phoenix Eagle Co Pty Ltd v Tom McArthur Pty Ltd [2019] WASC 378 [17].[3] SAS Global Forrestdale Pty Ltd v Samsera Pty Ltd [2010] WASC 309 [9]. There is no dispute in the present case that the threshold jurisdictional question has been satisfied. Once the court's jurisdiction is enlivened under s 1335(1), there is an unlimited discretion that is to be exercised considering all of the circumstances of the case.[4] The following non-exhaustive list of factors have been identified as being potentially relevant to the exercise of the discretion in the various authorities: [5][4] Unified Pty Ltd v The Cancer Council Western Australia Inc [No 3] [2011] WASC 161 [10].[5] See Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57 [5] ‑ [6]; George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56 [42] ‑ [48].(a)the strength and bona fides of the plaintiff's case; (b)the likelihood of the plaintiff being able to pay the defendant's costs;(c)whether the plaintiff's impecuniosity was caused by the defendant's conduct which is the subject of the claim;(d)whether the application for security is oppressive;(e)whether the award for security would deny the impecunious plaintiff a right to litigate; (f)whether there are persons standing behind the plaintiff who are likely to benefit from the litigation;(g)whether the persons standing behind the plaintiff have offered any security or personal undertaking;(h)whether the defendant is in substance a plaintiff or whether the proceedings are defensive in the sense of directly resisting proceedings already brought or seeking to halt the defendant's self-help procedures;(i)whether the application for security has been brought promptly;(j)whether the defendant has any rights which it can exercise against the assets of the plaintiff to satisfy an order for costs in its favour; and(k)any factors relating to public interest.