Nikolic v Guo - [2023] WASC 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NIKOLIC -v- GUO [2023] WASC 265
CORAM:   REGISTRAR FATHARLY
HEARD:   31 MAY 2023
DELIVERED          :   17 JULY 2023
PUBLISHED           :   17 JULY 2023
FILE NO/S:   CIV 2059 of 2021
BETWEEN:   DAVOR NIKOLIC
Plaintiff
AND
XIUYI GUO
First Defendant
SHUYA DUAN
Second Defendant

Catchwords:

Application for security for costs ‑ Individual plaintiff ‑ Concern plaintiff will be unable to meet adverse costs order ‑ Whether obligations on plaintiff to set out financial circumstances ‑ Conferral

Legislation:

Rules of the Supreme Court 1971, O 25, O 59 r 9

Result:

Application for security dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	D Chandler & A Lai
Second Defendant	:	D Chandler & A Lai

Solicitors:

Plaintiff	:	In Person
First Defendant	:	AH2 Legal
Second Defendant	:	AH2 Legal

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

Brundza v Robbie & Co (No 2) (1952) 88 CLR 171, 175; [1952] HCA 49
Cowell v Taylor (1885) 31 Ch D 34
Kevorkian v Burney (No 2) [1937] 4 All ER 468
Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132
Morris v Hanley [2000] NSWSC 957
Nikolic -v- Guo [2022] WASC 386
Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd [1991] SASC 3090 [42]
Sarac v Croatian House Hrvatski Dom (Inc) (Unreported, WASC Full Court, Library No 950675, 12 December 1995)
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14

REGISTRAR FATHARLY:

Application for security

On 31 May 2023 I heard the defendants' application for orders that the plaintiff pay $50,000 into court as security for future costs of the proceedings with the proceedings to be stayed until the security is furnished. I reserved my decision at the time.
The proceedings have now been on foot for 21 months with two substantive contested applications brought prior to the application for security.
The defendants' application is based upon their concern that the plaintiff will not be able to meet an order for costs if he fails in the action, that is, if the defendants are successful in their defence of the proceedings[1] (the defendants' Concern). In reality, they simply do not know whether he could.
[1] Affidavit of Shuya Duan affirmed 23 March 2023, [6].
The defendants' solicitors demanded of the plaintiff that he provide personal information to satisfy them as to his ability to meet an adverse costs order, but not surprisingly he did not do so.
The defendants rely upon that refusal or failure as a basis for not knowing whether he could satisfy costs of an adverse judgment, submitting they had no choice but to make the application and that if the plaintiff had simply answered the defendants' Concern this application would not have been necessary.
The defendants submit that the plaintiff has brought the application upon himself by refusing or failing to satisfy…

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.

Continue reading Nikolic v Guo

Details

AGLC: Nikolic v Guo [2023] WASC 265
Case: [2023] WASC 265
Decision Date

CaseChat Overview and Summary

The defendants, Xiyu Guo and Shuya Duan, sought an order that the plaintiff, Davor Nikolic, pay $50,000 as security for future costs of the proceedings. The plaintiff had been unable to provide the defendants with the financial information they had requested, leading to the defendants' concern that the plaintiff would be unable to meet an adverse costs order if the defendants were successful in their defence of the proceedings. The plaintiff, who was representing himself, resisted the application for security. The court considered the prima facie merits of the claim, the assets available to satisfy any order for costs against the plaintiff, and whether the normal processes of the court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff. The court found that the plaintiff had significant assets within the jurisdiction, including a property and a car, and there was no apparent reason why any adverse costs order could not be enforced in Western Australia. The court also considered the defendants' delay in bringing the application and their conduct in relation to the application. The court dismissed the application for security and ordered that the plaintiff's application be dismissed. The court noted that the plaintiff was unrepresented and the defendants had been unsuccessful in their application.

The court dismissed the defendants' application for security for costs and ordered that the plaintiff's application be dismissed. The court also ordered that the parties were to confer to discuss the costs of the proceedings, noting that the plaintiff was unrepresented and the defendants had been unsuccessful in their application. The plaintiff was ordered to pay the defendants' costs of the application to be taxed or assessed.

Orders