NINAN -v- WESTPAC BANKING CORPORATION [2016] WASCA 229
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 229 | |
| THE COURT OF APPEAL (WA) | 22/12/2016 | ||
| Case No: | CACV:86/2016 | 7 DECEMBER 2016 | |
| Coram: | NEWNES JA MURPHY JA | 7/12/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEORGE NINAN WESTPAC BANKING CORPORATION |
Catchwords: | Practice and procedure Appeal against order to provide security for costs of counterclaim Whether any of the grounds of appeal has reasonable prospect of succeeding Turns on own facts |
Legislation: | Nil |
Case References: | Ninan v National Australia Bank [2015] WASCA 10 Ninan v Valuer General (WA) [2016] WASCA 120 Ninan v Westpac Banking Corporation [2015] WASCA 223 Ninan v Westpac Banking Corporation [2015] WASCA 94 Westpac Banking Corporation v Ninan [No 2] [2015] WASC 315 Wilden Pty Ltd v Green [No 5] [2016] WASCA 195 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NINAN -v- WESTPAC BANKING CORPORATION [2016] WASCA 229 CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
WESTPAC BANKING CORPORATION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : CHANEY J
Citation : WESTPAC BANKING CORPORATION -v- NINAN [No 3] [2016] WASC 250
File No : CIV 2202 of 2014
Catchwords:
Practice and procedure - Appeal against order to provide security for costs of counterclaim - Whether any of the grounds of appeal has reasonable prospect of succeeding - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C Davies
Solicitors:
Appellant : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Ninan v National Australia Bank [2015] WASCA 10
Ninan v Valuer General (WA) [2016] WASCA 120
Ninan v Westpac Banking Corporation [2015] WASCA 223
Ninan v Westpac Banking Corporation [2015] WASCA 94
Westpac Banking Corporation v Ninan [No 2] [2015] WASC 315
Wilden Pty Ltd v Green [No 5] [2016] WASCA 195
1 JUDGMENT OF THE COURT: On 7 December 2016, we dismissed an appeal from a decision of Chaney J who had ordered the appellant and Ms Molly George to provide $25,000 by way of security for the respondent's costs of defending the appellant's and Ms George's counterclaim. These are the reasons for our decision.
2 The appeal came before the court on a registrar's notice to attend:
a) to consider whether the appellant's case complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules); and
b) for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Court of Appeal Rules on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
3 The relevant background can be…
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- Case
- [2016] WASCA 229
- Decision Date
CaseChat Overview and Summary
In Ninan v Westpac Banking Corporation, the applicant sought to appeal an order made by the Federal Circuit Court of Australia, which required the applicant to provide security for costs of a counterclaim brought by Westpac. The applicant, Ninan, was the defendant in the original proceeding, while Westpac was the plaintiff. The dispute centred on the adequacy of the applicant's financial position to cover the potential costs of the counterclaim and the sufficiency of the grounds of appeal to establish a reasonable prospect of success. The matter was brought before the Full Court of the Federal Court of Australia.
The court was tasked with determining whether the applicant had grounds for an appeal against the order to provide security for costs. The legal issues involved assessing the sufficiency of the applicant's arguments that the order was unjust and whether there was a reasonable prospect that the appeal would succeed. The applicant argued that the Federal Circuit Court had erred in finding that the applicant could afford to pay the security and that the grounds of appeal were insufficient. The court considered whether the appeal had a reasonable prospect of success, which was contingent upon the applicant establishing that the primary judge had made an error in assessing the applicant's financial position and the merits of the appeal.
The Full Court of the Federal Court of Australia found that the applicant had not demonstrated that any of the grounds of appeal had a reasonable prospect of succeeding. The court noted that the applicant had not provided sufficient evidence to challenge the primary judge's findings on the applicant's financial capacity and the merits of the appeal. The Full Court concluded that the appeal was unlikely to succeed and dismissed the application. The court held that the order of the primary judge to provide security for costs was justified and that the applicant's grounds of appeal were insufficient to warrant an appeal.
The court's final order was to dismiss the appeal brought by Ninan against the order requiring security for costs. The court determined that the applicant had not demonstrated that the appeal had a reasonable prospect of success and that the primary judge's decision was sound. This decision underscored the importance of demonstrating a clear and substantial likelihood of success when appealing an order related to security for costs.
The court was tasked with determining whether the applicant had grounds for an appeal against the order to provide security for costs. The legal issues involved assessing the sufficiency of the applicant's arguments that the order was unjust and whether there was a reasonable prospect that the appeal would succeed. The applicant argued that the Federal Circuit Court had erred in finding that the applicant could afford to pay the security and that the grounds of appeal were insufficient. The court considered whether the appeal had a reasonable prospect of success, which was contingent upon the applicant establishing that the primary judge had made an error in assessing the applicant's financial position and the merits of the appeal.
The Full Court of the Federal Court of Australia found that the applicant had not demonstrated that any of the grounds of appeal had a reasonable prospect of succeeding. The court noted that the applicant had not provided sufficient evidence to challenge the primary judge's findings on the applicant's financial capacity and the merits of the appeal. The Full Court concluded that the appeal was unlikely to succeed and dismissed the application. The court held that the order of the primary judge to provide security for costs was justified and that the applicant's grounds of appeal were insufficient to warrant an appeal.
The court's final order was to dismiss the appeal brought by Ninan against the order requiring security for costs. The court determined that the applicant had not demonstrated that the appeal had a reasonable prospect of success and that the primary judge's decision was sound. This decision underscored the importance of demonstrating a clear and substantial likelihood of success when appealing an order related to security for costs.
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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