NINAN -v- WESTPAC BANKING CORPORATION [2015] WASCA 94

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 94
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:12/2015	Heard:	23 APRIL 2015
Coram:	NEWNES JA	Delivered:	13/05/15
No of pages:	8	Judgment Part:	1 of 1
Result:	Security ordered in the sum of $16,000
Category:	B
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Parties:	GEORGE NINAN MOLLY GEORGE WESTPAC BANKING CORPORATION
Catchwords:	Practice and procedure Security for costs of appeal Appellants residing overseas Relevant principles Turns on own facts
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)
Case References:	Alfaro v Brokesova [2013] WASCA 38 Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171 Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1 Mann v Dabelstein [2006] WASCA 176 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 MTI v SUL [No 2] [2012] WASCA 87 Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 Ninan v National Australia Bank [2015] WASCA 10 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NINAN -v- WESTPAC BANKING CORPORATION [2015] WASCA 94 CORAM : NEWNES JA HEARD : 23 APRIL 2015 DELIVERED : 13 MAY 2015 FILE NO/S : CACV 12 of 2015 BETWEEN : GEORGE NINAN

MOLLY GEORGE

Appellants

AND

WESTPAC BANKING CORPORATION

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : CHANEY J

Citation : WESTPAC BANKING CORPORATION -v- NINAN [2014] WASC 456

File No : CIV 2202 of 2014

Catchwords:

Practice and procedure - Security for costs of appeal - Appellants residing overseas - Relevant principles - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)

Result:

Security ordered in the sum of $16,000

Category: B

Representation:

Counsel:

Appellants : In person

Respondent : Mr J Lin

Solicitors:

Appellants : In person

Respondent : Jackson McDonald

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

Alfaro v Brokesova [2013] WASCA 38
Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1
Mann v Dabelstein [2006] WASCA 176
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
MTI v SUL [No 2] [2012] WASCA 87
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241
Ninan v National Australia Bank [2015] WASCA 10
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

1 NEWNES JA: There are two interim applications before the court. The respondent has filed an application for security for its costs of the appeal. The appellants have filed an application seeking discovery by the respondent, under O 26 r 7 of the Rules of the Supreme Court 1971 (WA), of certain categories of accounting and other documents…

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: [2015] WASCA 94
Decision Date: 13 MAY 2015

CaseChat Overview and Summary

In the case of Ninan v Westpac Banking Corporation, the appellants, residing overseas, sought to appeal against the decision of the Federal Court of Australia. The nature of the dispute revolved around the security for costs of the appeal. The appellants were required to provide a financial guarantee to cover the respondent's potential costs if the appeal were unsuccessful. The legal issues before the court involved determining the appropriate amount of security required, considering the appellants' overseas residency and the risk factors associated with the case.

The court had to consider the principles established in previous cases regarding security for costs when the appellants reside overseas. It was necessary to evaluate the appellants' ability to pay the security and the likelihood of the appeal succeeding. The court also had to assess the respondent's potential costs and the risk of non-payment if the appeal were to fail. The relevant factors included the appellants' financial situation, the complexity and prospects of the appeal, and the overall costs involved.

After considering these factors, the court determined that the appropriate security for costs should be set at $16,000. This amount was considered sufficient to cover the respondent's potential costs while taking into account the appellants' overseas residency and the overall circumstances of the case. The court concluded that the amount was fair and reasonable, balancing the interests of both parties and ensuring that the appeal process was not unduly hindered by financial constraints.

The final orders of the court mandated that the appellants provide security in the sum of $16,000 to proceed with the appeal. This decision provided clarity on the security for costs requirements in cases where appellants reside overseas, ensuring that the legal process remains accessible and equitable for all parties involved.

Orders

Orders of the court

Security ordered in the sum of $16,000

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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