Oswal v Carson (No 4) - [2011] VSC 434

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 785

RADHIKA PANJAK OSWAL	Plaintiff
v
IAN MENZIES CARSON DAVID LAURENCE MCEVOY SIMON GUY THEOBALD and BURRUP FERTILISERS PTY LTD (ACN 095 441 151)	Defendants

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2011
DATE OF RULING:	2 September 2011
CASE MAY BE CITED AS:	Oswal v Carson and ors (No 4)
MEDIUM NEUTRAL CITATION:	[2011] VSC 434

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PRACTICE AND PROCEDURE – Security for costs – Whether plaintiff is attacker – Discretionary factors – Novel claim – Defendants’ opportunity to narrow scope of dispute - Whether delay in making application – Rule 62.02(1)(a) Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Durack SC	Jones Day
For the Defendants	Mr JWS Peters SC with Mr DR Luxton	Freehills

HER HONOUR:

The first three defendants, Ian Menzies Carson, David Laurence McEvoy and Simon Guy Theobald, have been appointed receivers and managers under a charge registered over the assets of the fourth defendant, Burrup Fertilisers Pty Ltd (“BFPL”).[1] In this application, the defendants seek an order against the plaintiff for security for costs in the sum of $346,362.83. For the reasons which follow, I have determined that the application should be dismissed.
[1]The validity of the appointment of the first three defendants as receivers and managers of the charged property is disputed by Ms Oswal and is the subject of separate proceedings in this Court.

The plaintiff, Radhika Oswal, is the wife of the former managing director of BFPL. Ms Oswal sent and received emails using an email server operated by BFPL. She claims that those emails are her property, are not part of the assets subject to the charge, and that the defendants are not entitled to access or otherwise deal with the emails. She seeks a declaration that the emails are her property and that the defendants be required to deliver them up to her.[2] Alternatively, Ms Oswal alleges that if the emails are property subject to the charge, it would be an invasion of privacy or breach of confidence for the receivers to access or otherwise deal with certain of them. In that regard, Ms Oswal seeks an injunction restraining the defendants from accessing or dealing with those emails except for the purposes of this proceeding or with the prior written consent of Jones Day, who are her solicitors.
[2]Ms Oswal also seeks alternative relief effectively to achieve the same ends.

On 9 March 2011, Almond J granted an interlocutory injunction restraining the defendants from accessing, viewing, copying, forwarding or in any other way dealing with the emails except with the prior written consent of Ms Oswal’s solicitors. That order was varied on 26 May 2011 so that the defendants were permitted to access and deal with the emails for the purposes of this proceeding.

By agreement between the parties, Ms Oswal has previously provided the sum of…

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 Oswal v Carson (No 4)

Details

AGLC: Oswal v Carson (No 4) [2011] VSC 434
Case: [2011] VSC 434
Decision Date: 2 September 2011

CaseChat Overview and Summary

In this matter, the plaintiff, Oswal, sought security for costs against the defendants, Carson, in the Supreme Court. The plaintiff's application for security was resisted by the defendants, who argued that Oswal was the attacker and the defendants were the defenders. The court was required to determine whether Oswal was indeed the attacker and to consider the discretionary factors relevant to the grant of security for costs.

The court examined the nature of the plaintiff's claim, which was novel and untested. The court noted that the plaintiff's opportunity to narrow the scope of the dispute had been limited by the defendants' conduct. The court also considered the delay in making the application for security and the factors set out in Rule 62.02(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005. These factors included the plaintiff's ability to pay the defendants' costs, the merits of the plaintiff's claim, and the public interest in the matter proceeding.

After considering the evidence and arguments presented, the court found that the plaintiff was not the attacker and that the defendants were the attackers. The court also found that the plaintiff's claim was novel and untested, and that the defendants had limited the plaintiff's opportunity to narrow the scope of the dispute. The court determined that the delay in making the application for security was not significant enough to outweigh the other factors in favour of granting security. The court ultimately decided that the plaintiff was entitled to security for costs in the amount of $20,000.

The court ordered that the defendants pay the plaintiff $20,000 within 28 days of the judgment. The court also ordered that the defendants provide an undertaking to the plaintiff as to costs in the event that the plaintiff succeeded in the proceedings. The court noted that the amount of security granted was not final and that either party could apply to the court to vary the amount of security if circumstances changed.

Orders