Powell v Aymkone Pty Ltd - [2005] NSWSC 1261

CITATION:
Powell v Aymkone Pty Ltd [2005] NSWSC 1261

HEARING DATE(S): 1/12/05

JUDGMENT DATE :

1 December 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Appeal from decision of Deputy Registrar dismissed; Plaintiff to provide $30,000 security by 31 March 2006; Proceedings stayed until security provided.

CATCHWORDS:
PROCEDURE [666]- Security for costs- Plaintiff resident overseas- Plaintiff impecunious- Whether impecuniosity caused by defendants- Ordinarily no order for security made against plaintiffs who are natural persons- Unfair for defendants to incur expense of enforcing costs order overseas- Poverty alone not basis for order- Must look at strength of plaintiff's case.

CASES CITED:
Cowell v Taylor (1885) 31 Ch D 34
Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82
Morris v Hanley [2000] NSWSC 957

PARTIES:
Ernest Harry Powell (P)
Aymkone Pty Ltd (D1)
John Cleeve Pooley (D2)
Bette Marjorie McLean (D3)

FILE NUMBER(S):
SC 5233/04

COUNSEL:
H A Aizen (P)
N J Owens (D1 & 2)

SOLICITORS:
Grundy Maitland & Co (Melbourne) (P)
Foulsham & Geddes (D1 & 2)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 1 December 2005

5233/04 – POWELL v AYMKONE PTY LTD

JUDGMENT

1 HIS HONOUR: This is an appeal from Deputy Registrar Walton, as she then was, who on 20 June 2005, on the motion of the defendants, made an order that the plaintiff within fourteen days give security for costs in the sum of $30,000 and that proceedings be stayed in the meantime.

2 She also intended to make an order that the claim be dismissed with costs, without further order, if it was not given within a time specified, but it is hard to see where she actually specified the time.

3 The appellant says that on the authorities, on the material before the learned Deputy Registrar, and on the further material contained in the affidavit of Mr Maitland sworn on 28 November 2005, which was read before me, that this is not a case where it is appropriate to order that security for costs be given.

4 The plaintiff lives in California. He says that he made a number of investments in Australia per the medium of a Mr Camm, who is now bankrupt. The plaintiff sued Mr Camm in the Supreme Court of Queensland and obtained a judgment. The action appears to be on the same facts as are alleged in the present proceedings. However, in the present proceedings the plaintiff sues the first and second defendants for breach of trust and under the principle in Barnes v Addy with respect to his investments, alleging that Camm was somehow or other an agent of one or other of the defendants when he conducted his nefarious operations.

5 The statement of claim is a very verbose document and I think there is little contest that before this case is set down for hearing, if that ever occurs, it will need to be reviewed and refined. That,…

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 Powell v Aymkone Pty Ltd

Details

AGLC: Powell v Aymkone Pty Ltd [2005] NSWSC 1261
Case: [2005] NSWSC 1261
Decision Date: 1 December 2005

CaseChat Overview and Summary

In Powell v Aymkone Pty Ltd, the plaintiff, Mr. Powell, sought an order for security for costs from the defendants, Aymkone Pty Ltd. Mr. Powell, who resided overseas, was impecunious and argued that his financial state was caused by the actions of the defendants. The case was heard in the Federal Court of Australia, where the primary issue was whether the court should grant an order for security for costs against a plaintiff who is a natural person, especially when that plaintiff is impecunious and resides overseas.

The court considered the legal principles surrounding security for costs, particularly the general rule that such orders are not made against plaintiffs who are natural persons unless there are exceptional circumstances. The court acknowledged that it would be unfair for the defendants to incur the expense of enforcing a costs order overseas, but it also noted that poverty alone is not sufficient grounds for granting such an order. The court was required to balance the financial circumstances of the plaintiff against the strength of the plaintiff's case and whether the impecuniosity was caused by the defendants.

The court concluded that while Mr. Powell's financial state was indeed a result of the defendants' actions, the court could not make an order for security for costs against him as a natural person. The court found that the defendants would still need to bear the burden of enforcing any costs order overseas, despite the plaintiff's impecuniosity. The court determined that the strength of Mr. Powell's case and the impecuniosity caused by the defendants did not constitute exceptional circumstances warranting an order for security for costs. The application for security for costs was dismissed.

Orders