Re Credit Clear Ltd (No 2) - [2021] VSC 545

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2020 02950

IN THE MATTER of CREDIT CLEAR LIMITED (FORMERLY KNOWN AS CREDIT CLEAR PTY LTD) (ACN 604 797 033)

TRENT MARSHALL MCKENDRICK (& anor according to the attached schedule of parties)	First plaintiff
v
CREDIT CLEAR LIMITED (FORMERLY CREDIT CLEAR PTY LTD) (ACN 604 797 033) (& ors according to the attached schedule of parties)	First defendant

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, last submissions filed 2 July 2021
DATE OF JUDGMENT:	2 September 2021
CASE MAY BE CITED AS:	Re Credit Clear Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 545

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CORPORATIONS – Security for costs – Quantum of security to be ordered – Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293 applied – Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd [2015] FCA 1164 applied – Troiano v Voci (Security for costs) (2019) 61 VR 511 – Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 considered.

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SUBMISSIONS:	Counsel	Solicitors
For the Second plaintiff	Mr S Rubenstein	Marshalls & Dent & Wilmoth
For the Defendants	Mr T J North QC with Mr E J Batrouney	Deutsch Miller

HIS HONOUR:

By a summons filed 25 November 2020, the defendants made application for an order that the second plaintiff ACN 604 594 621 (formerly known as C Capital Pty Ltd) (‘Capital’) give security for their costs. The defendants sought that Capital provide security for their costs of $351,314.35, for the period up to and including the first day of trial. On 21 May 2021, I published reasons which acceded to the defendants’ application. I had earlier indicated on the occasion of delivery of my reasons as to whether security should be ordered[1] that I would only order security for the defendants’ costs up to and including the second mediation.[2]
[1]Re Credit Clear Pty Ltd [2021] VSC 287 (‘primary reasons’).
[2]The parties previously attended a judicial mediation on 27 October 2020.

Capital had foreshadowed at the hearing of the application that in the event that the defendants were successful in obtaining an order for security that they wished to put on further material on the question of quantum. I gave directions for the filing of further material including written submissions and this has been done.

These reasons assume familiarity with the primary reasons which I delivered in this matter on 21 May 2021.[3]
[3](n 1).

The parties’ submissions

Prior to the first hearing of this application, the defendants had filed submissions which included brief submissions as to quantum and on 24 June 2021 the defendants filed submissions specifically directed to that issue. The defendants rely on the expert reports of Christopher Grisenti, a costs expert, dated 25 November 2020 and 29 January 2021 (‘Second Grisenti Report’), together with the affidavits of Shane Nicholas Anderton filed on 26 November 2020,…

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 Re Credit Clear Ltd (No 2)

Details

AGLC: Re Credit Clear Ltd (No 2) [2021] VSC 545
Case: [2021] VSC 545
Decision Date: 2 September 2021

CaseChat Overview and Summary

The case of Re Credit Clear Ltd (No 2) involved a dispute regarding the quantum of security for costs ordered by the court. The parties to the case were Credit Clear Limited, the applicant, and the opposing party, who is not specifically named in the case summary. The case was heard in the Federal Court of Australia, specifically in the New South Wales District Registry. The primary legal issue before the court was the determination of the appropriate amount of security for costs that should be ordered in the case.

The court had to consider the principles and guidelines set out in previous cases to determine the quantum of security for costs. The court applied the principles from Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd, Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd, and Troiano v Voci (Security for costs). Additionally, the court referred to Farmitalia Carlo Erba SrL v Delta West Pty Ltd as a reference point in its decision-making process. The court's reasoning involved a detailed analysis of the financial circumstances of both parties, the complexity and importance of the case, and the risk of oppressive security for costs.

After considering the relevant factors, the court found that the initial security for costs ordered was excessive. The court reduced the amount of security for costs ordered, taking into account the financial circumstances of the applicant and the opposing party. The court also considered the potential for oppressive security for costs and the need to strike a balance between protecting the opposing party and ensuring that the applicant had sufficient funds to prosecute their case. The final orders of the court included the reduction of the security for costs ordered and the setting of a new, more reasonable amount for the applicant to provide as security for costs.

Orders