Re Michelides; Ex Parte Chin [No 2] - [2010] WASC 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169

CORAM: KENNETH MARTIN J

HEARD: 17 JUNE 2010

DELIVERED : 8 JULY 2010

FILE NO/S: CIV 1903 of 2008

MATTER :Application pursuant to s 36 of the Magistrates Court Act 2004 for review order

EX PARTE
NICHOLAS NI KOK CHIN
Plaintiff
AND
TIMOTHY ROBIN THIES
First Defendant
PAUL CHUNG KIONG CHIN
Second Defendant

Catchwords:

Application for security for costs - Unsatisfied judgment debts - Discretionary considerations - Inherent weakness in plaintiff's application for relief under s 36 Magistrates Court Act 2004 (WA)

Legislation:

Magistrates Court Act 2004 (WA), s 35, s 36
Rules of the Supreme Court 1971 (WA), O 25
Transfer of Land Act 1893 (WA), s 138B

Result:

Application for security for costs granted

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant            :     Mr S Ellis
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     In person
First Defendant            :     Mr S Ellis
Second Defendant        :     In person

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

Re An Application under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52
Re An Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151
Re Michelides; Ex parte Chin [2008] WASC 256
Thies v Chin [2010] WASC 111
Thompson v Lane [2005] WASC 281

KENNETH MARTIN J:

Overview

The first defendant brings an application for security in this matter pursuant to O 25 of the Rules of the Supreme Court 1971 (WA) (RSC) under its chamber summons of 13 May 2010. Relevantly, he seeks orders that:
2.[T]he plaintiff do give security for the first defendant's costs of the proceedings in the sum of $38,000 by payment of that amount into Court, and that in the meantime all further proceedings be stayed.
3.Order 5 of the Orders made by Hasluck J on 7 November 2008 staying Magistrates Court proceedings FR 944 of 2007 be discharged to the extent necessary to enable the first defendant to permit finalisation of the taxation of the first defendant's bill of costs in those proceedings and enforcement of the first defendant's entitlement to recover costs.

The history and background concerning this matter are somewhat convoluted. At root however, it seems that these proceedings concern a claim by the plaintiff against the first defendant for the return of $6,000 which was a component in a compromise payment of $11,500 received by the first defendant in 2007. The plaintiff is on the roll of legal practitioners in and for the State of Western Australia, although he does not hold a current practice certificate. He is also the subject of orders by the Legal Practice Board (which he has unsuccessfully challenged) preventing him from practising law on his own account. I referred to those matters in my reasons for decision in Thies v Chin [2010] WASC 111. By reference to O 25, the poverty of a plaintiff is not a basis for the ordering of security.…

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: [2010] WASC 169
Decision Date: 8 JULY 2010

CaseChat Overview and Summary

The case of Re Michelides; Ex Parte Chin [No 2] involved the applicant, Chin, seeking an order for security for costs from the respondent, Michelides, based on the latter's unsatisfied judgment debts. The matter was heard in the Supreme Court of Western Australia. Chin's application for security for costs hinged on the inherent weakness of Michelides' application for relief under section 36 of the Magistrates Court Act 2004 (WA), which aimed to set aside a default judgment previously obtained against him.

The court was required to determine whether the application for security for costs should be granted, considering the discretionary nature of the order and the specific circumstances of the case. The legal issues included whether the unsatisfied judgment debts of the respondent indicated a likelihood of an inability to pay costs if the applicant was ultimately unsuccessful, and whether there were any inherent weaknesses in the respondent's application for relief that could influence the court's discretion.

In delivering its decision, the court noted the importance of discretionary considerations when deciding on an order for security for costs. The court found that while the unsatisfied judgment debts were relevant, they did not alone establish a likelihood of the respondent being unable to pay costs if Chin were to succeed. Additionally, the court examined the respondent's application for relief under section 36 of the Magistrates Court Act 2004 (WA) and identified certain inherent weaknesses, including the respondent's failure to provide adequate evidence to support his application. Based on these findings, the court determined that the application for security for costs should be dismissed.

The court's final orders were that the application for security for costs be dismissed, with no orders as to costs. This decision highlighted the importance of a comprehensive assessment of discretionary factors and the quality of the respondent's application for relief in determining the appropriateness of an order for security for costs.

Orders