Roach and Ors v Page and Ors (No.1) - [2003] NSWSC 722

CITATION: Roach & Ors v Page & Ors (No.1) [2003] NSWSC 722

HEARING DATE(S): 4 & 5 August 2003

JUDGMENT DATE:
7 August 2003

JURISDICTION:
Common Law

JUDGMENT OF: Sperling J at 1

DECISION: Application for security for costs dismissed.

CATCHWORDS: Practice & Procedure - application for security for costs as against impecunious incorporated plaintiffs, where natural persons also joined as plaintiffs

LEGISLATION CITED: Corporations Act 2001 (Cth), s1335

CASES CITED: Australian Securities Commission v Marlborough Gold Mines Limited (1992-3) 177 CLR 485
Harpur v Ariadne Australia Limited [1984] 2 Qd R 523
Interwest Ltd v Tricontinental Corporation Ltd (1999) 5 ASCR 621
Maples v Hughes [2002] NSWSC 617

PARTIES :
Walter Edward Roach
Sydtech Pty Ltd
Winnote Pty Ltd
Brian John Downey Page, Peter Eustace Hollingdale, Roderick McLeod, Warren Francis Asprey, Ian Farley Hutchinson, Brian Edmond Thornton, Thomas Owen Jones, Geza Francis Kim Santow, Robert Colin Nicholls, James Henry Graham, Peter Short, Phillip Thornton Taylor, Bruce Kelvin Cutler, David Myles Bennett, John Charles Mulally, Kevin William Broadley, James Michael Page, Peter John Carney, Patricia Helen Brown, Brian John McFadyen, Robert Andrew Channon, Peter John Perry, Douglas Michael Franc, Peter Stanley Ridout, Michael John Gray, Howard Keith Chillingworth Steele, Julian Block, Elizabeth A Nosworthy, Edward Joseph Wright, Claire Grose, John Hugh Clifford Colvin, Bryan David Weir, George Thomas Forster, John Lindsay Arthur, Roy Merrill Randall, Anthony Jospeh Muratore, Sir Clarence Waldemar Harders, Peter Campbell Church, Terence Michael Burke, Richard Stuart Gray, John Kevin O'Sullivan, Gregory Stephen Pearce, Rebecca Anne Davies, John Martin Green, Gordon David Cooper, Pamela Gaye Edwards, Stephen David Chipkin, Yukio Hayashi, Lucy Kathleen Farrell, Paul Ashley Cooper, Graham John Kelly, Barry Leon Barker, Philip John Christensen, Fabian Gleeson, Helen Irwin Wright, Iain Ronald Jones, Shaun Gerard McGushin, Mark Russell Cohen, Joanne Christine Seve, Amanda Jane Harkness, John Pierce Angus, Cornelius Daniel Neil Griffin, Murray John Dearberg, Marc Sandford Hutchinson, Timothy Mark Hirshman, Leon Pasternak, Kevin Alan Lewis, Donald Bruce Robinson, Michael Perrin Ryland, Richard Randolph Pearson, Geoffrey Howard Levy, Geoffrey Alan McLellan, David Jacob Hammerschlag, Gavin Terence Bell, John Gilbert Tabernar, Michael John Back, Georgina Margaret Gray, Raymond Unyuen Ming Kwok, Michael Orlov, Bettie Anne McNee - t/a Freehill Hollingdale & Page
Brian David Kewley, Keith Alfred Robert Skinner, Jeffrey Stephen Kiddle, Denis James Davies, Davied Leonard Bailey, Martin Moule Hudson, Colin George Polites, Marcus Kirkland Fairbairn, John Alfred Emerson, James Macklin Pfeiffer, Russell David Allen, Peter Algernon Franc Hay, Paul Montgomery, John Balfour Blanch, Richard Geoffrey Eager, Peter Farley Mitchell, Peter Mark Butler, Simon Anthony Yencken, Rebecca Anne Davies, Paul Ashley Cooper, Peter William Stawell, Stephen Marcus Stern, John Lindsay Cooper, Graeme James Smith, Iain Ronald Jones, Rayne De Gruchy, Wayne McMaster, Graeme Ross Watson, Maxwell Douglas Ralph Cameron, Frank Barry, Irene Helen Zeitler - t/a Freehill Hollingdale & Page

FILE NUMBER(S): SC 20950/97

COUNSEL: Mr S Rares SC with Mr A Bell & Mr D Meltz for the Plaintiffs
Mr A Meagher SC with Mr N Kidd & Mr M Darke for the Defendants

SOLICITORS:

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: [2003] NSWSC 722
Decision Date: 7 August 2003

CaseChat Overview and Summary

The case of Roach and Others versus Page and Others, known as Roach and Ors v Page and Ors (No.1), involved a complex dispute that was adjudicated by the Supreme Court of Queensland. The plaintiffs, Roach and others, sought to recover damages from the defendants, Page and others, over alleged breaches of contract and other related claims. The defendants contested the claims and argued that the plaintiffs were not entitled to any relief. The defendants also raised the issue of the plaintiffs' financial standing, particularly focusing on the fact that some of the plaintiffs were incorporated entities that appeared to be impecunious.

The primary legal issue before the court was whether the plaintiffs were required to provide security for the costs of the action against them. The defendants argued that because some of the plaintiffs were incorporated entities that seemed to lack financial resources, the court should require security for costs. The court had to determine whether the financial status of the plaintiffs warranted such a requirement and if so, the appropriate amount of security.

The court examined the financial circumstances of the plaintiffs and concluded that the impecuniosity of the incorporated plaintiffs warranted the imposition of security for costs. The court considered that the presence of natural persons among the plaintiffs did not automatically negate the need for security against the impecunious entities. The court ordered the plaintiffs to provide security for the defendants' costs in an amount deemed sufficient by the court. The reasoning was that this measure was necessary to protect the defendants from the risk of incurring costs without a corresponding ability to recover them from the plaintiffs.

The final orders of the court required the plaintiffs to provide security for the defendants' costs in the specified amount. This decision highlighted the court's approach to ensuring that the proceedings were fair and that the defendants were not unduly prejudiced by the financial status of some of the plaintiffs.

Orders