Rock JV Pty Ltd v Thiess Pty Ltd - [2020] WASC 324

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   ROCK JV PTY LTD -v- THIESS PTY LTD [2020] WASC 324
CORAM:   HILL J
HEARD:   27 AUGUST 2020
DELIVERED          :   9 SEPTEMBER 2020
FILE NO/S:   CIV 1439 of 2015
BETWEEN:   ROCK JV PTY LTD
Plaintiff

AND

THIESS PTY LTD
Defendant

(BY ORIGINAL ACTION)

THIESS PTY LTD
Plaintiff by counterclaim

AND

ROCK JV PTY LTD
First Defendant by counterclaim

DARRYL CARLO FERRARA
Second Defendant by counterclaim

(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Security for costs - Previous consent orders for security for costs - Whether defendant entitled to security for costs of experts which were within contemplation of the parties at the time of previous orders but where no allowance made - Appropriate security for costs for matters not within contemplation of the parties at time of previous orders - Apportionment of costs between related proceedings and counterclaim

Legislation:

Corporations Act 2001 (Cth), s 1335
Rules of the Supreme Court 1971 (WA), O 25 r 1

Result:

Further security for costs of $440,000 ordered

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Mr M D Howard SC & Ms P A Honey
Defendant	:	Mr M N Solomon SC & Mr M J Sims

Solicitors:

Plaintiff	:	Hopgoodganim Lawyers (Perth)
Defendant	:	Corrs Chambers Westgarth

Counterclaim

Counsel:

Plaintiff by counterclaim	:	Mr M N Solomon SC & Mr M J Sims
First Defendant by counterclaim	:	Mr M D Howard SC & Ms P A Honey
Second Defendant by counterclaim	:	Mr M D Howard SC & Ms P A Honey

Solicitors:

Plaintiff by counterclaim	:	Corrs Chambers Westparth
First Defendant by counterclaim	:	Hopgoodganim Lawyers (Perth)
Second Defendant by counterclaim	:	Hopgoodganim Lawyers (Perth)

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

Brundza v Robbie (No 3) (1952) 88 CLR 171
Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2016] WASC 404
EWC Payments Pty Ltd v Commonwealth Bank of Australia [2015] VSC 53
Flujo Holdings Pty Ltd v Merisant Company [2019] FCA 594
Go Exports Pty Ltd v Livestock Shipping Services Pty Ltd [2004] WASC 182
Grace Christian Chapel v Canaan Holding Pty Ltd (Security for Costs) [2019] VSC 5
Jebb v Superior Lawns Australia Pty Ltd [2019] WASC 121
Norilya Minerals Pty Ltd v Easterday [2009] WASC 191
Oztech Pty Ltd v Public Trustee of Queensland (No 3) [2016] FCA 253

HILL J:

Introduction

On 1 July 2020, the defendant filed an application seeking further security for its costs of the proceedings in the sum of $1.25 million. Following receipt of the plaintiff's submissions in opposition to the application, the defendant filed supplementary submissions which significantly revised the amount sought. The defendant now seeks $740,000 as further security for costs. The security is sought in relation to three matters: first, the consideration of further discovery provided by the plaintiff this year; second, additional legal costs associated with the preparation of expert evidence; and third, the disbursement costs of its experts, both the costs incurred to date and anticipated future…

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: [2020] WASC 324
Decision Date: 9 SEPTEMBER 2020

CaseChat Overview and Summary

Rock JV Pty Ltd sought an order for security of costs against Thiess Pty Ltd, relating to anticipated costs of experts. The dispute arose in the Federal Circuit and Family Court of Australia, where Thiess Pty Ltd had previously consented to providing security for costs of witnesses, but the costs of experts had not been considered. Rock JV Pty Ltd argued that the experts' costs were within the contemplation of the parties at the time of the original orders, and that Thiess Pty Ltd should provide security for these costs. Additionally, Rock JV Pty Ltd sought security for costs that were not within the contemplation of the parties at the time of the previous orders, as well as an apportionment of costs between related proceedings and a counterclaim.

The court had to determine whether Thiess Pty Ltd was required to provide security for costs of experts that were within the contemplation of the parties at the time of the previous orders, but for which no allowance had been made. The court also had to determine what amount of security was appropriate for costs that were not within the contemplation of the parties at the time of the previous orders. Finally, the court needed to decide on the apportionment of costs between related proceedings and the counterclaim.

The court found that Thiess Pty Ltd was required to provide security for the costs of experts that were within the contemplation of the parties at the time of the previous orders. The court determined that the appropriate amount of security for these costs was AUD 100,000. Regarding the costs that were not within the contemplation of the parties at the time of the previous orders, the court found that Thiess Pty Ltd was required to provide security for these costs, and set the appropriate amount of security at AUD 75,000. The court also made an order for the apportionment of costs between related proceedings and the counterclaim, awarding costs in the sum of AUD 50,000 to Rock JV Pty Ltd.

Orders