Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia
[2005] WASC 31
•9 MARCH 2005
ROSEBRIDGE NOMINEES PTY LTD -v- COMMONWEALTH BANK OF AUSTRALIA & ORS [2005] WASC 31
| Link to Appeal : | [2005] WASCA 211 [2005] WASCA 211 [2005] WASCA 211 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 31 | |
| 09/03/2005 | |||
| Case No: | CIV:1235/1999 | 23 FEBRUARY 2005 | |
| Coram: | MASTER SANDERSON | 23/02/05 | |
| 3 | Judgment Part: | 1 of 1 | |
| Result: | Orders made in terms on minute | ||
| B | |||
| PDF Version |
| Parties: | ROSEBRIDGE NOMINEES PTY LTD COMMONWEALTH BANK OF AUSTRALIA CORRS CHAMBERS WESTGARTH (A FIRM) WFB PTY LTD |
Catchwords: | Practice and procedure Form of orders Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COMMONWEALTH BANK OF AUSTRALIA
First Defendant
CORRS CHAMBERS WESTGARTH (A FIRM)
Second Defendant
WFB PTY LTD
Third Defendant
Catchwords:
Practice and procedure - Form of orders - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Orders made in terms on minute
Category: B
Representation:
Counsel:
Plaintiff : Mr R I Viner QC
First Defendant : Mr P A Sheiner
Second Defendant : Mr A T Macknay
Third Defendant : Mr P K Walton
Solicitors:
Plaintiff : Gebarski & Associates
First Defendant : Christensen Vaughan
Second Defendant : Blake Dawson Waldron
Third Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: When this matter came on in chambers again on 23 February I made orders dealing with the applications by each of the defendants for security for costs. The orders that I made were in terms of a minute of proposed orders prepared by the first defendant. Those orders anticipated the execution by one Tony Grego, a director of the plaintiff, of a document entitled "Deed of Guarantee" which is annexed to the minute.
2 The plaintiff has recently changed solicitors. Mr Viner QC of counsel appeared for the plaintiff at the last hearing and opposed the making of orders in terms of the minute. He sought to have the matter adjourned pending determination of the plaintiff's application for trial of a preliminary issue. It was the plaintiff's position that if an order was made for trial of a preliminary issue, that would substantially affect both the amount of the security for costs and the question of whether security ought be given at all. Counsel for each of the defendants opposed any adjournment, pointed to the long delay in bringing this matter to a conclusion and noted that at the original hearing of the application for security for costs there had been no suggestion of determination of a preliminary issue.
3 I determined that the order ought be made. This matter is one of long-standing and it is clearly necessary to bring the applications to a conclusion. Moreover, the deed of guarantee to which I have referred was originally drafted by the plaintiff's then solicitors. I understand that some amendments were made to the deed at the instigation of the defendants, but nonetheless the deed as presented was largely in terms proposed by the plaintiff. The form of the deed had been accepted by the defendants, albeit reluctantly. In my view it was too late to adopt any other course but make orders which anticipated that the deed would be signed.
4 Having failed in his application to have the matter adjourned, Mr Viner QC submitted that amendments should be made to the deed. He anticipated altering the circumstances in which the guarantee could be called upon. It was his submission that such amendment would better reflect the right of the defendants only to call upon the guarantee when the action was finally concluded. I was not persuaded that any such amendment was necessary. As I have said above, the deed was the result of discussions between the parties and was proposed by the plaintiff. In my view there is no warrant at all to tinker with its agreed terms.
5 For these reasons I made orders in terms of the minute.
1
1
1