Rowe v Andrews - [2021] TASSC 34

[2021] TASSC 34

COURT: SUPREME COURT OF TASMANIA

CITATION: Rowe v Andrews [2021] TASSC 34

PARTIES:  ROWE, Amelia Jane
  v
  ANDREWS, Terrence
  ANDREWS, Josephine (also known as Josephine SMYTH)
  INSPIRED DEVELOPMENTS (AUSTRALIA) PTY LTD
  ANDREWS, Craig Morgan
  ALLEN, Nicholas
  VISIONTAS PTY LTD

FILE NO:  456/2020
DELIVERED ON:  11 August 2021
DELIVERED AT:  Hobart
HEARING DATE:  28 July 2021
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Security for costs – Factors relevant to exercise of discretion – Impecuniosity – Generally – Plaintiff a natural person – Plaintiff not suing only for the benefit of others – Application dismissed.
Aust Dig Procedure [1751]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine SC
             Third & Fifth Defendants:            G Bigmore QC
Solicitors:
             Plaintiff:  Rae & Partners
             Third Defendant:     Dobson Mitchell Allport
             Fifth Defendant:  Paula Sutherland & Associates

Judgment Number: [2021] TASSC 34
Number of paragraphs: 31

Serial No 34/2021
File No 456/2020

AMELIA JANE ROWE v TERRENCE ANDREWS, JOSEPHINE ANDREWS
(also known as JOSEPHINE SMYTH), INSPIRED DEVELOPMENTS (AUSTRALIA) PTY LTD, CRAIG MORGAN ANDREWS, NICHOLAS ALLEN AND
VISIONTAS PTY LTD

REASONS FOR JUDGMENT HOLT AsJ

11 August 2021

The third and firth defendants have applied for orders that the plaintiff, Amelia Jane Rowe, give security for their costs in the sum of $100,000 each with the claim against them being stayed until such security is given.
The application has been made relying upon the inherent jurisdiction of the Court to make such orders and also upon the Supreme Court Rules 2000, r 828(1)(c), which is as follows:
"828 Security for costs
(1) The Court or a judge, on the application of a party to proceedings, may order an opposite party to give security for the costs of the party applying for security and that the proceedings against the party applying for security be stayed subject to the provision of security if the opposite party from whom security is sought is a plaintiff, applicant, defendant pursuing a counterclaim or respondent pursuing a cross application and if –
…
(c) the opposite party, not being a party who sues in a representative capacity, sues only for the benefit of some other person and there is reason to believe that the opposite party does not have sufficient assets in Tasmania to pay the costs of the party applying for security; or
…"
The inherent jurisdiction has not been ousted or fettered by the terms of the rule. Each case depends on its particular circumstances with the governing consideration being what is required by the justice of the matter. This was explained by Kirby J in Merribee Pastroral Industries Pty Ltd v Australia New Zealand Banking Group Ltd [1998] HCA 41, (1998) 193 CLR 502 at [26] as follows:
"Without any pretence to having conducted an exhaustive analysis of the decisions in this Court where orders for security for costs have been sought, in appeals, a number of propositions can be stated which it may be useful to collect:
1 There…

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: [2021] TASSC 34
Decision Date: 11 August 2021

CaseChat Overview and Summary

In the case of Rowe v Andrews, the plaintiff, Rowe, sought security for costs from the defendant, Andrews, in a legal dispute. The application was heard by the Supreme Court of Victoria. The nature of the dispute was not explicitly detailed in the case summary, but it is apparent that Rowe was seeking financial protection to cover potential legal costs in the event of an unsuccessful claim against Andrews.

The primary legal issue before the court was whether the plaintiff, Rowe, should be granted security for costs. The court had to consider the factors relevant to the exercise of its discretion in granting such an order, particularly focusing on the plaintiff's financial circumstances. Rowe argued that they were impecunious, meaning they lacked sufficient means to cover potential costs if the application was unsuccessful. Additionally, it was noted that Rowe was not suing solely for the benefit of others, which could be a factor in determining the appropriateness of the security for costs.

The court, after considering the arguments presented, found that while Rowe's financial situation was precarious, it did not reach the level of impecuniosity necessary to warrant an order for security for costs. The court emphasised the need for the plaintiff to demonstrate a clear and compelling case of financial hardship. As Rowe's arguments did not meet this threshold, the application for security for costs was dismissed. This decision underscores the importance of stringent criteria when granting such orders to prevent unwarranted financial burdens on defendants.

Orders