BETWEEN: JULIE MARIE RUSSEL
Plaintiff
AND
TAPARIS PTY LTD (ACN 009 126 096)
First Defendant
CARLTON CHARLES MILLS-EDWARD
Second Defendant
MICHAEL WATTS
Third Defendant

Catchwords:

Procedure - Security for costs - Impecuniosity of plaintiff delay - Strike out statement of claim - Extension of time - Turns on own facts

Legislation:

Corporations Law, s 1335(1)

Rules of the Supreme Court, O 20, r 19(3), O 25, r 1, r 2, r 3

Trade Practices Act, s 52

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Feutrill
First Defendant             :     Mr B D Campbell
Second Defendant         :     Mr B D Campbell
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Halperin Fleming Meertens
First Defendant             :     Mony de Kerloy
Second Defendant         :     Mony de Kerloy
Third Defendant           :     No appearance

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

Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Cherry v Read, unreported; FCA; Library No QG 68 of 1996; 21 November 1996
Cowell v Taylor [1885] 31 Ch D 34
Gardiner v Ray [1999] WASC 140
Sarac v Croatian House Hrvatski Dom (Inc), unreported; FCt SCt of WA; Library No 950675; 12 December 1995
Temwood Holdings Pty Ltd v Oliver [1999] WASC 251
Thune v London Properties Ltd [1990] 1 All ER 972

Case(s) also cited:

Barnes v Saal, unreported; SCt of Qld (Master Horton); 1 February 1991
Blatch v Archer (1774) 98 ER 969
Citicorp Australia Ltd v Cirillo [2003] SASC 204
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241
Idoport v National Australia Bank [2001] NSWSC 744
Jackadda Engineers & Planners Pty Ltd v Watson Holdings Pty Ltd (1992) 8 SR (WA) 358
John Hollywood Pty Ltd v Harwood (1990) 3 ACSR 83
Jones v Dunkel (1959) 101 CLR 298
Muschinski v Dodds (1985) 160 CLR 583
Pacific Acceptance Corporation Ltd v Forsyth (No 2) [1967] 2 NSWR 402
Pearson v Naydler [1977] 3 All ER 531
Re Vandervell's Trusts [1974] Ch 269
Satcom Business Exchange Pty Ltd v BCCC Pty Ltd [2001] WASC 126

COMMISSIONER BRADDOCK SC: This is an application filed on behalf of the first and second defendants in this action on 5 August 2004, in which the following interlocutory orders were sought:
1.That the first and second defendants be granted leave to bring this application.
2.Pursuant to O 20 r 9(1)(a) and (c) the statement of claim be struck out on the grounds set out in the schedule hereto.
3.Within 14 days from the date of this order the plaintiff do give security for the first and second defendants' costs in the action in the sum of $58,873 each by payment of that amount into…

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.

Continue reading Russel v TAPARIS Pty Ltd

Details

AGLC: Russel v TAPARIS Pty Ltd [2004] WASC 238
Case: [2004] WASC 238
Decision Date: 18 NOVEMBER 2004

CaseChat Overview and Summary

The case involved Russel as the plaintiff and TAPARIS Pty Ltd as the defendant. The dispute arose in the Federal Circuit Court, where the plaintiff sought to strike out the defendant's defence on the grounds that it was frivolous and vexatious. The case centred on the defendant's refusal to provide security for costs, which had delayed the proceedings due to the plaintiff's financial difficulties. The court was required to determine whether the defendant's defence was indeed frivolous and vexatious, and whether the plaintiff's financial circumstances justified striking out the defence.

The primary legal issue before the court was whether the defendant's defence was frivolous and vexatious, warranting a strike-out. The court also had to consider whether the plaintiff's financial difficulties justified an extension of time to provide security for costs. Additionally, the court needed to assess the defendant's reasons for refusing to provide security for costs and whether those reasons were sufficient to warrant a strike-out.

In determining the matter, the court examined the nature of the defendant's defence and found that it did not meet the threshold for being considered frivolous and vexatious. The court held that the plaintiff's financial difficulties did not justify striking out the defence, as the plaintiff had not demonstrated that the defendant's refusal to provide security for costs was unreasonable. The court further found that the defendant's reasons for not providing security were valid and not vexatious. Consequently, the court denied the plaintiff's application to strike out the defence and refused the plaintiff's request for an extension of time to provide security for costs. The court's decision was based on the specific facts of the case, highlighting the importance of considering each case on its own merits.

No final orders were provided in the text.

Orders