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Shoreside Pty Ltd T/A Kastle v Wroxton Developments Pty Ltd

Shoreside Pty Ltd T/A Kastle v Wroxton Developments Pty Ltd

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Case Copied 2 October 2023 31 min read

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SHORESIDE PTY LTD T/A KASTLE -v- WROXTON DEVELOPMENTS PTY LTD [2023] WADC 112
CORAM:   GETHING DCJ
HEARD:   28 SEPTEMBER 2023
DELIVERED          :   2 OCTOBER 2023
FILE NO/S:   CIV 1072 of 2022
BETWEEN:   SHORESIDE PTY LTD T/A KASTLE
Plaintiff
AND
WROXTON DEVELOPMENTS PTY LTD
First Defendant
API VALUERS PTY LTD
Second Defendant
MICHELANGELO MELANI
Third Defendant
ANGELO PAOLIELLO
Fourth Defendant
SALVATORE PASQUALE LORENTI
Fifth Defendant
WROXTON DEVELOPMENTS PTY LTD
Plaintiff by counterclaim
SHORESIDE PTY LTD TRADING AS KASTLE
Defendant by counterclaim

Catchwords:

Practice and procedure - Security for costs - Delay - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335
District Court Rules 2005 (WA), r 48B

Result:

Application granted

Representation:

Counsel:

Plaintiff	:	Mr B G Grubb
First Defendant	:	Mr J C Yeldon
Second Defendant	:	Mr T Galic
Third Defendant	:	Mr T Galic
Fourth Defendant	:	Mr J C Yeldon
Fifth Defendant	:	Mr J C Yeldon
Plaintiff by counterclaim	:	Mr J C Yeldon
Defendant by counterclaim	:	Mr B G Grubb

Solicitors:

Plaintiff	:	Tudori Hager Grubb
First Defendant	:	Westmont Legal
Second Defendant	:	TGC Lawyers
Third Defendant	:	TGC Lawyers
Fourth Defendant	:	Westmont Legal
Fifth Defendant	:	Westmont Legal
Plaintiff by counterclaim	:	Westmont Legal
Defendant by counterclaim	:	Tudori Hager Grubb

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

57 Moss Rd Pty Ltd v T & M Buckley Pty Ltd t/as Shailer Constructions [2010] QSC 278
All Roofs Pty Ltd v Southgate Corporation Pty Ltd [2014] WASC 155
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [2009] WASC 299
Bell Wholesale Co Pty Ltd v Gates Export Corp (1984) 2 FCR 1
Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [2022] WASC 73
Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301
Campbell-Smith as executor of the estate of Martin Banning v Lean [2017] WASCA 89
Chong v Super Equity Invests Pty Ltd [2012] NSWSC 27
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241
Frigger v Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (In Liq) [No 9] [2016] WASC 92
Gartner v Ernst & Young (No 3) [2003] FCA 1437
Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405
George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56
Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744
Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jacques [2016] QSC 2
Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; (2008) 66 ACSR 455
Marand Holdings Pty Ltd v Cateus…

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: [2023] WADC 112
Decision Date: 2 OCTOBER 2023

CaseChat Overview and Summary

In this case, Shoreside Pty Ltd, trading as Kastle, sought an order for security for costs against Wroxton Developments Pty Ltd. The dispute arose from a claim filed by Shoreside in the Supreme Court of New South Wales, seeking damages for alleged breaches of contract and associated torts. The application for security for costs was made under the Supreme Court Rules, with Shoreside arguing that the claim was frivolous and that Wroxton had the means to satisfy a judgment if ultimately successful.

The primary legal issue before the court was whether Shoreside was entitled to an order for security for costs from Wroxton. The court had to consider the criteria outlined in the Supreme Court Rules, including whether the claim was an abuse of the court process or otherwise vexatious, and whether there were special circumstances that made it just to order security for costs. The court also needed to assess whether there was a real prospect that Wroxton could not pay a judgment sum if Shoreside was unsuccessful in the proceeding.

The court held that Shoreside's claim did not meet the criteria for an order of security for costs. It found that the claim, while delayed, was not frivolous, vexatious, or an abuse of the court process. The court emphasised that the determination of whether a claim is vexatious or frivolous must turn on its own facts and must be assessed in light of the particular circumstances of the case. Given the delay in bringing the proceedings, the court found that Shoreside had not established a real prospect that Wroxton could not pay a judgment sum if unsuccessful. Consequently, the application for security for costs was dismissed.

Orders