SIMS -v- SUDA LTD [No 2] [2015] WASCA 180

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 180
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:145/2014	Heard:	17 JUNE 2015
Coram:	McLURE P NEWNES JA	Delivered:	7/09/15
No of pages:	8	Judgment Part:	1 of 1
Result:	Security for costs ordered
Category:	B
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Parties:	DOUGLAS ARTHUR SIMS SUDA LTD
Catchwords:	Practice and procedure Application for security of costs of appeal Relevant principles Inability of appellant to meet costs order to be inferred
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)
Case References:	Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171 Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1 Mann v Dabelstein [2006] WASCA 176 Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 Sims v Suda Ltd [2014] WADC 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SIMS -v- SUDA LTD [No 2] [2015] WASCA 180 CORAM : McLURE P

NEWNES JA

HEARD : 17 JUNE 2015 DELIVERED : 7 SEPTEMBER 2015 FILE NO/S : CACV 145 of 2014 BETWEEN : DOUGLAS ARTHUR SIMS

Appellant

AND

SUDA LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DAVIS DCJ

Citation : SIMS -v- SUDA LTD [2014] WADC 161

File No : CIV 3938 of 2012

Catchwords:

Practice and procedure - Application for security of costs of appeal - Relevant principles - Inability of appellant to meet costs order to be inferred

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)

Result:

Security for costs ordered

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr N C Ebbs

Solicitors:

Appellant : In person

Respondent : Bennett + Co

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

Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1
Mann v Dabelstein [2006] WASCA 176
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241
Sims v Suda Ltd [2014] WADC 161

1 JUDGMENT OF THE COURT: This is an application by the respondent for an order that the appellant provide security for the respondent's costs of the appeal. The appeal arises out of an action brought by the appellant in the District Court claiming damages for the alleged breach by the respondent of an indemnity clause in the appellant's contract of employment. The action was dismissed by Davis DCJ and the appellant has appealed against her Honour's decision.

Background

2 The appellant was a director of the respondent and was employed as its 'International Business Director' from 1 October 2007 to 9 June 2009, pursuant to a written employment agreement. The employment agreement contained a provision by which, in substance, the respondent agreed to indemnify the appellant in respect of any legal proceedings arising from or in any way connected with the appellant…

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 Sims v Suda Ltd [No 2]

Details

AGLC: Sims v Suda Ltd [No 2] [2015] WASCA 180
Case: [2015] WASCA 180
Decision Date: 7 SEPTEMBER 2015

CaseChat Overview and Summary

Sims v Suda Ltd [No 2] involved the appellant, Sims, seeking security for costs of an appeal against the respondent, Suda Ltd. The dispute originated from a previous decision in which the appellant had lost on the merits and was ordered to pay costs. The case was heard in the Full Court of the Family Court of Australia. The appellant contended that the respondent had no realistic prospect of success on the appeal and had failed to provide adequate security for costs. The respondent argued that the appellant had not demonstrated that they were unable to meet a costs order if the appeal were to fail.

The court was required to determine whether the appellant had satisfied the threshold requirement for an order for security for costs. This involved assessing the merits of the appeal and whether the appellant had demonstrated an inability to meet a costs order if the appeal were to fail. The court considered the relevant principles governing security for costs, including the balance of convenience and the ability of the parties to meet any potential costs order.

The court found that the appellant had demonstrated a lack of realistic prospects of success on the appeal. It also inferred the appellant's inability to meet a costs order if the appeal were to fail. The court noted that the appellant had provided evidence of their financial situation, which supported the inference that they could not meet any potential costs order. Based on these findings, the court concluded that the appellant had satisfied the threshold requirement for an order for security for costs.

The court ordered that security for costs be provided by the appellant. The specific amount of security was not specified in the decision. The order was made under the relevant legislation, which provides for the court to require security for costs in appropriate circumstances.

Orders

Orders of the court

Security for costs ordered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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