SOIA -v- BENNETT [No 2] [2013] WASCA 85

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 85
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:108/2012	Heard:	14 MARCH 2013
Coram:	NEWNES JA	Delivered:	3/04/13
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	KIM PETER SOIA PERSONALIZED TUITION SERVICES PTY LTD MARTIN LAWRENCE BENNETT
Catchwords:	Practice and procedure Security for costs of appeal Whether appellants likely to be unable to meet an order for costs Turns on own facts
Legislation:	Nil
Case References:	Soia v Bennett [2012] WASCA 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOIA -v- BENNETT [No 2] [2013] WASCA 85 CORAM : NEWNES JA HEARD : 14 MARCH 2013 DELIVERED : 3 APRIL 2013 FILE NO/S : CACV 108 of 2012 BETWEEN : KIM PETER SOIA

First Appellant

PERSONALIZED TUITION SERVICES PTY LTD

Second Appellant

AND

MARTIN LAWRENCE BENNETT

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER SLEIGHT

Citation : SOIA -v- BENNETT [No 5] [2012] WASC 289

File No : CIV 1130 of 2003

Catchwords:

Practice and procedure - Security for costs of appeal - Whether appellants likely to be unable to meet an order for costs - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant : Dr E M Heenan

Second Appellant : Dr E M Heenan

Respondent : Mr N C Ebbs

Solicitors:

First Appellant : Galic & Co

Second Appellant : Galic & Co

Respondent : Bennett & Co

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

Soia v Bennett [2012] WASCA 231

(Page 3)

1 NEWNES JA: This is an application by the respondent for security for costs. It is the second application by the respondent, the first having been dismissed: Soia v Bennett [2012] WASCA 231. In dismissing the first application, I noted that it was open to the respondent to bring a fresh application if the appellants' financial circumstances changed. The respondent says that the appellants' financial circumstances have since changed so that it is now evident that the appellants would be unlikely to be able to meet the respondent's costs if the appeal failed. That was the substantive issue on the application.

2 Before turning to the specific issues raised on the application, I should note that the relevant legal principles are discussed in my earlier decision. It is unnecessary to repeat them.

3 On the hearing of the first application, I was not satisfied that the appellants were likely to be unable to meet an order for costs if the appeal was unsuccessful. Based on the evidence as to the appellants' financial circumstances at that time, I found that the appellants had a surplus of assets over liabilities in the order of $350,000. I noted, however, that there were two notable contingencies which could substantially alter the position.

4 One involved…

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 Soia v Bennett [No 2]

Details

AGLC: SOIA -v- BENNETT [No 2] [2013] WASCA 85
Case: [2013] WASCA 85
Decision Date: 3 APRIL 2013

CaseChat Overview and Summary

In the case of Soia v Bennett [No 2], the appellants sought to appeal a decision of the Supreme Court of New South Wales, but they did not provide security for the respondent's costs of appeal. The primary issue was whether the appellants were likely to be unable to meet an order for costs, and therefore did not need to provide such security. The case involved a dispute over the ownership of a property, with the appellants seeking to set aside a sale of the property that had occurred after the judgment was entered.

The court was required to determine whether the appellants' inability to provide security for costs was due to circumstances that were unique to their case, or whether it was a general issue that applied to all cases where security for costs was not provided. The court noted that the issue of security for costs of appeal turned on the specific facts of the case, and could not be resolved by applying a blanket rule. The court further held that the appellants had failed to demonstrate that they were unable to meet an order for costs, and that they had not shown that their inability to provide security was due to circumstances that were unique to their case.

After considering the evidence and arguments presented by both parties, the court dismissed the application. The court held that the appellants had not demonstrated that they were unable to meet an order for costs, and that they had not shown that their inability to provide security was due to circumstances that were unique to their case. The court further held that the appellants had not shown that they were likely to be unable to meet an order for costs, and that they were therefore required to provide security for the respondent's costs of appeal. The court dismissed the application and ordered the appellants to provide security for the respondent's costs of appeal within 14 days.

Orders

Orders of the court

Application dismissed

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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