SPARGOS MINING NL -v- FULLER & ORS [2003] WASC 37

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 37
Case No:	CIV:1417/1992	Heard:	26 FEBRUARY 2003
Coram:	MASTER SANDERSON	Delivered:	13/03/03
No of pages:	11	Judgment Part:	1 of 1
Result:	Security ordered Application to countermand entry for trial refused
Category:	B
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Parties:	SPARGOS MINING NL MICHAEL JOHN FULLER CECIL DENNISTON BURNEY PETER GEOFFREY JERMYN
Catchwords:	Practice and procedure Application for security for costs Application to countermand entry for trial Delay in bringing application for security Significance of litigation funding arrangement Turns on own facts
Legislation:	Corporations Act, s 1335
Case References:	Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 2 ACLC 286 Chartspike Pty Ltd (In Liq) v Chahoud [2001] NSWSC 585 Hughes Bros Pty Ltd v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney, unreported; SCt of NSW; 55003 of 1989; 7 November 1995 Interchase Co Ltd (In Liq) v Colliers Jardine & Ors, unreported; SCQ; 26 June 1995; BC 9505976 Southern Cross Exploration NL v Fire & All Risk Insurance Co Ltd (1985) 1 NSWLR 114 Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 Aspendale Pastoral Co Pty Ltd v W J Drever Pty Ltd (1983) 7 ACLR 937 Black v Eastern Goldfields Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 930039; 16 December 1992 BPM Pty Ltd v HPM Pty Ltd, unreported; FCt SCt of WA; Library No 960206; 17 April 1996 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 Buckley v Bennells Design & Construction Pty Ltd (1974) 1 ACLR 301 Ibcah Pty Ltd v Putnin, unreported; SCt of WA; Library No 930642; 25 November 1993 Idoport Pty Ltd v National Australia Bank [2001] NSWSC 744 Interwest Ltd v Tricontinental Corp Ltd (1991) 5 ACSR 621 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Milingimbi Educational and Cultural Association Inc v Davis, unreported; SCt of NT; SC259/1987; 12 October 1990 R P Securities Pty Ltd v Martin, unreported; SCt of WA; Library No 6387; 7 August 1986 Shaftesbury Nominees Pty Ltd (Receivers & Managers Appointed) v Brixmond Pty Ltd [1992] 2 QdR 543 Smail v Burton; Re Insurance Associates Pty Ltd (In Liq) [1975] VR 776 Tune Masters Pty Ltd (In Liq) v Sectum Pty Ltd & Ors, unreported; SCt of WA; Library No 970267; 23 May 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SPARGOS MINING NL -v- FULLER & ORS [2003] WASC 37 CORAM : MASTER SANDERSON HEARD : 26 FEBRUARY 2003 DELIVERED : 13 MARCH 2003 FILE NO/S : CIV 1417 of 1992

CIV 2857 of 1991

CIV 2863 of 1991

CIV 2876 of 1991

BETWEEN : SPARGOS MINING NL

Plaintiff

AND

MICHAEL JOHN FULLER

First Defendant

CECIL DENNISTON BURNEY

Second Defendant

PETER GEOFFREY JERMYN

Third Defendant

Catchwords:

Practice and procedure - Application for security for costs - Application to countermand…

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 Spargos Mining NL v Fuller

Details

AGLC: Spargos Mining NL v Fuller [2003] WASC 37
Case: [2003] WASC 37
Decision Date

CaseChat Overview and Summary

In the matter of Spargos Mining NL v Fuller and others, the Supreme Court of Western Australia dealt with two primary applications brought by the third defendant, Peter Geoffrey Jermyn. The first application sought security for costs under the Corporations Act, while the second application sought to countermand the entry for trial. The plaintiff, Spargos Mining NL, admitted it could not meet any costs order if the actions were unsuccessful. The third defendant's solicitors estimated the trial would last 68 days and sought security of $280,525, with a daily deposit of $8,606 during the trial. However, the plaintiff's solicitors estimated the trial would last 15 days. Given the uncertainty and complexity of the case, the court opted for the plaintiff's estimate, resulting in an order for security of $150,000.

The court found that while the third defendant's delay in seeking security for costs was a factor against ordering security, it was not decisive. The presence of a litigation funder behind the plaintiff, which stood to benefit from the litigation, was considered a significant factor in favour of ordering security. The court dismissed the application to countermand the entry for trial but ordered that the plaintiff provide the third defendant with an indication of the documents intended to be relied upon at trial. The court reserved further directions until the matter was allocated a hearing date.

Orders