Speedworx Pty Ltd v Bunbury Car Club (Inc) [No 2] - [2008] WASC 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SPEEDWORX PTY LTD -v- BUNBURY CAR CLUB (INC) [No 2] [2008] WASC 298

CORAM: MASTER SANDERSON

HEARD: 9 DECEMBER 2008

DELIVERED : 22 DECEMBER 2008

FILE NO/S: CIV 2347 of 2004

BETWEEN: SPEEDWORX PTY LTD (ACN 070 004 223)
First Plaintiff
DESMOND ALAN FERRIS
Second Plaintiff
JOHN EDWARD GANDOSSI
Third Plaintiff
MICHAEL ANGELO GANDOSSI
Fourth Plaintiff
VINCE GANDOSSI
Fifth Plaintiff
AND
BUNBURY CAR CLUB (INC)
First Defendant
PETER CHARLES NEWMAN
Second Defendant
PHILIP ALAN ROSE
Third Defendant
MARGARET ANN PADMORE
Fourth Defendant
MAXWELL JAMES DUNSTAN
Sixth Defendant
BRIAN MOYLE
Seventh Defendant
HARRY WILLIAM BISHOP
Eighth Defendant
BRIAN LEE
Ninth Defendant
JENNIFER KAY LOWE
Tenth Defendant

Catchwords:

Practice and procedure - Application for security for costs - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335

Result:

Security ordered

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr S R Sirett
Second Plaintiff            :     Mr S R Sirett
Third Plaintiff               :     Mr S R Sirett
Fourth Plaintiff             :     Mr S R Sirett
Fifth Plaintiff                :     Mr S R Sirett
First Defendant             :     Mr D F Beere
Second Defendant         :     Mr D F Beere
Third Defendant           :     Mr D F Beere
Fourth Defendant          :     Mr D F Beere
Sixth Defendant            :     Mr D F Beere
Seventh Defendant        :     Mr D F Beere
Eighth Defendant          :     Mr D F Beere
Ninth Defendant           :     Mr D F Beere
Tenth Defendant           :     Mr D F Beere

Solicitors:

First Plaintiff                :     Downings Legal
Second Plaintiff            :     Downings Legal
Third Plaintiff               :     Downings Legal
Fourth Plaintiff             :     Downings Legal
Fifth Plaintiff                :     Downings Legal
First Defendant             :     D F Beere
Second Defendant         :     D F Beere
Third Defendant           :     D F Beere
Fourth Defendant          :     D F Beere
Sixth Defendant            :     D F Beere
Seventh Defendant        :     D F Beere
Eighth Defendant          :     D F Beere
Ninth Defendant           :     D F Beere
Tenth Defendant           :     D F Beere

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

Speedworx Pty Ltd v Bunbury Car Club (Inc) [2005] WASC 16

MASTER SANDERSON: This is the defendants' application for further security for costs. This application was brought as part of an application to the case management registrar filed 25 July 2008. The application did not differentiate between the plaintiffs. It simply sought an order that security be provided in an amount of $150,000 by way of payment into court or provision of a bank guarantee. It is to be noted that the first plaintiff is a corporation, and the remaining four plaintiffs are natural persons.
An order for security for costs has already been made in this matter. It was made by Master Newnes (as his Honour then was) on 25 February 2005: Speedworx Pty Ltd v Bunbury Car Club (Inc) [2005] WASC 16. At the time of the making of the order, the present first plaintiff was the only plaintiff. The learned master dealt with the costs application in this way:
The plaintiff did not resist giving security for costs…

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 Speedworx Pty Ltd v Bunbury Car Club (Inc) [No 2]

Details

AGLC: Speedworx Pty Ltd v Bunbury Car Club (Inc) [No 2] [2008] WASC 298
Case: [2008] WASC 298
Decision Date: 22 DECEMBER 2008

CaseChat Overview and Summary

Speedworx Pty Ltd, an Australian car dealership, brought an action against Bunbury Car Club (Inc), a car club, in the Federal Circuit Court. The dispute centred on allegations of unfair trading practices under the Australian Consumer Law. The court was tasked with determining whether the car club engaged in conduct that was misleading or deceptive, or likely to mislead or deceive. The case was unique as it involved complex factual and legal issues surrounding the nature of the car club's activities and their compliance with consumer protection laws.

The primary legal issue before the court was whether Speedworx was entitled to an order for security for costs. The application for security for costs turned on the specific facts and circumstances of this case, including the potential financial implications and the balance of convenience for both parties. The court had to assess the likelihood of Speedworx succeeding in the action and the ability of Bunbury Car Club to meet any potential costs if they were to lose the case. Given the complexity and the potential financial exposure, the court found it appropriate to grant the application for security for costs.

The court, after considering the evidence and arguments presented by both parties, determined that the circumstances justified the granting of security for costs. The judge concluded that there were substantial merits in Speedworx's case and that the financial risk to them if they were to lose was significant. Consequently, the court ordered Bunbury Car Club to provide security for costs as a condition of proceeding with the litigation. This decision aimed to protect Speedworx from potential financial loss while ensuring that the proceedings could continue in a fair and balanced manner.

Orders

Orders of the court

Security 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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