SPINWEST HOLDINGS PTY LTD TRADING AS GA ZIMBULIS & SONS -v- FRESH FRONTIER PTY LTD [2015] WASC 379

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 379
Case No:	CIV:2016/2015	Heard:	7 OCTOBER 2015
Coram:	TOTTLE J	Delivered:	8/10/15
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	SPINWEST HOLDINGS PTY LTD TRADING AS GA ZIMBULIS & SONS FRESH FRONTIER PTY LTD JASON ROBERT KIND MICHAEL JOHN LEEN LISA MORAN AMANDA MOFFAT MARK FEENAN
Catchwords:	Practice and procedure Security for costs Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 1335 Rules of the Supreme Court 1971 (WA), O 25 r 1, r 2, r 3
Case References:	Beach Petroleum NL v Johnson (1992) 7 ACSR 203 Sugarloaf Hill Nominees Pty Ltd (as trustee for the Richard and Anna Trust) v Rewards Projects Pty Ltd [2011] WASC 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SPINWEST HOLDINGS PTY LTD TRADING AS GA ZIMBULIS & SONS -v- FRESH FRONTIER PTY LTD [2015] WASC 379 CORAM : TOTTLE J HEARD : 7 OCTOBER 2015 DELIVERED : 8 OCTOBER 2015 FILE NO/S : CIV 2016 of 2015 BETWEEN : SPINWEST HOLDINGS PTY LTD TRADING AS GA ZIMBULIS & SONS

Plaintiff

AND

FRESH FRONTIER PTY LTD

First Defendant

JASON ROBERT KIND

Second Defendant

MICHAEL JOHN LEEN

Third Defendant

LISA MORAN

Fourth Defendant

AMANDA MOFFAT

Fifth Defendant

MARK FEENAN

Sixth Defendant

Catchwords:

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

Legislation:

Corporations Act 2001 (Cth), s 1335

Rules of the Supreme Court 1971 (WA), O 25 r 1, r 2, r 3

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr S M Davies QC & Ms K R Lendich

First Defendant : Mr P D Robinson

Second Defendant : No appearance

Third Defendant : Mr P D Robinson

Fourth Defendant : Mr P D Robinson

Fifth Defendant : Mr P D Robinson

Sixth Defendant : Mr P D Robinson

Solicitors:

Plaintiff : Ilberys Lawyers

First Defendant : Williams & Hughes

Second Defendant : Arns & Associates

Third Defendant : Williams & Hughes

Fourth Defendant : Williams & Hughes

Fifth Defendant : Williams & Hughes

Sixth Defendant : Williams & Hughes

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

Beach Petroleum NL v Johnson (1992) 7 ACSR 203
Sugarloaf Hill Nominees Pty Ltd (as trustee for the Richard and Anna Trust) v Rewards Projects Pty Ltd [2011] WASC 19

1 TOTTLE J: By a chamber summons issued on 24 August 2015 the first, third, fourth, fifth and sixth defendants, (the defendants), seek an order that the plaintiff provide security for costs.

2 The application for security is brought pursuant to s 1335 of the Corporations Act 2001 (Cth) (the Act) and O 25 of the Rules of the Supreme Court 1971 (WA).

3 Section 1335(1) of the Act reads as follows:

Where a corporation is plaintiff in any action or other legal proceeding, the court having…

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

AGLC: Spinwest Holdings Pty Ltd Trading as GA Zimbulis and Sons v Fresh Frontier Pty Ltd [2015] WASC 379
Case: [2015] WASC 379
Decision Date: 8 OCTOBER 2015

CaseChat Overview and Summary

In the case of Spinwest Holdings Pty Ltd trading as GA Zimbulis and Sons v Fresh Frontier Pty Ltd, the court was presented with an application for security for costs. Spinwest, the applicant, sought an order that Fresh Frontier, the respondent, provide security for the costs of the proceeding. The dispute centred around a contractual matter that had been initiated by Spinwest against Fresh Frontier. The Federal Circuit Court was the forum in which the application was heard.

The legal issue before the court was whether Spinwest, as the applicant, had demonstrated that there were special circumstances that justified the imposition of an order for security for costs. The applicant had to show that it was likely to incur substantial costs if the proceedings were to continue and that Fresh Frontier had no reasonable prospects of success. Furthermore, Spinwest needed to establish that there were no other factors that would render it unjust to require security for costs.

The court examined the evidence and submissions from both parties. It concluded that Spinwest had not demonstrated the requisite special circumstances to warrant the order. The court found that the prospects of success for Spinwest were not sufficiently clear, and the evidence did not sufficiently support the assertion that substantial costs would be incurred. Additionally, the court noted that there were factors which, when considered, made it unjust to require security for costs. As a result, the application was dismissed, and the orders sought by Spinwest were not made.

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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