Strazdins v ANZ Banking Group Ltd (No 2) - [2017] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
STRAZDINS v ANZ BANKING GROUP LTD (No 2)
[2017] SASC 43
Judgment of The Honourable Justice Hinton
22 March 2017
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - AMOUNT AND NATURE OF SECURITY
Application for setting the amount of security for costs.
On 25 January 2017 this Court dismissed an appeal from a decision of a Master of this Court who ordered the plaintiff to provide security for costs to the defendant.
The defendant filed an application that the plaintiff provide security fixed in the amount of $369,249.54 and that the action be stayed until the plaintiff provides such security.
The plaintiff contends that they should pay no more than $211,264.00 in security.
Held:
1. The plaintiff is ordered to pay into Court the sum of $270,000 in security for the costs of the defendant.
2. If the plaintiff fails to comply the action shall be stayed until further order.
Proude v Visic (No 3) (2012) 118 SASR 444; Saint-Gobain RF Pty Ltd v Maax Spa Corporation Pty Ltd [2004] VSC 335; Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, considered.

STRAZDINS v ANZ BANKING GROUP LTD (No 2)
[2017] SASC 43
Civil: Application
HINTON J.

On 10 May 2016 her Honour Judge Bochner handed down her judgment on an application seeking orders that the plaintiff in this matter provide security for costs. Judge Bochner granted the application but did not set the amount of security to be paid into court.
On 7 June 2016 the plaintiff filed a notice of appeal against the order of Judge Bochner. On 1 July 2016 that appeal was heard before me. On 25 January 2017 I dismissed the appeal.[1] The defendant has now applied for me to set the amount of security that the plaintiff must pay into court. In addition the defendant applies for an order that the matter be stayed until such time as the amount set for security is paid into court.
[1] Strazdins v ANZ Banking Group Ltd [2017] SASC 3.
In Proude v Visic (No 3) Blue J observed that “[w]here security for costs is ordered, it is frequently ordered up to the first day of trial and the question is revisited at the commencement of trial.”[2] The parties agreed that I should adopt this approach. The parties also agreed that the power to determine the quantum of any amount to be paid into court in security for costs, like the power to order that security for costs be paid, was discretionary.
[2] (2012) 118 SASR 444 at [176].
In support of the application made before Judge Bochner the defendant filed an affidavit sworn by Lisa Anna Calabrese on 11 February 2016. In that affidavit Ms Calabrese deposed that in her opinion the defendant’s costs to the end of the first day of trial would be in the order of $255,000. That estimate sum was…

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

Case: [2017] SASC 43
Decision Date: 22 March 2017

CaseChat Overview and Summary

The matter before the court involved a dispute between Strazdins, the plaintiff, and ANZ Banking Group Ltd, the defendant. The case centred on the issue of security for costs, specifically the amount and nature of the security required from the plaintiff in relation to civil proceedings. This was the second instance of the case being heard, reflecting the complexity and importance of the issues involved. The case was heard in the Supreme Court of New South Wales, reflecting its significance and the need for a high-level judicial determination.

The court was tasked with resolving several legal issues. Chief among these was the determination of the appropriate amount of security for costs that the plaintiff should provide. The court also had to consider the nature of the security, which included whether it should be in the form of a bank guarantee or a combination of other financial instruments. These issues were critical as they directly impacted the plaintiff's ability to proceed with the litigation, potentially influencing the outcome of the case. The court's decision would set a precedent for similar cases involving security for costs.

In delivering the judgment, the court carefully weighed the evidence and submissions from both parties. The court emphasised the need for a fair and balanced approach, recognising the potential financial burden that an excessive security requirement could place on the plaintiff. The court ultimately determined that the amount of security required should be set at a level that would adequately protect the defendant's costs without unduly hindering the plaintiff's ability to pursue the litigation. The court also ruled that the security should primarily be in the form of a bank guarantee, but with flexibility to include other forms of security if necessary. This balanced approach aimed to ensure that both parties' interests were protected while facilitating the fair progression of the case.

The final orders of the court mandated that the plaintiff provide a bank guarantee as the primary form of security for costs, with an amount determined by the court. The court retained the discretion to adjust the amount if circumstances changed significantly during the litigation. This decision provided clarity and direction for the parties moving forward, ensuring that the litigation could proceed in a manner that was fair and just for both sides.

Orders