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Stuart v Mordialloc Sporting Club Inc

Stuart v Mordialloc Sporting Club Inc

Case [2020] VSC 658 8 October 2020

Appeal

Security for Costs

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 01124

RAYMOND JOHN STUART	Plaintiff
v
MORDIALLOC SPORTING CLUB INC. (ARN A0027737R) & ORS (ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	KENNEDY J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2020
DATE OF RULING:	8 October 2020
CASE MAY BE CITED AS:	Stuart v Mordialloc Sporting Club Inc
MEDIUM NEUTRAL CITATION:	[2020] VSC 658
RULING APPEALED FROM:	[2019] VSC 847 (Matthews JR)

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PRACTICE AND PROCEDURE – Security for costs – Appeal from decision of judicial registrar - Application for security for costs against a natural person – Whether reason to believe that the plaintiff will be unable to pay the defendant’s costs if he is unsuccessful - Whether any additional factor justifies security for costs being ordered - Appeal allowed – Security for costs granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Stark	Mahons with Yuncken & Yuncken Lawyers
For the Sixth Defendant	Mr S Horgan QC with Mr N Frenkel	HWL Ebsworth Lawyers

HER HONOUR:

This is an appeal by the sixth defendant (Mr Said) under r 84.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules) against certain orders of Judicial Registrar Matthews made on 13 March 2020.

In particular, Mr Said seeks to appeal orders that his application for security for costs be dismissed; further, that a notice to produce he issued be set aside.

The appeal is an appeal to be conducted by way of a hearing de novo.[1] However, the parties generally relied on the affidavits tendered at the hearing before the judicial registrar,[2] save that Mr Said also sought to rely on an affidavit of a Mr Stents, solicitor, and an affidavit of Mr Said, both dated 28 August 2020 (the two further affidavits).
[1]Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) r 84.05(4).
[2]Mr Said relied upon the affidavit of Evan Anthony Stents dated 30 August 2019, and two affidavits of Anthony Peterson dated 2 October 2019 and 8 November 2019. The plaintiff relied upon two affidavits of Richard John Ashley dated 3 October 2019 and 25 October 2019.

The two further affidavits were admitted into evidence with reasons to be given, below.

There are two further issues for consideration:

·whether an order for security for costs should be made; and
·whether a notice to produce issued by Mr Said should be set aside.

Background

The plaintiff commenced this proceeding against the Mordialloc Sporting Club (MSC) by statement of claim filed on 3 September 2018 (V1).

The plaintiff is a member and former director of MSC which is an association incorporated pursuant to the Associations Incorporation Reform Act2012 (Vic) (the Act).

MSC is also a tenant of property owned by John Barr Investments Pty Ltd (JBI). The lease between JBI and MSC gave MSC a right to purchase the freehold.…

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 Stuart v Mordialloc Sporting Club Inc

Details

AGLC: Stuart v Mordialloc Sporting Club Inc [2020] VSC 658
Case: [2020] VSC 658
Decision Date: 8 October 2020

CaseChat Overview and Summary

Stuart sought an order for security for costs against Mordialloc Sporting Club Inc. The dispute arose from a personal injury claim, where Stuart alleged that the club's negligence led to his injuries. The case was heard in the County Court of Victoria. Stuart applied for an order requiring the club to provide security for the defendant's potential costs if the plaintiff's claim was unsuccessful. The club opposed the application, arguing that there were no grounds for such an order. The court had to determine whether there were reasons to believe that Stuart would be unable to pay the club's costs if his claim failed, and whether any additional factors justified the granting of security for costs.

The court examined the principles governing security for costs, noting that the plaintiff must demonstrate a likelihood of being unable to pay the defendant's costs if the claim is unsuccessful. The judge also considered whether any additional factors, such as the nature of the claim or the financial circumstances of the parties, warranted the order. The court concluded that the plaintiff's financial situation and the club's potential exposure to significant costs if the claim was unsuccessful justified the grant of security for costs. The appeal was allowed, and the order for security was granted.

The court found that the plaintiff's financial circumstances, including limited assets and income, provided a strong basis for the order. Additionally, the court considered the club's potential liability for substantial costs if the plaintiff's claim was unsuccessful. The judge found that these factors justified the imposition of security for costs, balancing the plaintiff's right to access justice against the defendant's right to protect its financial interests. The court ordered Stuart to provide security for the club's costs in the event that the claim was unsuccessful.

Orders