Stuart v Mordialloc Sporting Club Inc (No 2) - [2019] VSC 847

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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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2019, supplementary submissions filed 4 December 2019
DATE OF RULING:	20 December 2019
CASE MAY BE CITED AS:	Stuart v Mordialloc Sporting Club Inc & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 847

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PRACTICE AND PROCEDURE – Security for costs – Application for security for costs against a natural person – Inherent jurisdiction of the Court – Whether circumstances of the case justify order for security for costs being made – Whether the applicant for security has established that the plaintiff is impecunious – Whether any other factors justify security for costs being ordered – Knight v Beyond Properties Pty Ltd [2005] FCA 764 – Von Marburg v Aldred & Anor (No 3) [2017] VSC 146 – Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 – Impecuniosity not established – Security for costs not granted

PRACTICE AND PROCEDURE – Notice to produce – Application by the plaintiff to set aside notice to produce served by the applicant for security – Crown Joinery Pty Ltd [2007] VSC 214 – Equuscorp Pty Ltd v Malcolm [2001] VSC 66 – Notice to produce set aside.

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

JUDICIAL REGISTRAR:

Introduction

By summons filed on 3 September 2019, the sixth defendant, Kevin Said (‘Sixth Defendant’) seeks orders that Raymond John Stuart (‘Plaintiff’) provide security for his costs of the proceeding up to and including mediation in the amount of $88,904.78 (‘Security Application’).[1]
[1]By orders made on the Court’s own motion on 21 November 2019, the Security Application was referred to me for hearing and determination pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

In support of his Security Application, the Sixth Defendant relies upon the affidavits of:

(a) Evan Anthony Stents, sworn 30 August 2019 (‘Stents Affidavit’). Mr Stents is a partner in the firm HWL Ebsworth Lawyers (‘HWLE’), the solicitors for the Sixth Defendant;

(b) Anthony Peterson, affirmed 2 October 2019. Mr Peterson is a senior associate employed by HWLE; and

(c) Mr Peterson, affirmed 8 November 2019.

The Plaintiff opposes the Security Application, and relies on two affidavits sworn by Richard John Ashley sworn on 3 October 2019 and 25 October 2019. Mr Ashley is a solicitor employed by Mahons with Yuncken and Yuncken Lawyers (‘MYYL’), the solicitors for the plaintiff.

Both parties filed written outlines of submissions: the Sixth Defendant filed an outline on 8 November 2019; and the Plaintiff filed an outline on 15 November 2019.

At the outset of the hearing…

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: [2019] VSC 847
Decision Date: 20 December 2019

CaseChat Overview and Summary

Stuart, the plaintiff, filed a lawsuit against Mordialloc Sporting Club Inc, the defendant, in the Supreme Court of Victoria, presenting a dispute involving a claim for damages. The crux of the case centred on the plaintiff's request for security for costs against the defendant, who is a natural person. The plaintiff also sought to set aside a notice to produce documents served by the defendant. The court was tasked with deciding whether the circumstances justified ordering security for costs, whether the plaintiff's impecuniosity was established, and whether any other factors warranted such an order. Additionally, the court had to determine whether the notice to produce should be set aside.

The court examined the inherent jurisdiction to order security for costs against a natural person and whether the plaintiff had established their impecuniosity. The plaintiff argued that the defendant's financial status and the potential for the defendant to disappear or leave the jurisdiction justified the order. However, the court found that the plaintiff had not established their impecuniosity. The court also considered other factors, such as the potential for dissipation of assets and the likelihood of the defendant leaving the jurisdiction, but concluded that these factors were not sufficient to justify ordering security for costs. The court relied on previous cases such as Knight v Beyond Properties Pty Ltd [2005] FCA 764, Von Marburg v Aldred & Anor (No 3) [2017] VSC 146, and Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 in making its decision.

The court found that the plaintiff had not established the necessary grounds for ordering security for costs. Consequently, the application for security for costs was dismissed. In addition, the court set aside the notice to produce on the basis that the plaintiff had not had a reasonable opportunity to respond to the notice and that the notice was overly broad. The court referred to Crown Joinery Pty Ltd [2007] VSC 214 and Equuscorp Pty Ltd v Malcolm [2001] VSC 66 in setting aside the notice. The court's decision emphasised the importance of ensuring that the plaintiff has had a reasonable opportunity to respond to a notice to produce and that the notice is not overly broad.

The final orders of the court were that the application for security for costs was dismissed and the notice to produce was set aside. The plaintiff was not required to provide security for costs, and the defendant was not entitled to the documents specified in the notice to produce. The decision underscored the importance of establishing impecuniosity and other factors when seeking security for costs and the need to ensure that notices to produce are not overly broad and provide a reasonable opportunity for the plaintiff to respond.

Orders