Tan v Lim [No 2] - [2025] WASC 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TAN -v- LIM [No 2] [2025] WASC 115
CORAM:   PALMER J
HEARD:   1 APRIL 2025
DELIVERED          :   11 APRIL 2025
FILE NO/S:   CIV 1626 of 2024
BETWEEN:   LEE LEE TAN
Plaintiff

AND

TIONG SOON LIM
First Defendant

CRISTO DEVELOPMENT PTY LTD
Second Defendant

BERESHEET PTY LTD
Third Defendant

EDPKB AUSTRALIA PTY LTD
Fourth Defendant

LAMBDA (A) PTY LTD
Fifth Defendant

CARINE & CARMEN PTY LTD
Sixth Defendant

Catchwords:

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

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr T J Ling
First Defendant	:	Mr C C K Ko
Second Defendant	:	Mr C C K Ko
Third Defendant	:	Mr C C K Ko
Fourth Defendant	:	Mr C C K Ko
Fifth Defendant	:	Mr C C K Ko
Sixth Defendant	:	Mr C C K Ko

Solicitors:

Plaintiff	:	Spyker Legal
First Defendant	:	Trinix Lawyers
Second Defendant	:	Trinix Lawyers
Third Defendant	:	Trinix Lawyers
Fourth Defendant	:	Trinix Lawyers
Fifth Defendant	:	Trinix Lawyers
Sixth Defendant	:	Trinix Lawyers

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

Logue v Hansen Technologies Ltd [2003] FCA 81 (2003); 125 FCR 590
Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35
Perry v Jackson [1998] 4 VR 463
Reynolds v Sharaz [2023] WASC 327

PALMER J:

Introduction

By way of a chamber summons dated 7 October 2024, the defendants seek an order for security for costs pursuant to O 25 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court) and the court's inherent jurisdiction.
The defendants submit that an order should be made for security for costs because there is evidence to suggest that the plaintiff (who is a natural person) is ordinarily resident outside of the jurisdiction, she is impecunious and has no property within the jurisdiction, she is suing for the benefit of another and her claim has weak prospects.

The jurisdiction to order security for costs

Order 25 r 1 of the Rules of the Supreme Court provides that the Court may order security for costs to be given by a plaintiff, but no order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him.
Order 25 r 2(a) and (b) of the Rules of the Supreme Court provides that, without limiting the generality of O 25 r 1, the Court may order security for costs where the plaintiff is ordinarily resident out of the jurisdiction or is about to depart from the jurisdiction.
Order 25 r 3 of the Rules of the Supreme Court provides that in determining whether to exercise the discretion to order security for costs the court shall take into consideration:
(a)the prima facie merits of the claim;
(b)what property within the…

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 Tan v Lim [No 2]

Details

AGLC: Tan v Lim [No 2] [2025] WASC 115
Case: [2025] WASC 115
Decision Date: 11 APRIL 2025

CaseChat Overview and Summary

In the case of Tan v Lim [No 2], the parties involved were Tan, the plaintiff, and Lim, the defendant. The dispute arose from a previous case between the parties, with the current case focusing on an application for security for costs. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the plaintiff should be required to provide security for costs in the event that the defendant were to succeed in the proceedings. The court was required to consider the criteria for granting such an order, as well as the relevant case law and the circumstances of the case. In particular, the court needed to assess whether the plaintiff's prospects of success were sufficiently strong to warrant an order for security for costs.

In reaching its decision, the court considered the evidence and submissions presented by both parties. It noted that the plaintiff's prospects of success were not overwhelming, but also not insignificant. The court found that the application turned on its own facts and that the plaintiff's prospects of success were not so weak as to warrant an order for security for costs. The court also considered the potential impact of such an order on the plaintiff's ability to pursue the proceedings, and concluded that it would not be appropriate to make such an order in the circumstances. As such, the court dismissed the defendant's application for security for costs.

The court's final order was that it was not satisfied that it would be appropriate to order security for costs in these circumstances. No further orders were made.

Orders

Orders of the court

I am not satisfied that it would be appropriate for me to order security for costs in these circumstances.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.