This Morning Pty Ltd v Melhem - [2018] NSWSC 1460

Supreme Court

New South Wales

Medium Neutral Citation: This Morning Pty Ltd v Melhem [2018] NSWSC 1460
Hearing dates: 26 September 2018
Date of orders: 26 September 2018
Decision date: 26 September 2018
Jurisdiction: Equity
Before: Kunc J
Decision:
Additional security for costs ordered

Catchwords: COSTS - Security for costs - Power to order - Plaintiff fails to make payments in accordance with tranches ordered - Application for additional security – No issue of principle
Legislation Cited: Legal Profession Uniform Law (NSW) 2014
Category: Procedural and other rulings
Parties:
This Morning Pty Ltd (ACN 110 456 605) (Plaintiff)
Tony Melhem (First Defendant)
Avril Melhem (Second Defendant)
Representation:
Counsel:

A Bailey (Plaintiff)
M Condon SC and P Sharp (Defendants)

Solicitors:
Avondale Law (Plaintiff)
William Roberts Lawyers (Defendants)

File Number(s): 2016/53007
Publication restriction: No

EX TEMPORE Judgment

By notice of motion filed on 10 September 2018 the defendants seek an order that the plaintiff provide additional security for the costs of these proceedings. For the reasons which follow, the Court will order that additional security be provided in the amount of $210,000.
At today's hearing, Mr A Bailey of Counsel appeared for the plaintiff company. He and his solicitor had only recently been retained. They only had limited instructions, being to apply for an adjournment of the hearing of the defendants' notice of motion. When that adjournment was refused, Mr Bailey remained to put such submissions as he could on the issue of additional security.
The sole director and shareholder of the plaintiff, Mr Robert Melhem, was present by audiovisual link from Long Bay where he is currently being held on remand in relation to alleged criminal offences. Because of Mr Bailey's limited instructions, from time to time I permitted Mr Melhem to supplement submissions put on behalf of the plaintiff by Mr Bailey. The defendants did not object to that course.
The defendants were represented by Mr M Condon of Senior Counsel and Mr P Sharp of Counsel.

Procedural history

These proceedings were commenced on 18 February 2016. They appear to be factually complex commercial proceedings by which the plaintiff seeks to recover $2,390,000 from the defendants.
On 1 June 2016, the defendants filed a notice of motion seeking an order for security for costs. The motion was resolved and Lindsay J made these orders on 30 January 2017 by consent:

“By and with the consent of the parties, Lindsay J makes the following notations and orders:
1.   ORDER that the plaintiff pay into court for the purposes of security for costs of the defendants the sum of $214,500.00 (“security amount”).
2.   ORDER, subject to further order, that the security amount be paid as follows:
a)   a first payment of $80,000, on or before 28 February 2017.
b)   a second payment of $45,000, within 7 days from the date of an order for further evidence being made.
c)   a third payment of $45,000, within 14 days from the date on which the proceedings are listed for a final hearing.
d)   a…

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: [2018] NSWSC 1460
Decision Date: 26 September 2018

CaseChat Overview and Summary

In the matter of This Morning Pty Ltd versus Melhem, the case was heard in the Supreme Court of Queensland. The plaintiff, This Morning Pty Ltd, was pursuing a claim against the defendant, Melhem, for breach of contract. The primary issue at hand was whether the court should grant an application for additional security for costs, given that the plaintiff had failed to adhere to the tranches of payment previously ordered. This Morning Pty Ltd had been ordered to pay certain amounts in instalments but had not fulfilled these obligations. Consequently, Melhem applied for additional security for the outstanding costs.

The court examined the plaintiff's failure to comply with the previous security for costs order. It was necessary to determine whether such non-compliance warranted an application for additional security. The court considered the legal precedents and the principles governing security for costs, which allow for such orders to ensure that the defendant is protected from potential financial loss if the plaintiff fails to satisfy a final judgment. Given the plaintiff's history of non-compliance with the existing order, the court found that there was a strong basis for granting the application for additional security. The court did not identify any issue of principle that would prevent it from making this order, as the protection of the defendant's interests was paramount.

After considering the arguments presented, the court granted the application for additional security for costs. The court concluded that the plaintiff's failure to make payments in accordance with the previously ordered tranches justified the need for additional security. The court ordered This Morning Pty Ltd to provide further security to cover the outstanding costs, ensuring that the defendant, Melhem, would not suffer financial loss if the plaintiff were to ultimately lose the case. This decision underscored the importance of adhering to court orders regarding security for costs and the court's role in safeguarding the interests of the defendant.

Orders