Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 9]
[2016] WASC 68
•4 MARCH 2016
TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [No 9] [2016] WASC 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 68 | |
| Case No: | COR:59/2011 | 18 FEBRUARY 2016 | |
| Coram: | KENNETH MARTIN J | 4/03/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Springing order issued | ||
| B | |||
| PDF Version |
| Parties: | TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST SUPERIOR LAWNS AUSTRALIA PTY LTD KINGSLEY CRAIG FLUGGE MARGARET FLUGGE JEROME MATTHEW FLUGGE LINLEY FLUGGE DAMIEN CRAIG FLUGGE |
Catchwords: | Practice and procedure Action stayed for over two months Security for costs instalment not met Application by defendants for judgment Springing order Discretion of court to enforce orders Case management Temporal opportunity to redress default before dismissal of action |
Legislation: | Nil |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Capital Webworks Pty Ltd v Adultshop.Com Ltd [2008] FCA 423 Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49 Esteem Holdings Pty Ltd as Trustee for the Esteem Trust v Caratti [No 2] [2012] WASC 391 Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271 Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18 Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 3] [2013] WASC 150 Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 4] [2013] WASC 361 Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280 Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34 Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [No 2] [2014] WASC 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SUPERIOR LAWNS AUSTRALIA PTY LTD
First Defendant
KINGSLEY CRAIG FLUGGE
Second Defendant
MARGARET FLUGGE
Third Defendant
JEROME MATTHEW FLUGGE
Fourth Defendant
LINLEY FLUGGE
Fifth Defendant
DAMIEN CRAIG FLUGGE
Sixth Defendant
Catchwords:
Practice and procedure - Action stayed for over two months - Security for costs instalment not met - Application by defendants for judgment - Springing order - Discretion of court to enforce orders - Case management - Temporal opportunity to redress default before dismissal of action
Legislation:
Nil
Result:
Springing order issued
Category: B
Representation:
Counsel:
Plaintiff : Mr S Penglis (Pro Bono)
First Defendant : Mr M L Bennett
Second Defendant : Mr M L Bennett
Third Defendant : Mr M L Bennett
Fourth Defendant : Mr M L Bennett
Fifth Defendant : Mr M L Bennett
Sixth Defendant : Mr M L Bennett
Solicitors:
Plaintiff : Jebb Legal
First Defendant : Bennett + Co
Second Defendant : Bennett + Co
Third Defendant : Bennett + Co
Fourth Defendant : Bennett + Co
Fifth Defendant : Bennett + Co
Sixth Defendant : Bennett + Co
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Capital Webworks Pty Ltd v Adultshop.Com Ltd [2008] FCA 423
Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49
Esteem Holdings Pty Ltd as Trustee for the Esteem Trust v Caratti [No 2] [2012] WASC 391
Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271
Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 3] [2013] WASC 150
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 4] [2013] WASC 361
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [No 2] [2014] WASC 196
- KENNETH MARTIN J:
Introduction
1 As my reasons in Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34, delivered 9 February 2016, explain, this action is currently stayed by reason of the failure of the plaintiff to meet a tranche payment of security for costs which I concluded, under those reasons, fell due on 26 November 2015. As I said at [41] of those reasons:
Consequently, by force of order 10 of my orders, there then being a default in the payment of that second tranche from 27 November 2015, the proceedings are now stayed until the payment of that further security amount of $100,000 by the plaintiff to the defendants.
2 The application of the defendants which I had dealt with in those reasons under the minute of the defendants' amended orders of 16 December 2015 had sought, pursuant to par 9 of that minute, that if the plaintiff failed to pay a second tranche of security in the amount of $100,000, that the proceedings 'be dismissed on the basis that the plaintiff pay the defendants' costs of the proceedings to be taxed if not agreed'.
3 In the end, whilst I concluded that the plaintiff's action was, indeed, stayed under the force of the orders which I had made on 21 November 2014, I did not, as I had been requested by the defendants, then go on to dismiss the plaintiff's action.
4 In the penultimate paragraph of the 9 February 2016 reasons, I said:
I am not yet ruling on the defendants' further application to have the action dismissed by reason of a failure to pay that amount by 15 January 2016. I will hear the parties further about that issue after these reasons are published [42].
5 Upon publication of those reasons on 9 February 2016, the defendants, through their solicitors, immediately submitted a minute of orders seeking inter alia that the proceedings be dismissed.
Events leading to this application for judgment
6 From the perspective of the plaintiff, Trafalgar, my associate had received a communication from Mr Patrick Jebb of Jebb Legal (Mr Jebb also being Trafalgar's sole director) by email on Wednesday, 10 February 2016 at 1.27 pm. The email said (in part):
In addition, I wish to file a further affidavit updating the court as to what has happened since the last hearing and the prospects of the plaintiff complying with the Security for Costs Orders.
In this regard, I note that I am overseas from Thursday 11 February to 29 February 2016. I will endeavour to file such an affidavit on or before 3 March 2016.
7 That communication drew a sharp response from the defendants' solicitors on 11 February 2016. They said (in part):
Mr Jebb deposed in his affidavit of 14 December 2015 that he had neither the funds nor the means to finance the independent legal representation of the plaintiff. No evidence has been filed to the contrary.
The fact that Mr Jebb will be overseas from 11 February 2016 to 29 February 2016 should not be a reason to delay the making of orders for the dismissal of these proceedings in circumstances where the plaintiff has still not paid the second tranche of security. If Mr Jebb was represented by an independent firm of solicitors [prior to the action being stayed there was a dispute between the parties the subject of an exchange of written submissions seeking to disqualify Jebb Legal from acting on the part of the plaintiff on the basis of Mr Jebb's admitted conflict of interest in the litigation, with that application being stood over by reason of the present stay] the fact of his overseas trip from 11 February 2016 until the end of the month would not delay the making of final orders. The defendants should not be prejudiced by a circumstance that is not of their making.
Accordingly, the defendants' request his Honour Justice Kenneth Martin list this matter, as a matter of urgency and preferably at his Honour's next CMC list directions hearing, for the making of orders consequential upon the reasons for decision on 9 February 2016.
8 Given the rival stances of the parties, I listed the matter in the CMC list, at 9.15 am on Thursday, 18 February 2016 - although I indicated I was prepared to consider a different time if that suited the availability of the defendants' pro bono counsel, Mr Penglis. In the end, Mr Penglis was able to attend to act as pro bono counsel on the part of the plaintiff, as he has done on a number of occasions previously and for which the court is indebted to him for his assistance.
9 For the purpose of that hearing, the defendants filed written submissions in support of the application for judgment on Tuesday, 16 February 2016. The plaintiff, Trafalgar, through pro bono counsel, referred my associate to four decisions, including two of my previous decisions in this litigation, being Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 3] [2013] WASC 150 [14] - [23] and Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 4][2013] WASC 361 [15] - [20] and [23] - [25]. In addition, I was referred to decisions of the Full Court in this State in Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49 [23] and [28] and Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [No 2] [2014] WASC 196 [2] and [39] - [40].
10 In short then, the defendants now press strongly for a dismissal of the whole action, by reason of the continuing default of the plaintiff to meet the tranche of security in the amount of $100,000 which, as my reasons in Trafalgar v Superior Lawns [No 8] concluded, fell due on 26 November 2015, and with the consequence of the action being stayed until the payment of that amount, from 27 November 2015.
11 In short, the defendants say 'enough is enough' and that they have endured these proceedings at great financial and emotional cost now since 24 March 2011 (referring generally to schedule A, the chronology found at the end of my reasons in Trafalgar v Superior Lawns [No 8] as to the progression of events since 2011).
12 Alternatively, the defendants submit that if I am not minded at this time to order an immediate dismissal, then, at minimum, there should at least be a springing order issued - dismissing the action after a relatively brief interval of further time, given the overall history and unsatisfactory progression of the action (as encapsulated within schedule A to those previous reasons).
13 It is necessary to elaborate on the parties' respective submissions and positions, as I do below.
Defendants' submissions seeking dismissal or short interval springing order for dismissal
14 Beyond their further written submissions of 16 February 2016, the defendants did not seek to put any evidentiary material before the court. Essentially, they relied upon evidence adduced under previous interlocutory applications. They relied upon the decision in Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18 [24] (Einstein J), upheld on appeal in Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271, concerning the court's exercise of a discretion to dismiss a proceeding in the face of a failure to comply with security for costs orders. The defendants referred to principles identified by Einstein J at first instance, weighing factors, including:
(a) the period that has elapsed since security was ordered;
(b) the fact that the plaintiff has been on notice of an application for dismissal (as Trafalgar has here since the interlocutory application of the defendants determined under my reasons in Trafalgar v Superior Lawns [No 8]):
(c) the seeming inability of the plaintiff to further fund the proceedings;
(d) the prejudice to the defendants; and
(e) the position of the court.
15 By reference to such underlying considerations bearing upon discretion, the defendants, albeit not pointing to any specific forensic prejudice arising out of the proceedings now being stayed once again from 27 November 2015 to now, point to the asserted unsatisfactory history of progress in this litigation, by reason of the failure to provide a first tranche of security for costs in the period between 17 June 2013 and 12 September 2013 - and which was only paid after the court issued a springing order in respect of the payment of that first tranche amount of $32,648, on 17 July 2013. At that time, I had, in effect, allowed an interval of two months for the security to be provided before dismissal, once the action had been stayed since 17 June 2013, by reason of the failure to meet that payment in 2013. In the end, that security payment was met - but only five days prior to that 2013 springing order taking effect: see generally schedule A to the Trafalgar v Superior Lawns [No 8] reasons.
16 The defendants further submit that the plaintiff has been on notice of the dismissal application - albeit the substantive arguments evaluated under my reasons in Trafalgar v Superior Lawns [No 8] needed to resolve the opposing position of the plaintiff, which I in the end rejected. This was to the effect that there had then been no relevant 'close' of the discovery and inspection. Publication of my reasons in Trafalgar v Superior Lawns [No 8] on 9 February 2016 rejecting that 'no close' argument by Trafalgar removed any perceived lack of clarity over the position concerning the required payment of $100,000, due as at 26 November 2015 and in default the next day - thereby staying the action.
17 As regards prejudice, the defendants, beyond referring to the observations of Einstein J in Idoport concerning effluxion of time, impact upon witnesses' availability and memories, and exposure of the defendants to legal costs in a complex claim, also pointed me to the observations of the Court of Appeal in Idoport, particularly at [58] concerning the unacceptability of litigation being allowed to remain hanging over the heads of defendants, albeit stayed indefinitely.
18 The defendants' written submissions concluded:
The plaintiff's financial position has plagued its ability to prosecute these proceedings since October 2011. Over four years on, the plaintiff's financial position continues to prejudice the defendants. The plaintiff has had the benefit of indulgence after indulgence: from Mr Jebb being permitted to act as 'MacKenzie friend' to the three-month hiatus to procure the First Tranche of security to the current two-month delay in which to procure the Second Tranche.
19 Counsel for the defendants, Mr Bennett, emphasised those considerations in his oral submissions of Thursday, 16 February 2016. He did not object to the court receiving seven matters (or extra facts), gathered on the plaintiff's behalf and submitted through Mr Penglis as pro bono counsel for Trafalgar - effectively, as factual materials relied upon in lieu of any further affidavit from Mr Jebb, with it being remembered Mr Jebb said, by his email of Wednesday, 10 February 2016 (prior to Mr Jebb's departure overseas from Thursday, 11 February 2106) that he wished to put further material before the court.
20 I will mention those seven matters below by reference to the plaintiff's submissions opposing any dismissal orders. But, essentially, Mr Bennett contended orally that these extra matters as raised were of no moment at all against the force of the defendants' application for dismissal and judgment.
21 As a lesser preferred outcome, Mr Bennett would tolerate for the defendants (just) a springing order dismissing the proceedings after a brief further interval of opportunity. That was a course taken by McKerracher J in Capital Webworks Pty Ltd v Adultshop.Com Ltd [2008] FCA 423: see [20] - [22]. In the end, his Honour there issued a springing order dismissing the proceedings, but allowing a period of three months for those orders to hover: see [23]. He allowed that period on a basis that a trial was no longer imminent in that case. As I assess those reasons, however, there had been in that litigation no previous springing order(s) by reason of failures to meet a security for costs order, although there had been stays based upon failure to meet tranches of security: see [5]. His Honour was, of course, in that case, considering the provisions of different legislation and rules. In particular, he was concerned with the provisions of s 56(4) of the Federal Court of Australia Act 1976 (Cth). The underlying regime is accordingly distinct, although it seems to me, with respect, that the considerations underlying an exercise of discretion under s 56(4) are very similar to here.
22 I turn to the materials raised by the plaintiff in seeking to resist a dismissal order of the present action or, furthermore, any springing order carrying a consequence of dismissal of the action.
Pro bono counsel's submissions on the part of the plaintiff Trafalgar: resisting dismissal
23 I have already mentioned the four cases to which I was referred by pro bono counsel for Trafalgar, which included two of my prior interlocutory decisions within this litigation. They are unnecessary to revisit.
24 The decision of Edelman J in Westonia contained at [2] a reference to the other decision relied upon by probono counsel beyond my own decisions. This was the decision of Templeman and Wheeler JJ, sitting together as the Full Court in Dallas. In Westonia, Edelman J had observed that springing orders in the Dallas appeal had been upheld by the Full Court, in circumstances where there had been a six-month failure to post security for costs without explanation. Edelman J also observed that that Full Court decision in Dallas was delivered in an environment (ie, 2000) prior to intensive case management. (See also Esteem Holdings Pty Ltd as Trustee for the Esteem Trust v Caratti [No 2] [2012] WASC 391 [13] (Master Sanderson).) It was also, as I would observe, prior to the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
25 In his Westonia reasons Edelman J identifies the inherent power of the court, as well as its general case management powers under O 4A r 5(1)(e) under the Rules of the Supreme Court 1971 (WA), to issue springing orders in circumstances the court 'considers just'. One of those circumstances his Honour there identified included 'violation of orders of the Court as well as a failure to pursue the action with due diligence' - see [2]. Mr Penglis referred me to [39] and [40] of his Honour's reasons. But beyond that I would also note these observations of Edelman J at [37]:
The conduct of these proceedings has been unacceptable. This matter is not overly complex. But almost 2 years have now elapsed and the matter is not close to trial. Westonia has been warned again, and again, and again, about the delay in these proceedings … This must change. And affidavits should no longer be provided one or two days before directions hearings.
26 As then seen, under [38], his Honour allowed, in that case, a period of six weeks for an amount of $50,000, then in default, to be paid into court as security. He noted at [39] the distinction between such an order striking out a plaintiff's statement of claim, dismissing its action, in some contradistinction to the scenario of a dismissal for want of prosecution. He further observed at [39]:
Nor does it deny Westonia its day in court. It merely requires Westonia to do that which Westonia should have done for almost the last two years. That is, Westonia must prosecute this matter efficiently.
27 I observe in juxtaposition for the present proceedings, for reasons which might be ascertained by reference to my reasons in Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280, the instant litigation looks to be substantially more commercially complex than the circumstances considered by his Honour in the Westonia scenario. Moreover, the present proceedings have been on foot now for a period approaching almost five years (ie, at 24 March 2016).
28 Mr Penglis, as mentioned, referred me to his Honour's observations at [40] concerning circumstances in which an application to vary the springing orders issued by his Honour would be contemplated.
29 The seven facts relied upon by pro bono counsel, and not objected to (as to their receipt in this fashion) by Mr Bennett on the part of the defendants, were handed to the court by Mr Penglis. The first two are these:
1. The person at LCM Litigation Management Pty Ltd who supported the funding of the plaintiff's action was its then managing director, Patrick Coope.
2. Mr Coope's employment as Managing Director was terminated on 31 March 2015: see LCM Litigation Fund Pty Ltd v Coope; Cooper v LCM Litigation Fund [No 2] [2015] NSWSC 992
30 (I would observe that the New South Wales LCM decision records the litigious circumstances in which Mr Patrick Coope, as one of two joint managing directors of LCM Litigation Fund Pty Ltd, ceased his employment relationship with that entity on 31 March 2015. The litigious circumstances included Mr Coope's ability to contact LCM employees, use LCM confidential information, and to compete with LCM: see generally reasons of Stevenson J at [1], [2] and [7]).
31 Further facts were these:
3. Mr Coope's successor chose not to support the continued funding of the plaintiff's action, which resulted in LCM terminating funding (as previously discussed).
4. Mr Coope gave an undertaking not to contact any former 'clients' for one year from the date of the termination of his employment as Managing Director. That undertaking expires on 31 March 2016.
5. Mr Jebb intends to speak to Mr Coope on 1 April (2016) or so soon thereafter as he is able to do so, with a view to Vannin Capital
- [presumably a reference to Vannin Capital Ltd, which is a subsidiary of Vannin Capital PCC Ltd - as referred to at [13] of the reasons of Stevenson J]
(the litigation funder referred to in the above referenced reasons for decision and the Australian Arm of which Mr Coope is now the Managing Director) funding the plaintiff's action going forward, including the provision of the security for costs which Kenneth Martin J has held to be due and payable.
- 6. Mr Jebb is also speaking to other litigation funders in this regard.
7. In addition to the above, the plaintiff has taken steps to compel LCM to pay the security which has been held to be due and payable: see attached originating summons and notice of appearance in CIV 1102 of 2016.
33 At [33] of my reasons in Trafalgar v Superior Lawns [No 8], I referred to the affidavit of Mr Jebb sworn 14 December 2015 setting out pars 3 - 6 of his affidavit. Relevantly, Mr Jebb disclosed at that time by par 3 that LMC had terminated its funding agreement with the plaintiff. After that, on 24 November 2015, Trafalgar's former solicitors, Corrs Chambers Westgarth, had then terminated its retainer with Trafalgar. Mr Jebb had then said in that affidavit:
The plaintiff remains unable to finance independent legal representation other than through the support of third party loans or litigation funding.
34 The October 2015 termination of the litigation funding for Trafalgar from LCM occurred some six months after Mr Coope's employment was terminated as one of the two managing directors of LCM on 31 March 2015. But there is almost no information provided to me concerning whether there is any connection between these two events - other than that it is bluntly said as fact 3 above that Mr Coope's successor chose not to 'support' the continued funding of the plaintiff's action, with the consequent termination of funding. I note, in passing, that the reasons for decision in Trafalgar v Superior Lawns [No 7] were published on 5 August 2015.
35 By reference to the facts stated under fact 7 on behalf of Trafalgar, I note that Trafalgar's originating summons in its proceeding CIV 1102 of 2016 appears to have been issued out of this court by the law practice Jebb Legal, on behalf of Trafalgar on 21 January 2016. At that time, of course, I was then deliberating the arguments which I heard on 18 December 2015 giving rise to Trafalgar v Superior Lawns [No 8]. A significant component of the arguments then under consideration were to the effect that the second tranche of the security for costs instalment in the amount of $100,000 was not yet due, as the processes of discovery and inspection had not come to a close. That argument of Trafalgar was ultimately rejected in my reasons of 9 February 2016.
36 In the hiatus period between the arguments on 18 December 2015 up to the delivery of my reserved reasons on 9 February 2016, Trafalgar had on 21 January 2016 issued that originating summons against LCM as defendant seeking:
1. A declaration that on the proper construction of the litigation funding agreement between the defendant and the plaintiff dated 14 November 2013 the defendant remains liable to satisfy the order of this honourable court made 21 November 2014 in COR 59 of 2011 requiring:
(a) within seven days of the close of discovery and inspection, a second tranche of security in the amount of $100,000 to be paid, up to entry for trial, by way of payment into court to be deposited into an interest bearing account with the Public Trustee [Order 8]; and
(b) the balance of the security ($190,000) be paid within 14 days after entry for trial by way of payment into court to be deposited into an interest bearing account with the Public Trustee [Order 9].
…
37 Trafalgar's proceedings in CIV 1102 of 2016 against LCM are not being case managed by me, for obvious reasons. In terms of their advancement to a resolution, the materials handed to me by pro bono counsel for Trafalgar indicated only that a memorandum of appearance had been entered on behalf of LCM on 16 February 2016.
38 Reading between the lines, since I am not provided with the relevant LCM litigation funding agreement, Trafalgar now appears to be contending that LCM carries an abiding contractual obligation to provide litigation funding to Trafalgar in respect of the $100,000 amount now determined to have been due since 26 November 2015 and in respect of which its non-payment has caused the present proceedings to be stayed. Trafalgar also appears to contend that LCM is due to advance a further $190,000 - all up, a further $290,000 by way of security. I am not in any position to evaluate constructional issues associated with Trafalgar's prospects of obtaining those amounts from LCM in the shorter or longer term. It was foreshadowed by pro bono counsel that an application would be brought to have that action against LCM case managed in the CMC list. But I know nothing more beyond that.
39 As regards Mr Jebb's prospects of obtaining for Trafalgar some further litigation funding via his connection with Mr Coope in his new role as the managing director of the litigation funder Vannin Capital once Mr Coope is freed of current non-contact constraints with former clients, where that event might end up presents to me now as wholly speculative. Likewise, the foreshadowed contact with other litigation funders by Mr Jebb as referred to at fact 6 above tells me almost nothing to suggest much optimism from that quarter as to litigation funding from another unnamed source.
40 In short then, arguments marshalled together for Trafalgar in resistance to the defendant's dismissal or springing order application devolve essentially to these:
(a) the defendants have not really pointed to any specific prejudice arising out of the most recent stay of the litigation;
(b) Trafalgar proposes to pursue an action against LCM, its former litigation funder, contending that LCM is obliged to advance a further amount of $290,000 ($100,000 plus $190,000) based upon the terms of the litigation funding agreement entered between those parties in their agreement of 14 November 2013, and now said by Trafalgar, in effect, to have been breached in its performance by LCM in October 2015 - albeit Trafalgar took no step to compel performance of that agreement until 21 January 2016 - even by seeking a declaration as to LCM's obligations under that agreement;
(c) that Mr Patrick Coope, as a former managing partner of LCM, has now joined another litigation funder operating in Australia, Vannin Capital, and Mr Jebb intends to speak to Mr Coope, who had previously supported the funding of Trafalgar whilst managing director of LCM, once Mr Coope becomes available at or shortly after 1 April 2016 and, further, that Mr Jebb is also 'speaking to other litigation funders'; and
(d) as foreshadowed in argument by pro bono counsel, the loss by Trafalgar of LCM as its litigation funder (if it is in breach or even if it is not) provides altered circumstances pursuant to which counsel may be instructed on behalf of Trafalgar to apply to vary the consenting security orders issued by the court and providing for the increased overall amount of $350,000 in security, which I explained in the Trafalgar v Superior Lawns [No 8] reasons at [11]. See also schedule A for a collection of the events leading up to essentially consensual orders issued as between the parties on 21 November 2014, when the total amount of security for costs was raised to the amount of $350,000 (an increase beyond the amount of $150,000 I had ordered back on 10 June 2013).
Determination
41 It is regrettable that Trafalgar appears to have lost LCM as its litigation funder in October 2015. Without external support, it is very clear - indeed, admitted, as I would assess Mr Jebb's affidavit of 14 December 2015 at par 5 - that this complex commercial action now sought to be pursued by Trafalgar (as to their complexity, see my reasons in Trafalgar v Superior Lawns [No 7]) cannot viably advance to a trial. Perhaps by inference Mr Jebb would seek to attribute that loss of litigation funding for Trafalgar to the departure of Mr Coope from LCM, at the end of March 2015. But there is nothing really to support that connected assertion.
42 Whilst I am acutely conscious of access to justice considerations, supporting the ability of parties to advance meritorious actions to a trial, a counterpoint to that policy consideration is that the commercial marketplace is usually a reliable source of insight towards the potential worth of a marketed cause of action. By my assessment, there is at this time virtually nothing that is tangibly optimistic on the horizon to indicate that Trafalgar is, or is likely to be, in a position to resume any viable pursuit of these proceedings in the near future.
43 Furthermore, it seems to me - notwithstanding that this litigation was commenced almost five years ago now - that this action is still a considerable distance away, and an expensive distance away at that, from being ready for a trial. The implications of the amendments introduced by Trafalgar, particularly advancing claims in respect of the Sydney Road property, were dealt with in my Trafalgar v Superior Lawns [No 7] reasons. They appear, at least, to have increased what is a substantial perceived monetary gap between the parties' respective positions (that is, between zero on the defendants' case and a substantial claim on the plaintiff's case, probably under a share buy-out order claim by Trafalgar of multi-million dollar proportions - it being difficult to precisely quantify in the absence of expert evidence of an accounting nature).
44 Like McKerracher J in the Capital Webworks Pty Ltd decision to which I earlier referred (see [19] - [20]), I assess that presently there are compelling reasons advanced by the defendants to enforce compliance with the security order for the tranche of $100,000 security that fell due 26 November 2015, now over three months ago. As indicated, the proceedings are now stayed and, in my assessment, there is little financial light on the horizon for Trafalgar. The considerable magnitude of interlocutory applications and the scope of the parties' discovery and inspection (now completed) also suggest to me that, whilst no trial dates have been set, this action, whilst still a distance away (perhaps 12 months) from being ready for a longish trial, has some considerably further road distance to travel, before that state of readiness is achieved. In particular, the scope for expert evidence looks to me to be extensive, particularly in a valuation of shares perspective in the first respondent corporation, Superior Lawns Pty Ltd, with that exercise to be computed on a number of alternative possible underlying assumptions, rendering it complex and expensive.
45 In short then, after five years the present position is wholly unsatisfactory. So, like McKerracher J, I am of the view that the litigation must 'come to a head'. But I do also need to carefully balance the interests of the plaintiff, which now reflect almost five years of development, albeit progress can be described as stuttering.
46 I am of the view that it is not yet appropriate to order an immediate dismissal of the present proceedings. However, the perpetuation of the current underlying stay is unsatisfactory for too much longer. The current gridlock demands, on my assessment, an issue of a springing order to redress the ongoing failure to meet the outstanding amount of $100,000 security. Whilst I do not, of course, pre-judge a potentially foreshadowed application by Trafalgar to vary the current security orders mentioned by pro bono counsel, I observe, as is obvious, that there is no such pending application and that, if made, it would no doubt be fiercely resisted.
47 The action will have been stayed for four months at 27 March 2016. That is in circumstances where previous stays have delayed progress to a most unsatisfactory effect, especially during 2013.
48 One of the earlier stays and associated delay was attributable to the failure of Trafalgar to meet an instalment amount of security of $32,648. It was only paid a week prior to the expiry of a two-month period prior to the engagement of that 2013 springing order and dismissal of the action then.
49 To the extent it would be said for Trafalgar that there may have been until 9 February 2016, some issue of uncertainty concerning whether or not its obligation to meet the $100,000 second tranche payment was actually engaged or not, that weakish argument was expressly rejected with the position resolved by my reasons of 9 February 2016 under Trafalgar v Superior Lawns [No 8], after the court's summer recess. Hence, to the extent that it might be argued there was any early doubt over that issue, there has been no doubt, since 9 February 2016.
50 In all the circumstances then, I am prepared only to allow Trafalgar, taking account of the sterilisation against any contact obstacle, said to bear upon any dealing with Mr Coope (expiring 31 March 2016) until noon on Friday, 8 April 2016 to address its current default in respect of the amount of $100,000.
51 That period will allow Mr Jebb some time to liaise with Mr Coope in respect of the procurement of litigation funding from Vannin Capital potentially with Mr Coope as the viable managing director of that entity, from 1 April 2016. There will also have elapsed a more than fair period for Mr Jebb to pursue any other litigation funders and opportunities under fact 6 after his period spent overseas in February 2016.
52 Consequently, therefore, I propose to order, in terms similar to the orders issued by Edelman J in the Westonia decision at [38], that unless the amount of $100,000 is paid in accordance with the terms of my previous orders by noon on Friday, 8 April 2016 (being by then a period of over four months since the obligation to provide that tranche of security arose and of almost two months since I delivered the reasons in Trafalgar v Superior Lawns [No 8] on 9 February 2016) that this action must be brought to an end. The period until 8 April 2016 allows a fair opportunity for Mr Jebb to deal with Mr Coope urgently during early April 2016, as regards any potentiality of Trafalgar receiving some litigation funding through Vannin Capital. Mr Coope obviously knows this action well enough from his time at LCM and should be in a position to give a swift indication as to the attitude of his new employer to supporting Trafalgar. There is no inhibition, of course, against Mr Coope reading these reasons immediately they are openly published over the internet web site of the Court.
53 So then I will order that unless the amount of $100,000 (which is currently in default and has caused the action to be stayed by reason of its non-payment) is paid or secured by bank guarantee by Trafalgar by noon, on Friday, 8 April 2016, then the following events will follow automatically, unless interrupted by contrary order of the court:
1. Trafalgar's re-amended substituted statement of claim of 11 March 2015 will be struck out;
2. Trafalgar's action against all defendants will be dismissed; and
3. Trafalgar must pay the defendants' taxed costs of its action, including all reserved costs, and with scope for the defendants to apply for special costs orders and the lifting of any applicable limits preserved.
54 These orders shall issue upon the publication of these reasons. They will also be emailed to the legal representatives of record for the parties.
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