Trafford Nominees Pty Ltd v Everstone Group Pty Ltd - [2025] WASC 282

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TRAFFORD NOMINEES PTY LTD -v- EVERSTONE GROUP PTY LTD [2025] WASC 282
CORAM:   MASTER RUSSELL
HEARD:   5 SEPTEMBER 2024
DELIVERED          :   15 JULY 2025
FILE NO/S:   COR 178 of 2022
BETWEEN:   TRAFFORD NOMINEES PTY LTD (ACN 008 954 943)
Plaintiff
AND
EVERSTONE GROUP PTY LTD (ACN 153 955 723)
First Defendant
AMANDA CHICK
Second Defendant
GAVIN JAMES BRANDIS
Third Defendant
BV2 PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Costs - Security for costs - Rules of the Supreme Court 1971 (WA) O 25 - Corporations Act 2001 (Cth) s 1335 - Security for costs awarded - Turns on own facts

Practice and procedure - Proceedings commenced by originating process pursuant to Supreme Court (Corporations) (WA) Rules 2004 - Whether action should proceed on pleadings - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 1335(1)
Rules of the Supreme Court 1971 (WA) O 1 r 4B, O 25 r 1, O 25 r 3, O 25 r 5, O 25 r 6
Supreme Court (Corporations) (WA) Rules 2004 r 2.2(1)(a)

Result:

Application for security for costs granted
Application for action to proceed on pleadings refused

Category: B

Representation:

Counsel:

Plaintiff	:	Mr C S Williams
First Defendant	:	Mr D Robinson
Second Defendant	:	Mr D Robinson
Third Defendant	:	Mr D Robinson
Fourth Defendant	:	Mr D Robinson

Solicitors:

Plaintiff	:	Solomon Brothers
First Defendant	:	Williams + Hughes
Second Defendant	:	Williams + Hughes
Third Defendant	:	Williams + Hughes
Fourth Defendant	:	Williams + Hughes

Cases referred to in decision(s):

Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [2016] WASC 353
Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [2009] WASC 299
BBC Nominees (WA) Pty Ltd v Yangebup Developments Pty Ltd [2008] WASC 81
Beach Petroleum NL v Johnson (1992) 7 ACSR 203
Boniel v Camilleri [1999] NSWSC 174
Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171
Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301
Carey-Hazell v Getz Brothers & Co (Aust) Pty Ltd [2004] FCA 1334
Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2016] WASC 404
Crosswest Corporation Pty Ltd v Allstrike Enterprises Pty Ltd [2014] WASC 27
Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664
Global Finance Group Pty Ltd (In Liq) v Marsden Partners (A Firm) [2004] WASC 52
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744
Laundry Coin Wash Nominees Pty Ltd v Dunlop Olympic Ltd [1985] ATPR 40‑584
LCM Recoveries Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2023] WASC 181
Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132
Mila Properties Pty Ltd v Caldwell [2009] WASC 282
Milosevska v Milosevski [2019] NSWSC 711
Nicolaou v Air Liquide W.A. Pty Ltd [2024] WASC 309
Ollerenshaw v Uniting Church in Australia Property Trust (NSW) [2017] NSWSC 1637
Patrick Jebb as trustee for The Trafalgar West Trust v Superior Lawns Australia Pty Ltd [2019] WASC 12
Phoenix Eagle Co Pty Ltd v Tom McArthur Pty Ltd [2019] WASC 378
Re Renex Founder Hold Co Pty Ltd [2024] VSC 244
Russell v Lee Holdings Pty Ltd [No 3] [2020] WASC 346
Soia v Bennett [2012] WASCA 231
Southern Cross Exploration NL v Fire & All Riks Insurance Co Ltd (1985) 1 NSWLR 114
Sugarloaf Hill Nominees Pty Ltd as Trustee for The Richard And Anna Trust v Rewards Projects Ltd [2011] WASC 19
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129
Trafalgar West Investment Pty Ltd v Superior Lawns Australia Pty Ltd [2014] WASC 278
Western Areas Exploration Pty Ltd v Streeter [2008] WASCA 218
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

MASTER RUSSELL:

Introduction

By interlocutory process filed on 19 April 2024, the defendants, Everstone Group Pty Ltd (Everstone Group), Amanda Chick, Gavin James Brandis and BV2 Pty Ltd (BV2), apply for security for costs against the plaintiff, Trafford Nominees Pty Ltd (Trafford Nominees). The defendants also seek an order that the action proceed on pleadings.
Trafford Nominees' substantive application by originating process filed on 4 October 2022 concerns alleged oppressive conduct and seeks orders pursuant to s 232 and s 233 of the Corporations Act 2001 (Cth) on the facts stated in the affidavit of Paul Berresford sworn on 3 October 2022 in support of the application. Trafford Nominees seeks orders pursuant to s 233(1)(d) of the Corporations Act that the second and fourth defendants, Ms Chick and BV2, purchase Trafford Nominees' shareholding in Everstone Group for a price to be determined.
The plaintiff opposes the defendants' application for security for costs and for orders that the action proceed on pleadings.
For the reasons that follow:
(a)I am satisfied that, at this time, it is appropriate to make an order for security for costs in favour of the defendants limited to the stage of the proceedings and in the amount outlined later in these reasons; and
(b)I consider that rather than the action proceed on pleadings, the more efficient course, to identify the factual matters in dispute and the issues for determination, is for the parties to each file statements of facts and contentions and identify the documents upon which they rely.

Materials relied upon by the parties

In support of their application, the defendants rely on an affidavit of Gavin James Brandis sworn on 19 April 2024 (Brandis Affidavit) and an outline of submissions filed on 28 June 2024.
Trafford Nominees relies upon the following in opposition to the defendants' application:
(a)an affidavit of Paul Berresford sworn on 7 June 2024 (Berresford Affidavit) together with undertakings given by Mr Berresford and Trafford Nominees on 7 June 2024;
(b)an affidavit of Daniel Tassone sworn on 29 August 2024 (Tassone Affidavit); and
(c)an outline of submissions filed on 26 July 2024.

Application for security for costs

Applicable legal principles

The defendants' application for security for costs is brought pursuant to s 1335(1) of the Corporations Act and O 25 of the Rules of the Supreme Court 1971 (WA) (RSC).
The principles that apply to an application for security for costs are not in dispute. I summarised the relevant principles in Nicolaou v Air Liquide WA Pty Ltd[1] as follows.
[1] Nicolaou v Air Liquide WA Pty Ltd [2024] WASC 309 (Nicolaou) [25] - [33].
[26]In relation to an application under O 25 r 1 and r 3 RSC, I refer to and gratefully adopt Vaughan J's[2] summary in Patrick Jebb as trustee for The Trafalgar West Trust v Superior Lawns Australia Pty Ltd:[3]
[2] As his Honour then was.
[3] Jebb v Superior Lawns Australia Pty Ltd [2019] WASC 121 (Jebb) [214] ‑ [215].
214The court has a discretion to make an order for security for costs under O 25 r 1 and r 3 of the Rules of the Supreme Court1971 (WA). That discretion is broad and its exercise depends on all the circumstances of the case.[4] There are, however, some matters to be borne in mind:
[4] Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132 [57]; Crosswest Corporation Pty Ltd v Allstrike Enterprises Pty Ltd [2014] WASC 27 (Crosswest) [12].
(1)An order for security for costs must not be made merely on account of the likely inability of the plaintiff to pay costs awarded against him or her.[5]
[5] Rules of the Supreme Court 1971 (WA) O 25 r 3 (RSC).
(2)It is necessary to take into consideration the prima facie merits of the claim, what property within the State may be available to satisfy a costs order and whether the court's normal enforcement processes would be available in respect of a costs order.[6]
[6] O 25 r 3 RSC.
(3)Order 25 r 1 and r 3 are to be applied so as to best ensure the attainment of the objects referred to in O 1 r 4B of the Rules of the Supreme Court1971 (WA) - this includes the objects of promoting the just determination of litigation and ensuing that the costs of procedures are proportionate to the parties' financial positions.[7]
[7] O 1 r 4B RSC.
215Accordingly, under O 25 the likely inability of the plaintiff to pay costs is not, standing alone, sufficient to justify ordering security for costs. However, this does not make the plaintiff's inability to pay costs if awarded irrelevant to the exercise of the discretion. To the contrary such a likelihood is one of the many factors that is relevant to the exercise of the discretion.[8]
[8] Crosswest [13].
[27]Section 1335(1) of the Corporations Act provides:
(1)Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.
[28]There is no entitlement to security, nor any predisposition towards an order for security for costs.[9]
[9] Phoenix Eagle Co Pty Ltd v Tom McArthur Pty Ltd [2019] WASC 378 (Phoenix Eagle) [17] (Allanson J), citing Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497.
[29]Section 1335 carries both a threshold test and a discretionary test. The threshold test is whether it appears, by credible testimony, that there is reason to believe the plaintiff will be unable to pay the defendant's costs, if ordered to do so. It is a jurisdictional precondition to the exercise of the court's discretion.[10] In Western Areas Exploration Pty Ltd v Streeter,[11] in the context of an application for security for costs under s 1335 in an appeal, Pullin JA stated:
[10] Western Areas Exploration Pty Ltd v Streeter [2008] WASCA 218 (Western Areas) [2] (Pullin JA), referring to BBC Nominees (WA) Pty Ltd v Yangebup Developments Pty Ltd [2008] WASC 81 (BBC Nominees) [11].
[11] Western Areas [3] - [6].
3The threshold requirement is met if credible testimony establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the appellant corporation will be unable to pay the respondent's costs of the appeal if the appeal is unsuccessful.
4This will be so even if in other events which can also be fairly described as reasonably possible the appellant would be able to pay the costs: Beach Petroleum NL v Johnson (1992) 7 ACSR 203, 205. It has been recognised that the threshold test is a fairly modest test: see Meni's Tailoring & Alterations Pty Ltd v Jeanswest Corporation Pty Ltd (2003) FCA 1108 [4].
5In ascertaining whether there is credible testimony, the court does no more than judge the quality of the evidence to see if it objectively gives rise to a reason to believe: see FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241 [22].
6If the jurisdictional requirement is met, then the court's discretion is enlivened and there are a number of discretionary factors which have to be considered, but the first question here is whether the jurisdictional requirement has been met.
[30]Once satisfied the threshold has been met and its jurisdiction is enlivened under s 1335(1), the court has a broad, unfettered discretion, which is to be exercised judicially, having regard to the circumstances of the case at hand, and by reference to established principles. Various factors may be relevant to the exercise of the discretion to order security for costs, including but not limited to those collected by Edelman J in Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd,[12] which have been regularly applied by this court. Those non‑exhaustive factors include:
[12] Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57 (Westonia) [6] (Edelman J), citing BBC Nominees [20]; Carey-Hazell v Getz Brothers & Co (Aust) Pty Ltd [2004] FCA 1334 [28] (French J); Sugarloaf Hill Nominees Pty Ltd as Trustee for The Richard And Anna Trust v Rewards Projects Ltd [2011] WASC 19 (Sugarloaf Hill) [36] (Corboy J); Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (Swansdale) [71] ‑ [74] (Kenneth Martin J); Soia v Bennett [2012] WASCA 231 [16] (Newnes JA).
(a)the strength and bona fides of the plaintiff's case;
(b)the likelihood of the plaintiff being unable to pay the defendant's costs;
(c)whether the plaintiff's impecuniosity was caused by the defendant's conduct which is the subject of the claim;
(d)whether the application for security is oppressive;
(e)whether the award of security would deny an impecunious applicant a right to litigate;
(f)whether there are persons standing behind the plaintiff who were likely to benefit from the litigation;
(g)whether the persons standing behind the plaintiff have offered any security or personal undertaking to be liable for the costs;
(h)whether the applicant was in substance a plaintiff or the proceedings were defensive in the sense of directly resisting proceedings already brought;
(i)whether the application for security had been brought promptly;
(j)whether the applicant has any rights which it can exercise against assets of the plaintiff to satisfy an order for costs in its favour; and
(k)any factors relating to the public interest.
[31]There is 'a balance to be struck between protecting the defendant from the possible consequences of being sued by an impecunious corporation with limited liability and avoiding injustice to the corporation by unnecessarily prejudicing it in the conduct of litigation'.[13]
[32]The factors relevant to the exercise of discretion under s 1335(1) are also relevant to the exercise of discretion under O 25 r 1 and r 3 RSC,[14] and apply in a similar way to a natural person as to a corporation.
[33]An order for security for costs is not intended to be a complete indemnity for the actual costs likely to be incurred by a defendant.[15] If the court is satisfied that an order for security for costs should be made, the security ordered should be an amount which the court considers just in all the circumstances, having regard to a reasonable estimate of the likely taxable costs.[16] It is not necessary to engage in a precise arithmetical exercise. The task is essentially one of discretionary judgment, reasonable estimation, and projection.[17]
[13] Sugarloaf Hill [31].
[14] Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2016] WASC 404 (Construction Industries) [29] (Pritchard J).
[15] Jebb [219], citing Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171, 175.
[16] Jebb [219], citing Construction Industries [45].
[17] Construction Industries [45]; Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [2016] WASC 353 [82] (Kenneth Martin J).
The principles are, as I have observed, well established. It is the application of the principles that are in issue. The parties have each referred to other authorities in their respective submissions, to which I have had regard. To the extent that those authorities are relevant to the determination of the application, I refer to them later in these reasons.

The plaintiff's financial position

The evidence concerning Trafford Nominees' financial position may be summarised as follows.
Trafford Nominees is a corporation with a paid-up share capital of $2. Its directors and shareholders are Paul Berresford and Silvia Doreen Berresford, who each hold one fully paid ordinary share. Mr Berresford is also the company secretary.[18]
[18] Brandis Affidavit [4.1], 'GJB-1'.
A Landgate search undertaken on behalf of the defendants, a copy of which is attached to the Brandis Affidavit,[19] reveals that Trafford Nominees is not the registered proprietor of any real property.
[19] Brandis Affidavit [4.2], 'GJB-2'.
Trafford Nominees does not trade. It is a trustee company. It is the trustee of the Berresford Trust of which Mr Berresford is the principal and he and Mrs Berresford are the beneficiaries. The Berresford Trust was established on 1 November 1993 and Trafford Nominees has been the trustee since the trust's inception.[20]
[20] Brandis Affidavit [5], 'GJB-3'; Berresford Affidavit [8] - [11], 'PB-1'.
Trafford Nominees holds two major assets on trust for the Berresford Trust. The first of those is shares in Everstone Group, of which Trafford Nominees holds approximately 30%.[21] The second asset Trafford Nominees holds on trust for the Berresford Trust is approximately 55% of the shares in Westate Resources Ltd (Westate), a company incorporated in the United Kingdom, of which Mr Berresford is the managing director.[22]
[21] Berresford Affidavit [12].
[22] Berresford Affidavit [13] - [14], 'PB-2'.
Annexed to the Berresford Affidavit are a balance sheet of the Berresford Trust as at 30 April 2024[23] and a consolidated statement of financial position for Westate as at 31 March 2024.[24] As observed by the defendants, there is no evidence as to the provenance of the balance sheet, which is unsigned. It states that, at that time, the Berresford Trust had current assets of 'Cash at Bank' of $16,441 and 'Receivables' of $535,248. The balance sheet also refers to non-current assets described simply as 'Investments' of approximately $39 million. However, no detail is given about the composition or valuation of the Receivables or Investments of the Berresford Trust. Liabilities of approximately $2 million are recorded, described only as 'Creditors & Borrowings'. There are no notes or other information as to what the Receivables, Investments or Liabilities recorded relate to.
[23] Berresford Affidavit [15], 'PB-3'.
[24] Berresford Affidavit [16], 'PB-4'.
Trafford Nominees has also filed two undertakings. The first is an undertaking of Paul Berresford in his capacity as principal of the Berresford Trust that he will not exercise his powers to remove Trafford Nominees as trustee.[25] The second is an undertaking of Trafford Nominees as trustee of the Berresford Trust, executed for and on its behalf by its directors, Mr and Mrs Berresford, undertaking that Trafford Nominees will not resign as trustee.[26]
[25] Undertaking of Paul Berresford dated 7 June 2024.
[26] Undertaking of Trafford Nominees Pty Ltd dated 7 June 2024.
There is no evidence as to the financial capacity of Mr and Mrs Berresford, who stand behind Trafford Nominees and may stand to gain from the litigation as beneficiaries of the Berresford Trust.

The parties' respective positions in relation to whether security for costs should be ordered

I do not repeat the parties' submissions, which are set out in their respective outlines of submissions and were expanded upon at the hearing of the application.

Threshold question

In summary, the defendants' position on the threshold question is as follows.
1.Trafford Nominees has a low share capital of just $2 and owns no land in Western Australia. Its only assets are its shares in Everstone Group and in Westate. Other than to point to the fact it owns shares in Everstone Group, Trafford Nominees has not adduced evidence of its capacity to meet an adverse costs order.
2.The Berresford Affidavit does not demonstrate that Trafford Nominees has capacity to pay costs. The attached balance sheet of the Berresford Trust is an unsigned one‑page document of unknown provenance. That aside, Trafford Nominees' current assets are stated to be 'Cash at Bank' of $16,441 and 'Receivables' of $535,248. The balance sheet also refers to non‑current assets described only as 'Investments' of approximately $39 million. However, no detail is given about the composition or valuation of the Receivables or Investments of the Berresford Trust. Liabilities of approximately $2 million are recorded, described only as 'Creditors & Borrowings'.
3.In any event, the Everstone Group and Westate shares are not assets that can practically be realised by Trafford Nominees to meet an adverse costs order. The shares in Everstone Group are a minority shareholding in a private company, the only real market for which is the defendants. Further, if Trafford Nominees' action is unsuccessful, it retains the Everstone Group shares and cannot be compelled to sell them to the defendants.
4.Westate's consolidated statement of financial position has no bearing on Trafford Nominees' capacity to meet an adverse costs order. In any event, the Westate shares are held on trust and cannot be easily realised to meet such an order. Westate is a private company incorporated in the United Kingdom.
5.Trafford Nominees is a trustee company, and its only assets are the shares in Everstone Group and Westate, which are held on trust for the Berresford Trust. Trafford Nominees' solvency depends on its right as trustee to an indemnity, and as such, it is reasonable to treat Trafford Nominees as without assets to meet an adverse costs order unless some step is taken to alleviate the difficulties the defendants would have in executing an order for costs. The onus is on Trafford Nominees to demonstrate that it has assets from which it could meet the costs of any judgment, despite its trustee status.[27]
6.The undertaking given by Mr Berresford that he will not exercise his powers to remove the plaintiff as trustee, and the undertaking given by Trafford Nominees that it will not resign as trustee, do not remedy the problems outlined as to Trafford Nominees' capacity to meet an adverse costs order. This is because the right to an indemnity is between the trustee and the beneficiaries. The trustee can elect not to call on the indemnity, and the defendants could not compel it do so. In any event, there is no evidence of realisable assets held by Trafford Nominees, as outlined.
7.Taking account of these matters, independently or together, there is credible testimony that there is reason to believe Trafford Nominees will be unable to pay the defendants' costs in full and without delay in the ordinary course of business from service of an allocatur. As such, the court's jurisdiction to make an order that Trafford Nominees give security for costs is enlivened.
[27] Referring to Mila Properties Pty Ltd v Caldwell [2009] WASC 282 (Mila Properties) [6], [8].

Trafford Nominees' position in relation to the threshold question is, in summary:
1.Trafford Nominees holds 30% of the shares in Everstone Group. The defendants' assertion that they are the only market for Trafford Nominees' shares is not supported. The defendants have adduced no evidence of any likely difficulty in realising Trafford Nominees' shares in Everstone Group, a matter that would be in the defendants' knowledge. Generic references to difficulties that can be experienced in realising minority shareholdings in private companies are artificial in the present circumstances.
2.The balance of the shares in Everstone Group, being 70% of the shares, are held by the second and fourth defendants. Absent evidence to the contrary, the practical reality is that the defendants will have no difficulty realising Trafford Nominees' shares in Everstone Group. Trafford Nominees refutes the defendants' contention that it cannot be compelled to sell its shares in Everstone Group.
3.It says that, as those shares are personal property,[28] in which there is a saleable interest[29] and which are transferrable and transmissible,[30] they can be made the subject of a property (seizure and sale) order under div 6 of pt 4 of the Civil Judgments Enforcement Act 2004.[31]It was suggested that there is no inherent reason why the sheriff could not be appointed to sell the shares in Everstone Group held by Trafford Nominees to meet any adverse costs order.
[28] As provided in s 1070A(1)(a) of the Corporations Act 2001 (Cth).
[29] As provided in s 74(1) of the Civil Judgments Enforcement Act 2004 (CJEA).
[30] As provided by s 1070A(1)(b) of the Corporations Act.
[31] CJEA s 74(2).
As observed by von Doussa J in Beach Petroleum NL v Johnson,[32] the threshold requirement under s 1335(1) of the Corporations Act is satisfied if it appears by credible testimony that there is reason to believe that if the defendant is successful circumstances may then exist in which the plaintiff will be unable to pay any costs awarded against it. A corporation 'will be unable to pay' costs within the meaning of s 1335 if it can only do so if given extended time to realise assets which might be difficult to realise at a price sufficient to pay the costs.[33]
[32] Beach Petroleum NL v Johnson (1992) 7 ACSR 203 (Beach Petroleum), 204 - 205.
[33] Beach Petroleum, 205, citing Southern Cross Exploration NL v Fire & All Riks Insurance Co Ltd (1985) 1 NSWLR 114, 121.
I am satisfied on the evidence adduced that there is reason to believe that Trafford Nominees will be unable to pay the costs of the defendants if it is unsuccessful. Trafford Nominees has a paid-up share capital of just $2. Other than cash of approximately $16,000 stated to be held by it as at 31 March 2024, its only potential asset within the jurisdiction is its 30% shareholding in Everstone Group. Contrary to the submissions made on behalf of Trafford Nominees, I do not accept this is an asset that could be readily realised to meet any adverse costs order.
As observed by Trafford Nominees, s 1070A(1)(b) of the Corporations Act provides that shares in a company are transferrable or transmissible as provided by the relevant company's constitution. Everstone Group's constitution is not in evidence. Whilst theoretically it may be possible for such shares to be the subject of a property seizure order under the CJEA, there is no evidence there would be a ready market for such shares. Further, as submitted on behalf of the defendants, Trafford Nominees is not the beneficial owner of the shares in Everstone Group. They are held on trust by it as trustee of the Berresford Trust.
It was submitted on behalf of Trafford Nominees that it is for the defendants to prove that there is no market for the shares in Everstone Group. However, as observed by Master Sanderson in Mila Properties:[34]
If a party in the position of the plaintiff wishes to establish that despite its trustee status it has assets from which it could meet the costs of any judgment, it should produce evidence to that effect. …
[34] Mila Properties [8].
Trafford Nominees has not produced evidence as to the saleability of its shares in Everstone Group. Despite its submissions that the shares may be the subject of an enforcement order, there are questions as to the practical ability to sell the shares to third parties. It is evident that they are shares in a small proprietary company, which operates as a private services firm. In the absence of evidence to the contrary, it is unlikely that there would be a market for the shares outside those involved in the business operated through the company. The defendants' submission to the effect that Trafford Nominees' shares in Everstone Group are not an asset that could be realised readily is, in my view, to be preferred.
This is compounded by the further difficulty in the circumstances where Trafford Nominees is not the beneficial owner of the shares in Everstone Group. Trafford Nominees is a trustee company and holds the shares, and indeed all assets of the company, in its capacity as trustee, on trust for the beneficiaries of the Berresford Trust.
As observed by Smithers J in Laundry Coin Wash Nominees Pty Ltd v Dunlop Olympic Ltd:[35]
Where the only tangible assets of an applicant company are held in trust for another entity and its solvency depends on its right as trustee to indemnity against that entity it is necessary for the court to have in mind the difficulties which a successful respondent would face in attempting to execute in respect of an order for costs. Indeed, unless some step is taken to alleviate those difficulties it is reasonable and just to treat the applicant company as if it were without assets to meet such a liability.[36]
…
I have concluded that an applicant being a trustee company which desires to resist an order for security for costs should establish that recourse to property held by or for it will be available to the party against whom it has brought its action and be adequate, at the appropriate time, to meet the possible liability for costs.[37]
[35] Laundry Coin Wash Nominees Pty Ltd v Dunlop Olympic Ltd [1985] ATPR 40-584 (Laundry Coin Wash). See also Sugarloaf Hill Nominees Pty Ltd v Rewards Projects Ltd [2011] WASC 19 [35(d)] and the authorities referred to (Corboy J).
[36] Laundry Coin Wash, 46,729.
[37] Laundry Coin Wash, 46,731.
It was submitted on behalf of Trafford Nominees that the Trust Deed for the Berresford Trust, as varied[38] provides that Trafford Nominees in its capacity as trustee of the Berresford Trust has the power to institute proceedings and proceed to a final determination or compromise of such,[39] and has a right to be indemnified out of the trust fund in respect of any expense and liability that may be incurred in (relevantly) prosecuting any action.[40] It submitted, in effect, that the right of indemnity would extend to an adverse costs order and, if Trafford Nominees did not pay over or realise its shares in the Everstone Group to satisfy the amount of any costs order against it, the defendants could pursue enforcement action against trust property or seek the appointment of a liquidator to Trafford Nominees and, in turn, a receiver of the trust.
[38] Berresford Affidavit [11], referring to the Trust Deed dated 1 November 1993 attached as 'GJB-3' to the Brandis Affidavit (Trust Deed), as varied by the Deed of Variation attached as 'PB-1' to the Berresford Affidavit (Deed of Variation).
[39] Trust Deed, cl 8A(u).
[40] Trust Deed, cl 9B(a), (d) and (e); Deed of Variation, Attachment 'A'(4).
I am not persuaded that would allow a timely recovery of any costs Trafford Nominees is ordered to pay. In any event, the difficulties identified in selling the shares in Everstone Group would remain.
For these reasons, the defendants' submissions are to be preferred. I am satisfied that the defendants have shown that there is reason to believe that Trafford Nominees will be unable to pay the defendants' costs if they are successful in their defence. The threshold question having been satisfied, it is also necessary to consider other factors relevant to the exercise of the court's discretion, and whether security for costs should be ordered.

Discretionary factors

Merits

As to the discretionary factors, the defendants submit that the merits of the underlying claims should be regarded as a neutral factor.[41] Trafford Nominees acknowledges that, in considering the plaintiff's prospects of success, the court cannot go into the merits in detail, unless it can clearly be demonstrated that there is a high degree of probability of success or failure.[42]
[41] Referring to Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664 [37].
[42] Referring to Phoenix Eagle [20].
However, Trafford Nominees suggests that the evidence identifies two occasions on which the first and second defendants (Everstone Group and Ms Chick) used the resources of Everstone Group to confer a benefit on Ms Chick and BV2. It says the real issues in this matter are likely to be the extent of the conduct complained of, and if found to be oppressive, the terms of any orders to be made under s 233 of the Corporations Act. Trafford Nominees contends that the merits of the case favour it and should cause the court to hesitate in exercising its discretion to order security for costs.
Objections were raised by the parties to the use of evidence in the substantive proceedings for the purpose of the application. It is not necessary for me to consider that evidence in any detail or to reach a view on the merits of the claim or defence. The matters raised go to the heart of the dispute between the parties. The defendants reject the allegations of oppressive or unfair commercial conduct. They will be the subject of determination at trial, if the dispute between the parties is not otherwise resolved.
It is not appropriate that I attempt to undertake a detailed analysis of the merits of Trafford Nominees' case for the purpose of this application. It is sufficient to say that there is nothing to suggest that its claim is not bona fide and, to the extent that any assessment can be made of the merits of its claim at this stage of the proceedings, it cannot be said that it has no reasonable prospect of success. In saying that, I make it clear that I have formed no view, at this stage, in relation to the ultimate success or otherwise of Trafford Nominees' claim.

Delay

The other factor raised by the parties relevant to the exercise of the court's discretion is the delay in the defendants making an application for security for costs. The defendants did not apply for security for costs until April 2024, some 18 months after the proceedings were commenced and the defendants entered an appearance in October 2022.
Trafford Nominees' position is, in essence, that the application should not be allowed at this late stage. An application for costs should be made at an early stage of the proceedings, before the plaintiff has committed substantial sums of money towards litigating its claim.[43] It says that the defendants did not make the application until after Trafford Nominees was successful in a contested discovery application and after the parties had attended a mediation conference. It also refers to having been put to the expense of instructing an expert to provide a remuneration report in respect of the second and third defendants' salaries.
[43] Referring to Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301 (Buckley), 309; Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [2009] WASC 299 (Botswana) [22] ‑ [23]; Milosevska v Milosevski [2019] NSWSC 711 (Milosevska) [76].
The defendants' position is that, although there has been a delay, this factor is of less significance in the circumstances where a hearing is not imminent and there has been some forewarning of the application.[44]The defendants say that they first raised the issue of security for costs at an early stage in a letter dated 18 April 2023 from their solicitors to Trafford Nominees' solicitors. They point to the course of the proceedings and submit that, in the circumstances, the delay in bringing the application for security for costs is not unreasonable.
[44] Referring to Ollerenshaw v Uniting Church in Australia Property Trust (NSW) [2017] NSWSC 1637 (Ollerenshaw) [55].
The relevant procedural history is as follows.
1.The proceedings were issued on 4 October 2022.
2.The defendants entered an appearance on 17 October 2022.
3.Affidavits of Ms Chick and Mr Brandis in response to Trafford Nominees' substantive application were filed on 1 December 2022, in accordance with orders made by consent on 18 October 2022.
4.Orders were made on 8 December 2022 for any affidavits in reply by Trafford Nominees to be filed by 27 February 2023.
5.Directions hearings were adjourned by consent and, on 21 February 2023, orders were made for each party to file any materials in relation to discovery and referring the matter to a mediation conference.
6.By 3 March 2023, the parties had each filed submissions in relation to discovery.
7.On 7 March 2023, orders were made adjourning the matter sine dine.
8.On 18 April 2023, orders were made for the defendants to provide discovery by categories and granting leave to Trafford Nominees to issue subpoenas to Everstone Wealth Pty Ltd and Everstone Super Pty Ltd.
9.The defendants provided discovery by affidavit on 2 May 2023.
10.The mediation conference took place on 20 September 2023. No settlement was reached, and the mediation was adjourned sine die.
11.On 27 March 2024, orders were made by consent for the defendant to give discovery of financial statements of Everstone Group for the financial years ended June 2015 to 2018.
12.On 19 April 2024, the defendants filed their application for security for costs and for the action to proceed by way of pleadings.
The defendants state that, following communications between the parties' solicitors, the issue of security was put on hold as the matter was listed for mediation on 20 September 2023.[45] The mediation was adjourned and, following exchanges between the parties concerning potential resolution of the matter, which were unsuccessful, the defendants' solicitors wrote to the plaintiff's solicitors on 28 March 2024 in relation to security for costs. The defendants' solicitors also raised in that letter the issue of the action proceeding on pleadings.[46]
[45] Brandis Affidavit [7] - [8], 'GJB-7'.
[46] Brandis Affidavit [8] - [10], 'GJB‑8'.
The defendants submit that the issue of security was raised with Trafford Nominees' solicitors again once it became apparent that the parties' without prejudice discussions had not resulted in a resolution. They submit there is no prejudice to Trafford Nominees caused by the delay and that given Trafford Nominees wishes to progress the action to trial, the defendants face the real risk of being unable to recover their costs if they are successful in defending the action.
Any delay in bringing an application for security for costs is a factor in the exercise of the Court's discretion.[47] As submitted by the defendants, the factor of delay is less significant if the hearing is not imminent, or if there has been some forewarning of the application.[48]
[47] See for example Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 [68]; Mila [10] ‑ [17].
[48] Ollerenshaw [55].
As submitted by Trafford Nominees, applications for security for costs should generally be brought promptly. A plaintiff is entitled to know, at an early stage, whether it will be required to provide security so that it may make an informed decision about the financial risks of pursuing its claim. Delay in bringing such an application may prejudice the plaintiff, particularly where it has already committed substantial resources to the litigation in reliance on the absence of such an order.[49] An order for security is less likely to be made where there has been a delay in bringing the application and the plaintiff has incurred significant costs in the interim.[50]
[49] Buckley 309; Botswana [22] - [23].
[50] Milosevska [76].
In Christou v Stanton Partners Australasia Pty Ltd,[51] Kenneth Martin J stated:
Where delay has occurred it will not necessarily bar an order for security for costs, but generally the longer the delay, the more proximate the hearing and the more that has been done by the plaintiff to advance the case, the greater will be the significance of the delay and the more difficult it will be for the defendant to persuade the court that an order for security for costs will not be unfair or oppressive: Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, 514.
[51] Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 [22].
In this case, about 18 months elapsed between commencement of the proceedings and filing of the application for security for costs. However, as outlined, the application was brought within a relatively short time following mediation and, having regard to the procedural history, at a relatively early stage of the proceeding.
Trafford Nominees submitted that the defendants should have applied for security for costs before mediation, and that deferring an application for security until after mediation was one of the reasons given in Mila Properties for refusing the application in that case.
I do not consider Master Sanderson's observations in Mila Properties were intended to be of universal application, such that an application for security for costs must always fail where an application was deferred pending a mediation. Master Sanderson stated that 'the starting point in any application for security for costs is that it ought to be foreshadowed at the earliest possible opportunity and if no agreement is reached the application should be made promptly. A defendant who does not follow this practice runs a real risk that no security order will be made.'[52]
[52] Mila Properties [14].
As observed by the defendants, the circumstances in Mila Properties were different to those in the present case. In Mila Properties, the defendants also sought to rely on a change in the plaintiff's financial position to justify its delay in making the application for security. That was rejected on the basis there was nothing in the evidence to suggest that was why the defendants held off making their application.[53] The Master also stated that 'the action was just too far advanced'. The next step, if the action was not resolved at a resumed mediation, would be for the plaintiff to enter the matter for trial. The Master observed that, given how far the matter had progressed, the parties' witnesses must have been proofed and all documents assembled, and it was hard to see that the plaintiff had anything left to do other than to file the entry for trial documents and papers for the judge.
[53] Mila Properties [15] - [16].
This matter is not so far advanced as was the case in Mila Properties. The defendants foreshadowed an application for security for costs in April 2023 and brought the application within a relatively short time after the parties' communications following the adjourned mediation. Although Trafford Nominees refers to having incurred the costs of obtaining a remuneration report, there is no evidence as to the amount of costs incurred by Trafford Nominees in relation to the report or generally, or of any specific prejudice arising from the delay in bringing the application.
In my view, in the circumstances of this case, the delay is not such as to prevent the exercise of discretion in favour of an order for security for costs. Having considered the relevant discretionary factors, I am satisfied that the circumstances favour a grant of security for costs. I turn then to consider the quantum of the security to be provided.

Quantum of security

As observed by Pritchard J[54] in Construction Industries:[55]
The task for the court in determining the quantum of the security for the costs of the first tranche of the action is to determine what amount would provide the defendant with an adequate security for its costs, if it is successful at trial.[56] The aim is not to provide the defendant with a complete indemnity for its costs.[57] Rather, the task for the court is to calculate the sum which it thinks just to order to be secured, having regard to a reasonable estimate of the likely taxable costs of the defendant in question.[58] In making that assessment, the court does not engage in an exercise which is[59] precisely arithmetical in character. The task essentially is one of discretionary judgment, reasonable estimation and projection … and ultimately it is one involving a technique of judicious estimation.
[54] As her Honour then was.
[55] Construction Industries [45].
[56] Global Finance Group Pty Ltd (In Liq) v Marsden Partners (A Firm) [2004] WASC 52 [71] (Roberts‑Smith J).
[57] Brundza v Robbie and Co (No 2) [1952] HCA 49; (1952) 88 CLR 171, 175 (Fullagar J).
[58] Global Finance Group Pty Ltd (In Liq) v Marsden Partners (A Firm) [2004] WASC 52 [53] ‑ [58] (Roberts‑Smith J, referring to Associated Euro Atlantic Shipping Corporation v Maritime Union of Australia (Unreported, FCA, 22 August 1997).
[59] Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [2016] WASC 353 [82] (Kenneth Martin J).
As Pritchard J also observed in Construction Industries,[60] 'it is not appropriate to assess the quantum of the security for costs which would be adequate by reference to the minutiae of the legal work likely to be undertaken at each stage of the litigation … . A more broadbrush approach is both preferable and reasonable.'
[60] Construction Industries [50].
The applicant for security bears the evidentiary onus of satisfying the court as to the appropriate entitlement in respect of the quantum of security to be ordered.[61]
[61] See Milosevska [76].
The defendants did not initially file any evidence in support of the quantum of the security for costs sought. They rely on the Tassone Affidavit and the attached draft bill of costs.[62] I allowed the late filing of that affidavit on the basis Trafford Nominees was afforded an opportunity to put on evidence in response. It elected not to do so.
[62] Tassone Affidavit [4], 'DT-1'.
The draft bill of costs sets out the defendants' estimated recoverable costs on a party/party basis, if the matter were to proceed to trial on pleadings, which estimate amounts to $131,669.[63] The draft bill of costs assumes a trial of 5 days duration. Mr Tassone estimates that if the matter does not proceed on pleadings, the defendants' costs would be $111,649.[64]
[63] Tassone Affidavit [5].
[64] Tassone Affidavit [6].
I address the question of whether this action should proceed on pleadings in the following section of these reasons. I consider that rather than the action proceed on pleadings, given substantial affidavits have already been filed and the nature of the proceedings, the more appropriate course is for the parties to each file statements of facts and contentions and identify the documents upon which they rely. This will serve to identify the factual matters in dispute and the issues for determination.
Until the issues for determination have been distilled, the likely length of trial and further procedural steps remain uncertain. As such, the security to be provided will be limited, at this stage, to filing and service of the parties' statements of facts and contentions and lists of documents relied upon. The defendants will have liberty to apply for further security in relation to subsequent stages of the proceedings.
In respect of the quantum of security to be ordered, as noted, the aim is not to provide the defendant with a complete indemnity for its costs. Rather, a reasonable estimate of the likely taxable costs of the defendants is to be applied. The defendants' estimate includes $15,840 in respect of the application for security for costs and to proceed by way of pleadings. I have not taken account of those costs for the purpose of the security to provided. I consider that the appropriate amount to provide adequate security up until filing and service of statements of facts and contentions and lists of documents to be relied upon is $47,500.
Trafford Nominees is to provide security for costs by payment into court, unless some other form of security is agreed between the parties, and the proceeding will be stayed until the security ordered is provided.

Whether the action should proceed on pleadings

The defendants submit that the action ought to proceed on pleadings because it is apparent from the affidavit evidence filed by the parties that there are factual disputes in relation to the matters Trafford Nominees says give rise to oppression. They submit that Trafford Nominees appears to be relying on issues alleged to give rise to oppression that go beyond those in its originating process and supporting affidavit, and the extent to which those issues will be relied upon at trial is unclear. It gives examples of these in its written submissions.[65]
[65] Defendants' outline of submissions [34].
The defendants also say that there is a large volume of evidence filed by Trafford Nominees addressing various events including alleged meetings and conversations between the parties without delineating with precision or specificity the causes of action upon which the plaintiff relies.
The defendants submit, in essence, that pleadings will serve to clarify the claims and the issues to be determined. They refer to examples of oppression actions in which orders have been made to proceed by way of pleadings at trial in this court and in other jurisdictions.[66]
[66] Boniel v Camilleri [1999] NSWSC 174; Trafalgar West Investment Pty Ltd v Superior Lawns Australia Pty Ltd [2014] WASC 278; Russell v Lee Holdings Pty Ltd [No 3] [2020] WASC 346; ReRenex Founder Hold Co Pty Ltd [2024] VSC 244.
Whilst acknowledging that the court has power to dispense with pleadings under O 4A r 2(c) RSC, or to order pleadings as it deems appropriate, Trafford Nominees notes that the Supreme Court (Corporations) (WA) Rules 2004 (Corporations Rules) do not provide for pleadings. It states such are not routinely ordered in Corporations matters.[67]
[67] Referring to LCM Recoveries Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2023] WASC 181 [59].
It was submitted on behalf of Trafford Nominees that there is not voluminous affidavit material as stated by the defendants. There are three affidavits, the bodies of which total 37 pages. Trafford Nominees submits that to proceed by way of pleadings would cause prejudice by further delaying the proceedings, and the defendants' application for the action to proceed on pleading should be dismissed.
Whilst there are examples of cases in this and other courts in which oppression claims have proceeded on pleadings, as observed by Strk J in LCM Recoveries Pty Ltd v Federal Commissions of Taxation of the Commonwealth of Australia,[68] proceeding commenced by originating process in this court under the Corporations Act pursuant to r 2.2(1)(a) of the Corporations Rules do not ordinarily proceed by way of pleadings. There is, however, power under O 1 r 4B RSC to order that pleadings be filed where the court considers that such will promote timely and efficient determination of the dispute.
[68] [2023] WASC 181 [59].
The affidavit of Paul Berresford sworn on 3 October 2022 and filed on 4 October 2022 in support of the substantive application is 442 pages in length. The body of the affidavit comprises 68 paragraphs and runs to 13 pages. The attachments, which include ASIC extracts, email and other communications, share transfer forms, shareholder notice, and various bundles of financial statements, amongst other things, comprise approximately 420 pages.
There are two responsive affidavits, both sworn on 1 December 2022, one by Amanda Chick, the second defendant, and the other by Gavin James Brandis, the third defendant. Ms Chick's affidavit runs to 71 pages, the body of which is 20 pages in length and the balance made up of attachments comprising copies of emails and other communications, notice of assessment, PAYG payment summaries, and an income statement. Mr Brandis' affidavit is 41 pages in length, 12 of which are the body of the affidavit and the balance attachments, being copies of communications, an income statement, and a salary survey.
In my view, it is not necessary in this case for there to be pleadings to promote the timely and efficient determination of the dispute between the parties. I consider that, given substantial affidavits have already been filed and the nature of the proceedings, identification of the factual matters in dispute and the issues for determination would be more efficiently achieved by:
(a)Trafford Nominees filing and serving a statement of facts and contentions and a list of the documents on which it relies in support of its claims; and
(b)the defendants filing and serving their response to Trafford Nominees' statement of facts and contentions and a list of the documents on which they rely in defence of Trafford Nominees' claims.
Following filing and service of the parties' respective statements of facts and contentions and lists of documents relied upon, further consideration may be given to appropriate directions to facilitate distillation of the issues for determination and to progress the matter to trial.

Conclusion and orders

For these reasons, I am satisfied that it is appropriate to make an order for security for costs in favour of the defendants limited, at this stage, to $47,500 up to the filing and service of the parties' statements of facts and contentions and lists of documents relied upon. The plaintiffs are to provide security for costs by payment into court, unless some other form of security is agreed between the parties, and the proceeding will be stayed until the security ordered is provided. The defendants will have liberty to apply for further security in relation to subsequent stages of the proceedings.
In relation to ensuring the issues are sufficiently clear for the matter to proceed to trial, orders will be made, as outlined, for the parties to file statements of facts and contentions and lists of the documents relied upon by each of them.
I will hear from the parties as to the final form of the orders to be made, including the date by which security for costs is to be provided by Trafford Nominees, the statements of facts and contentions and lists of documents are to be filed, and as to costs.
If the parties are able to agree orders, they should file a minute of agreed orders by 29 July 2025. If they are unable to agree, they should each file minutes of proposed orders by that date.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to Master Russell
15 JULY 2025