Trafford Nominees Pty Ltd v Everstone Group Pty Ltd

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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…

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Details
Case
[2025] WASC 282
Decision Date

CaseChat Overview and Summary

In the case of Trafford Nominees Pty Ltd v Everstone Group Pty Ltd, the dispute before the court revolved around issues of security for costs and the procedural framework within which the case should proceed. The case was heard in the Supreme Court of Western Australia, where Trafford Nominees sought security for costs against Everstone Group. The case involved complex corporate litigation under the Corporations Act 2001, specifically focusing on whether the proceedings should proceed on pleadings or through the filing of statements of facts and contentions.

The primary legal issues before the court were the appropriate procedural steps for the case, particularly considering the length and complexity of the affidavits filed by both parties. Trafford Nominees argued against the defendants' application for the case to proceed on pleadings, submitting that the existing affidavit material was sufficient and that proceeding by way of pleadings would cause unnecessary delay. The defendants, on the other hand, argued that the complexity of the case warranted a more structured approach through pleadings.

In determining the appropriate procedural steps, the court considered the provisions of the Supreme Court (Corporations) (WA) Rules 2004 and the Supreme Court (General Civil Procedure) Rules 1971. The court acknowledged that while the Supreme Court had the power to order pleadings or dispense with them, Corporations matters did not typically proceed by way of pleadings. However, the court also noted the power under Rule 4B of the Supreme Court (General Civil Procedure) Rules 1971 to order pleadings where it would promote timely and efficient determination of the dispute. After reviewing the affidavits and their contents, the court concluded that the existing affidavit material was sufficiently detailed and that proceeding with statements of facts and contentions would be more efficient. The court, therefore, dismissed the defendants' application for the case to proceed on pleadings.

The final orders of the court were that Trafford Nominees was to file and serve a statement of facts and contentions, and the defendants were to respond with their own statement of facts and contentions. The court also directed that the lists of documents relied upon by both parties be filed and served, thereby setting the stage for the case to proceed in a manner deemed most efficient by the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.