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
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- Case
- [2025] WASC 282
- Decision Date
CaseChat Overview and Summary
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
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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.