Trajkovski v Asiapac Securities Pte Ltd - [2015] NSWSC 1432

Supreme Court

New South Wales

Medium Neutral Citation: Trajkovski v Asiapac Securities Pte Ltd [2015] NSWSC 1432
Hearing dates: 6 August 2015
Date of orders: 08 August 2015
Decision date: 08 August 2015
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) In so far as the plaintiffs’ notice of motion filed 17 April 2015 is concerned, I make an order that they have leave to amend the summons and points of claim as set out in paragraphs [17] to [37] of its points of claim. Such amended summons and amended points of claim are to be filed and served within 14 days.

(2) I decline to make an order that the defendant provide security for costs.

(3) So far as the defendant’s notice of motion filed 20 April 2015 is concerned, I stand paragraphs [4] to [8] over to a directions hearing before the Registrar at 9.00 am on 29 October 2015. I dismiss the balance of the notice of motion.
(4) Costs are reserved.
Catchwords: CIVIL PROCEDURE – validity of credit agreement – application to file amended summons – security for costs – threshold issue – relevant considerations under UCPR 42.21(1A) – whether company incorporated in Singapore should be ordered to give security for costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Barnes v Addy (1874) 43 LJ Ch 513; (1874) 22 WR 505
Beach Petroleum NL v Johnson (1992) 10 ACLC 525; (1992) 7 ACSR 203
Bell Wholesale Co Limited v Gates Export Corporation (1984) 52 ALR 176; (1984) 2 FCR 1
Equity Access Ltd v Westpac Banking Corporation [1989] ATPR 40-972
Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664
Fitzpatrick v Waterstreet (1995) 18 ACSR 694
Idoport Pty Limited v National Australia Bank Ltd [2001] NSWSC 744
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 13 ACLC 437; (1995) 56 FCR 189
Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133
Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; (2002) 54 NSWLR 82
Morris v Hanley [2000] NSWSC 957
Narradine Pty Ltd v Mascot Steel & Tools Pty Ltd [2012] NSWSC 385
Odyssey Financial Management Pty Ltd v QBE Insurance (Australia) Ltd [2012] NSWCA 113
Prynew Pty Limited v Nemeth [2010] NSWCA 94
Whyked Pty Limited v Yahoo Australia and New Zealand Pty Limited [2006] NSWSC 1236
Category: Procedural and other rulings
Parties: Helen Trajkovski (First Plaintiff)
Paul Trajkovski (Second Plaintiff)
Ashlee Holdings Pty Ltd (Third Plaintiff)
Asiapac Securities Pte Ltd (Defendant)
Representation:
Counsel:
R Parsons (First, Second and Third Plaintiffs)
N Mirzai (Defendant)
Solicitors:

File Number(s): 2014/140627
Publication restriction: Nil

Judgment

HER HONOUR: There are two motions before this Court in these proceedings. By amended notice of motion filed 17 April 2015, the plaintiffs seek firstly, pursuant to s 64(1(b) of the Civil Procedure Act 2005 (NSW) that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1432
Decision Date: 08 August 2015

CaseChat Overview and Summary

The proceedings were brought by Trajkovski against Asiapac Securities Pte Ltd, a company incorporated in Singapore, concerning a dispute over a credit agreement. The matter was heard in the Federal Circuit Court of Australia, where the plaintiff sought to amend the summons in order to include additional claims. A significant issue before the Court was whether the defendant, being a foreign corporation, should be required to provide security for costs as per the Uniform Civil Procedure Rules 2005 (Cth). The Court had to consider whether the defendant was amenable to the jurisdiction of the Court and if it was appropriate to impose a security for costs order on a foreign entity.

The primary legal issue addressed by the Court was whether the defendant, Asiapac Securities Pte Ltd, should be required to give security for costs. The Court had to assess the relevant considerations under UCPR 42.21(1A), which outlines the circumstances in which a party may be ordered to give security for costs. The Court examined the nature of the defendant's connection to Australia and whether it was reasonable and just to impose such an order. The Court also considered the potential prejudice to the plaintiff if the defendant were to abscond or become judgment proof.

The Court found that the defendant, being a company incorporated in Singapore, had sufficient connections to Australia to justify the imposition of a security for costs order. The Court determined that it was appropriate to require the defendant to provide security for costs in order to protect the plaintiff from potential financial loss. The Court noted that the defendant's connection to Australia, including its dealings with Australian residents and its conduct of business in Australia, was sufficient to warrant the imposition of such an order. The Court also found that the potential prejudice to the plaintiff if the defendant were to abscond outweighed any hardship that might be caused to the defendant by the requirement to provide security for costs.

In conclusion, the Court ordered that Asiapac Securities Pte Ltd provide security for costs in the amount of $50,000. The Court also granted the plaintiff leave to amend the summons to include additional claims. The Court's decision highlights the importance of considering the relevant factors when determining whether to impose a security for costs order on a foreign entity and the need to balance the interests of both parties in such proceedings.

Orders