Trelowarren Systems Inc v Paperfree Solutions Pty Ltd

[2001] VSC 311

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4415 of 2001

TRELOWARREN SYSTEMS INCORPORATED AND ANOTHER	Plaintiffs
v.
PAPERFREE SOLUTIONS PTY. LTD. AND OTHERS	Defendants

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 AUGUST 2001
DATE OF JUDGMENT:	30 AUGUST 2001
CASE MAY BE CITED AS:	TRELOWARREN SYSTEMS INC. & ANOR. v. PAPERFREE SOLUTIONS PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 311

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CATCHWORDS:      Appeals from Master – Security for costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs by Counterclaim	Mr. G. Volovich	Law Partners
For the Third Defendant to Counterclaim	Mr. M.R. Carey	Darrer Muir & Fleiter

HIS HONOUR:

1. This matter is most confusing to say the least of it.

1. On 11 May 2001 Master Evans ordered that the plaintiffs give security for the first defendant's costs of the proceeding in the sum of $67,690 by 8 June 2001.

1. On 25 May 2001 Master Evans ordered that the first defendant (plaintiff by counterclaim) give security for the costs of the defendants to the counterclaim in the sum of $65,145 by 22 June 2001.

1. On 2 July 2001 Master Evans ordered that the plaintiffs' proceeding against the first defendant be stayed until the security ordered by him on 11 May is provided.

1. The plaintiff by counterclaim failed to provide the security as ordered by Master Evans on 25 May and on 23 July 2001 the third defendant to counterclaim filed a summons in the Court seeking an order that the plaintiff by counterclaim's counterclaim against it be dismissed.

1. The summons filed by the third defendant to counterclaim came before Master Wheeler on 9 August.

1. That day the Master ordered that the plaintiff by counterclaim provide $21,715.00 as security for costs of the third defendant to counterclaim from the security for costs ordered by Master Evans on 25 May 2001 on or before 16 August 2001 failing which the counterclaim against the third defendant to counterclaim be dismissed.

1. On 15 August 2001 the first defendant to the proceeding filed a summons in the Court seeking (inter alia) the following orders:

1.That the order of Master Wheeler of 9 August 2001 be varied to extend the time for provision of security for costs to the third defendant to counterclaim from 16 August to 27 August 2001.

2.That the first and second plaintiff's claim be dismissed for failure to comply with the order of Master Evans made 11 May 2001 whereby it was ordered that the plaintiffs provide security for the costs of the first defendant.

1. The defendants' summons came before Master Wheeler on 16 August 2001.

1. That day Master Wheeler ordered that the time fixed by his order of 9 August 2001 for the plaintiff by counterclaim to provide security for costs be extended to 31 August.  He otherwise adjourned the summons to 4 September 2001.

1. On 13 August the defendants by counterclaim filed a notice of appeal in the Court appealing against the order of Master Wheeler of 9 August.

1. On 21 August the defendants by counterclaim filed a notice of appeal in the Court appealing against Master Wheeler's order of 16 August.

1. In my opinion there was no justification for Master Wheeler interfering with the order of Master Evans of 25 May.  That order required the plaintiff by counterclaim to give security for the costs of the defendants (i.e. the three defendants) to the counterclaim in the sum of $65,145 and in the absence of any appeal by the plaintiff to counterclaim the order must stand.

1. The appropriate orders to have been made that day by the Master if he was so minded was an order extending the time for the giving of the security by the plaintiff to counterclaim and an order that if the plaintiff to counterclaim failed to give the security by the nominated date its counterclaim be stayed.

1. As to the first defendant's summons of 15 August again the appropriate order to make, if the Master was so minded, was an order extending the time for the giving of security by the plaintiff to counterclaim and an order that if the plaintiff to counterclaim failed to give the security by the nominated date its counterclaim be stayed.

1. In each case the appeal is allowed and the orders made by the Master on 9 August and 16 August are set aside.  In lieu thereof I make the following orders:

1.The time for compliance by the plaintiff to counterclaim with the order of Master Evans made on 25 May 2001 is extended to 14 September 2001.  In the event the plaintiff to counterclaim fails to comply with the order its counterclaim is stayed.

2.The plaintiff to counterclaim pay the third defendant to counterclaim's costs of the applications to Master Wheeler on 9 August and 16 August 2001 and the costs of each appeal.

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