Legal Research
Cases
Trility Pty Ltd v Ancon Drilling Pty Ltd

Trility Pty Ltd v Ancon Drilling Pty Ltd

Link copied

Case Copied 25 October 2013 30 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

ARBITRATION LIST

No. S CI 2013 5106

TRILITY PTY LTD	Plaintiff
v
ANCON DRILLING PTY LTD	Defendant

---

JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2013
DATE OF JUDGMENT:	25 October 2013
CASE MAY BE CITED AS:	Trility Pty Ltd v Ancon Drilling Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 577

---

PRACTICE AND PROCEDURE – Security for costs – Arbitration - Commercial – significance of delay in making application – weighing of discretionary factors – Corporations Act 2001 (Cth), s 1335(1) – Commercial Arbitration Act 1990 (Qld), s 47 – Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 – KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 – Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 – Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Harris	Fisher Jefferies
For the Defendant	Dr M. Collins SC Mr R. Williams	King & Wood Mallesons

HIS HONOUR:

Introduction

This application has been brought pursuant to s 47 of the Commercial Arbitration Act 1990 (Qld) (“CAA”), s 1335 of the Corporations Act 2001 (Cth) and under the Court’s inherent jurisdiction, for an order for security for costs in relation to an arbitration due to commence on 25 November 2013.

The plaintiff in this proceeding, Trility Pty Ltd (“Trility”), is the respondent to an arbitration (“the Arbitration”) before Mr Michael Shand QC (“the Arbitrator”) with the defendant, Ancon Drilling Pty Ltd (“Ancon”) pursuant to an Arbitration Retainer Agreement dated 15 December 2011.

The proceeding was commenced by originating motion filed in this Court on 3 October 2013 and seeks, inter alia, security for costs in the amount of $1,174,481.82, with the Arbitration to be stayed until such security is provided or until further order.

Section 47 of the CAA provides:

“47 General power of the court to make interlocutory orders
The court shall have the same power of making interlocutory orders for the purposes of and in relation to arbitration proceedings as it has for the purposes of and in relation to proceedings in the court.”

It is common ground that this Court is vested with jurisdiction in respect of the CAA by reason of s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld). In any event, s 47 of the Commercial Arbitration Act 1984 (Vic) confers on this Court the same power as its Queensland counterpart.[1]

[1]See PWT Asia/Pacific Pty Ltd v Boncorp Pty Ltd (unreported, Supreme Court of Victoria, Byrne J, 23 November 1993, BC9304560).

Section 1335(1) of the Corporations Act provides:

“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…

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.

Keep reading for free

Create a free CaseChat account to read Trility Pty Ltd v Ancon Drilling Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] VSC 577
Decision Date: 25 October 2013

CaseChat Overview and Summary

In the matter of Trility Pty Ltd v Ancon Drilling Pty Ltd, the dispute before the Court involved an application for security for costs in relation to pending arbitration proceedings. The application was brought by the respondent, Ancon Drilling Pty Ltd, against the applicant, Trility Pty Ltd, pursuant to the provisions of the Commercial Arbitration Act 1990 (Qld). The primary issue for determination was whether the applicant should be required to provide security for the costs of the arbitration, given the delay in making the application, and the weighing of the discretionary factors set out in section 47 of the Commercial Arbitration Act 1990 (Qld).

The Court considered the relevant legislative provisions and relevant case law in making its decision. The court was required to consider the relevant factors under section 47 of the Commercial Arbitration Act 1990 (Qld), including the merits of the case, the financial circumstances of the parties, and any other relevant factor. The court also considered the significance of the delay in making the application and the impact it had on the arbitration proceedings. The Court referred to a number of cases in its reasoning, including Livingspring Pty Ltd v Kliger Partners, KP Cable Investments Pty Ltd v Meltglow Pty Ltd, Christou v Stanton Partners Australasia Pty Ltd, and Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd.

After considering the evidence and submissions, the Court found that the delay in making the application was significant and weighed heavily against the applicant. The Court also found that the applicant's financial circumstances were such that it was not likely to be able to pay the respondent's costs if it were to lose the arbitration. The Court held that the respondent had made out a prima facie case for security for costs, and ordered the applicant to provide security in the sum of $500,000 within 14 days. The Court also made orders for the costs of the application.

Orders