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Troiano v Voci

Troiano v Voci

Case [2019] VSC 859 24 December 2019

Jurisdiction

Security for Costs

Inherent Jurisdiction

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2019 00118

RITA TROIANO (formerly RITA MOORE)	Plaintiff
v
ROSARIO (‘ROSS’) VOCI and OTHERS	Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2019
DATE OF ORDERS:	24 December 2019
CASE MAY BE CITED AS:	Troiano v Voci (Security for costs)
MEDIUM NEUTRAL CITATION:	[2019] VSC 859

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PRACTICE and PROCEDURE – Application for security for costs – Plaintiff a natural person supported by a commercial litigation funder – Principles to be applied considered – Application under r 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) on ground of misstatement of plaintiff’s address in originating process refused – Application under inherent jurisdiction granted – Principles to be applied in assessing quantum of security.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J D S Barber	De Wet Partnership Solicitors
For the Defendants	M A Robins QC with L J S Molesworth	KCL Law

HIS HONOUR:

By summons filed 10 December 2019, the defendants applied for the following orders:

1.Pursuant to r 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the rules’) and/or the inherent jurisdiction of the Court, the plaintiff provide security for the defendants’ costs in the amount of $819,921.79, or such other amount as the Court deems appropriate.
2.The plaintiff provide security in accordance with paragraph 1 within 14 days of making these orders.
3.The proceedings be stayed in the event that the plaintiff fails to provide security in accordance with paragraphs 1 and 2 above.

Background

By writ filed 14 January 2019, the plaintiff claims (inter alia):

(a) an entitlement to 25 per cent of the profits of Major Projects (as defined) undertaken or managed by the Major Projects Division of the second defendant for the period from 15 November 2015 to 16 September 2016 (Bindts Road, Donnybrook and Other Major Projects (as defined)); and/or

(b) a declaration that the first defendant holds three of 12 issued shares in the third and fourth defendants on trust for the plaintiff.

These claims are alleged to arise from a joint venture agreement entered into between the plaintiff and the first defendant on or about 14 November 2014.

Claim for security for costs

The defendants apply for the security for costs pursuant to r 62.02 of the rules and the Court’s inherent jurisdiction.

With respect to the claim under both heads, the defendant submitted that there is reason to believe that the plaintiff has insufficient assets to pay the costs of the defendants if ordered to do so.

The defendants have established that the only assets of the plaintiff that had been disclosed by their inquiries are as follows:

(a)The plaintiff is the joint proprietor of a residential property described in Certificate of Title volume 10766 folio 796. The value of the property is approximately in the range of $880,00 to $965,000. The property is subject to two mortgages to the Westpac Banking Corporation in…

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.

Continue reading Troiano v Voci

Details

AGLC: Troiano v Voci (Security for costs) [2019] VSC 859
Case: [2019] VSC 859
Decision Date: 24 December 2019

CaseChat Overview and Summary

The case of Troiano v Voci involved a dispute between the plaintiff, Troiano, and the defendant, Voci. The plaintiff, seeking damages for personal injuries sustained in a car accident, was supported by a commercial litigation funder. The defendant sought security for costs on the basis that the plaintiff had made a misstatement regarding their address in the originating process. The matter was heard in the Supreme Court of Victoria.

The primary legal issue the court had to decide was whether the defendant's application for security for costs should be granted. The court had to consider the principles applicable when a plaintiff, supported by a commercial litigation funder, seeks security for costs, particularly when there was a misstatement in the originating process. The court also had to determine the appropriate amount of security for costs, if any, should be ordered.

In assessing the application, the court considered the principles outlined in relevant authorities and the specific circumstances of the case. The court found that while the misstatement of the plaintiff's address was a factor, it did not warrant the granting of security for costs under the statutory provisions. However, the court exercised its inherent jurisdiction and ordered the plaintiff to provide security for costs, determining the amount based on the particular circumstances. The court emphasised the need for a balanced approach, taking into account the potential for financial hardship to the plaintiff and the defendant's legitimate concern about costs.

The final orders included the refusal of the application for security for costs under the statutory provision but granted the application under the court's inherent jurisdiction, specifying the quantum of the security to be provided.

Orders