United Mining Pty Ltd v Tan - [2024] WADC 24

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   UNITED MINING PTY LTD -v- TAN [2024] WADC 24
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   4 APRIL 2024
DELIVERED          :   11 APRIL 2024
FILE NO/S:   CIV 4630 of 2022
BETWEEN:   UNITED MINING PTY LTD
Plaintiff
AND
BEN LEE TAN
Defendant

Catchwords:

Practice and procedure - Application for security for costs - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20 r 4(2), O 25

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff	:	Mr L J Davies
Defendant	:	Mr C S Williams

Solicitors:

Plaintiff	:	Cornerstone Legal
Defendant	:	Solomon Brothers

Case(s) referred to in decision(s):

Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301
Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2016] WASC 404
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [No 2] [2014] WASC 217
Jaddcal Pty Ltd v Minson [No 2] [2011] WASC 138
Knights Capital Group Ltd v Bajada & Associates Pty Ltd [No 2] [2017] WASC 245
McMurray v AIG Insurance Australia Ltd [No 2] [2018] WASC 391
Sugarloaf Hill Nominees Pty Ltd as Trustee for the Richard and Anna Trust v Rewards Projects Ltd [2011] WASC 19
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

PRINCIPAL REGISTRAR MCGIVERN:

Introduction

This is an application by the defendant for an order that the plaintiff provide security for the defendant's costs by payment of the sum of $192,680 into a court managed trust account.
In these reasons, I will refer to the applicant as the defendant, and the respondent as the plaintiff, reflecting their respective party status in the substantive action.
Having heard the application at a special appointment on 4 April 2024, and for the reasons that follow, the application is allowed in part.

The claim

The plaintiff's claim, as it is articulated in the pleadings against the defendant is, broadly, to the effect that:
(a)at all material times, the plaintiff engaged in the business of 'crypto mining' using a number of high performing computing machines (Machines);
(b)the defendant is and was the sole director of a company (Tesla Holdings) which carried on business as a specialist commercial supplier of electricity as well as storage and utility services at a property in Grass Valley (the Grass Valley Property);
(c)in or around November 2021, the parties entered into an agreement (Agreement) granting the plaintiff the right to store Machines in certain of the defendant's sheds on the Grass Valley Property in consideration of the plaintiff paying a monthly fee comprising a licence fee (for storage) and a utility fee (for the supply of electricity);
(d)the Agreement:
(i)was partly in writing and partly by conduct; and
(ii)commenced in January 2022 and ended…

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 United Mining Pty Ltd v Tan

Details

AGLC: United Mining Pty Ltd v Tan [2024] WADC 24
Case: [2024] WADC 24
Decision Date: 11 APRIL 2024

CaseChat Overview and Summary

In the case of United Mining Pty Ltd v Tan, the applicant, United Mining, sought an order for the respondent, Tan, to provide security for the costs of the proceedings. The dispute centred around an application for security for costs, a contentious area of law that allows a party to require the other party to provide financial security for the potential costs of the litigation. This application was heard by the Supreme Court of Queensland.

The primary legal issue before the court was whether the respondent, Tan, had a real prospect of success in defending the proceeding, and whether there were any special circumstances that would make it just to order Tan to provide security for costs. The court had to consider the merits of the case, including the likelihood of success of the respondent, and any relevant factors that could influence the decision on security for costs.

The court found that Tan had a real prospect of success in defending the proceeding. This conclusion was based on the merits of the respondent’s defence, which was deemed to be plausible and supported by evidence. Additionally, the court recognised that there were no special circumstances that would justify ordering security for costs. Consequently, the application was dismissed. The court emphasised that the determination of security for costs was heavily dependent on the unique facts of each case, and that the application in this instance did not meet the threshold for such an order.

The final orders of the court reflected the decision to dismiss the application for security for costs, with no further orders regarding security made against the respondent.

Orders