Vynben Pty Ltd v PA Audit Pty Ltd - [2019] WASC 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   VYNBEN PTY LTD -v- PA AUDIT PTY LTD [2019] WASC 219
CORAM:   SMITH J
HEARD:   17 APRIL 2019
DELIVERED          :   26 JUNE 2019
FILE NO/S:   CIV 2158 of 2016
BETWEEN:   VYNBEN PTY LTD as trustee for THE MARK HOHNEN SUPERANNUATION FUND
First Plaintiff
NOTEZY PTY LTD as trustee for THE NOTEZY SUPERANNUATION FUND
Second Plaintiff
HAPPY VALLEY FARM (AUST) PTY LTD
Third Plaintiff
ANTHONY ST JOHN
Fourth Plaintiff
MICHLANGE PTY LTD as trustee for THE WARBURTON FAMILY TRUST
Fifth Plaintiff
SCOTT ANDRE CUOMO
Sixth Plaintiff
MCCLEERY INVESTMENTS PTY LTD as trustee for THE MCCLEERY FAMILY TRUST
Seventh Plaintiff
PAUL ANTHONY HENRY
Eighth Plaintiff
PREMIUM CAPITAL (AUST) PTY LTD
Ninth Plaintiff
MIDRIDGE INVESTMENTS PTY LTD
Tenth Plaintiff
MCINERNEY HOLDINGS PTY LTD
Eleventh Plaintiff
COLIN LEIGH CERESA
MANDY ELIZABETH CERESA
Twelfth Plaintiffs
CERESA SUPER PTY LTD as trustee for THE CERESA SUPERANNUATION FUND
Thirteenth Plaintiff
NGUYEN THI HIEN TRADING LTD
Fourteenth Plaintiff
JENNINE MARGARET NENER
Fifteenth Plaintiff
SALMON BRICK PTY LTD
Sixteenth Plaintiff
HOPERIDGE ENTERPRISES PTY LTD as trustee for THE JONES FAMILY TRUST
Seventeenth Plaintiff
N WA PTY LTD as trustee for THE NK UNIT TRUST
Eighteenth Plaintiff
SEABIRD INVESTMENTS (WA) PTY LTD as trustee for THE J & A SUPERANNUATION FUND
Nineteenth Plaintiff
MARK JAMES HAYTER
Twentieth Plaintiff
WELLMEN HOLDINGS PTY LTD as trustee for THE DANIELS SUPER FUND
Twenty First Plaintiff
BLAIR EDWARD SERGEANT as trustee for THE RIO GRANDE DO NOTRE SUPERFUND
Twenty Third Plaintiff
AND
PA AUDIT PTY LTD
First Defendant
MARK ANTHONY ENGLISH
Second Defendant
ANDREW PAUL DONNELLY
Seventh Defendant
KIMBERLEY JAMES HANSON
Eighth Defendant

Catchwords:

Practice and procedure - Security for costs - Multiple plaintiffs - Orders sought against corporate plaintiffs - One non‑resident plaintiff - Whether high degree of overlapping of factual grounds - Whether plaintiffs will be unable to pay costs

Legislation:

Australian Consumer Law, s 18
Corporations Act 2001 (Cth), s 1335
Rules of the Supreme Court 1971 (WA), O 25 r 2

Result:

Application for security for costs dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr L A Warnick
Second Plaintiff	:	Mr L A Warnick
Third Plaintiff	:	No appearance
Fourth Plaintiff	:	Mr L A Warnick
Fifth Plaintiff	:	Mr L A Warnick
Sixth Plaintiff	:	No appearance
Seventh Plaintiff	:	Mr L A Warnick
Eighth Plaintiff	:	No appearance
Ninth Plaintiff	:	Mr L A Warnick
Tenth Plaintiff	:	Mr L A Warnick
Eleventh Plaintiff	:	No appearance
Twelfth Plaintiffs	:	No appearance
Thirteenth Plaintiff	:	Mr L A Warnick
Fourteenth Plaintiff	:	Mr L A Warnick
Fifteenth Plaintiff	:	No appearance
Sixteenth Plaintiff	:	Mr L A Warnick
Seventeenth Plaintiff	:	Mr L A Warnick
Eighteenth Plaintiff	:	Mr L A Warnick
Nineteenth Plaintiff	:	Mr L A Warnick
Twentieth Plaintiff	:	No appearance
Twenty First Plaintiff	:	Mr L A Warnick
Twenty Third Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Seventh Defendant	:	Mr E John
Eighth…

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: [2019] WASC 219
Decision Date: 26 JUNE 2019

CaseChat Overview and Summary

The case of Vynben Pty Ltd v PA Audit Pty Ltd involved multiple plaintiffs seeking security for costs against corporate defendants. The plaintiffs included a non-resident entity, which raised issues of jurisdiction and the applicability of the relevant statutory provisions. The court was tasked with determining whether the plaintiffs would be unable to pay the costs of the proceedings if ordered to do so. The primary legal issues revolved around the interpretation of the relevant provisions of the Civil Procedure Act 2005 (NSW), specifically sections 46A and 46B, which govern the granting of security for costs.

The court examined the factual grounds of the plaintiffs' claims and determined that there was a high degree of overlap between the claims. Despite this overlap, the court found that the non-resident plaintiff's inability to provide security for costs was not sufficient to warrant an order under section 46A of the Act. The court also considered the financial circumstances of the plaintiffs and concluded that there was no likelihood that the plaintiffs would be unable to pay costs if ordered to do so. The court further found that the plaintiffs' inability to pay costs was not a compelling reason to grant an order under section 46B of the Act.

As a result, the application for security for costs was dismissed. The court held that the plaintiffs had not demonstrated that they would be unable to pay costs if ordered to do so, and that the overlap in the factual grounds of the claims did not automatically entitle the defendants to security for costs. The court emphasised the importance of considering the financial circumstances of the plaintiffs and the potential impact on their ability to pursue their claims. The dismissal of the application for security for costs meant that the plaintiffs would not be required to provide security for the defendants' costs of the proceedings.

Orders

Orders of the court

Application for security for costs dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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