WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [2008] WASCA 218

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 218
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:49/2008	Heard:	28 AUGUST 2008
Coram:	PULLIN JA	Delivered:	28/08/08
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066) TERENCE ERNEST JAMES STREETER DAVID CHARLES COOPER JUNGLE CREEK GOLD MINES PTY LTD (ACN 008 795 033)
Catchwords:	Interlocutory application Application for security for costs Failure to produce the necessary credible testimony required No costs order made
Legislation:	Corporations Act 2001 (Cth), s 1335(1) Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 44(1)
Case References:	BBC Nominees (WA) Pty Ltd v Yangebup Developments Pty Ltd [2008] WASC 81 Beach Petroleum NL v Johnson (1992) 7 ACSR 203 FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241 Meni's Tailoring & Alterations Pty Ltd v Jeanswest Corporation Pty Ltd (2003) FCA 1108

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [2008] WASCA 218 CORAM : PULLIN JA HEARD : 28 AUGUST 2008 DELIVERED : 28 AUGUST 2008 FILE NO/S : CACV 49 of 2008 BETWEEN : WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066)

Appellant

AND

TERENCE ERNEST JAMES STREETER

First Respondent

DAVID CHARLES COOPER

Second Respondent

JUNGLE CREEK GOLD MINES PTY LTD (ACN 008 795 033)

Third Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [2008] WASC 78

File No : CIV 2126 of 2006

Catchwords:

Interlocutory application - Application for security for costs - Failure to produce the necessary credible testimony required - No costs order made

Legislation:

Corporations Act 2001 (Cth), s 1335(1)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 44(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : Mr I R Freeman

First Respondent : Ms P E Cahill

Second Respondent : Ms P E Cahill

Third Respondent : Ms P E Cahill

Solicitors:

Appellant : Lavan Legal

First Respondent : Maxim Litigation Consultants

Second Respondent : Maxim Litigation Consultants

Third Respondent : Maxim Litigation Consultants

(Page 3)

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

BBC Nominees (WA) Pty Ltd v Yangebup Developments Pty Ltd [2008] WASC 81
Beach Petroleum NL v Johnson (1992) 7 ACSR 203
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241
Meni's Tailoring & Alterations Pty Ltd v Jeanswest Corporation Pty Ltd (2003) FCA 1108

(Page 4)

1 PULLIN JA: This is an application by the respondents who seek an order that the appellant provide security for costs of the appeal. The application is made under the Corporations Act 2001 (Cth) s 1335(1) and the Supreme Court…

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: [2008] WASCA 218
Decision Date: 28 AUGUST 2008

CaseChat Overview and Summary

The matter involved Western Areas Exploration Pty Ltd, the applicant, and Streeter, the respondent, where the applicant sought an interlocutory application for security for costs. This case was heard in the Supreme Court of Western Australia. The applicant contended that the respondent had failed to provide the necessary credible testimony, leading to the application for security for costs. The court had to decide whether the applicant had made out a case for the imposition of security for costs, considering the respondent's failure to provide credible testimony.

The primary legal issue before the court was whether the applicant had demonstrated that the respondent's failure to produce credible testimony justified the imposition of security for costs. The court examined the relevant case law and the particular circumstances of the case to determine whether the applicant had established the necessary threshold for such an order. The court also considered whether the applicant's case had merit and whether the respondent's lack of testimony was a significant factor in the proceedings.

In its decision, the court found that the applicant had not met the required threshold to justify an order for security for costs. The court noted that the applicant's case was not without merit, but the failure of the respondent to provide credible testimony did not alone warrant the imposition of security for costs. The court held that the applicant had not demonstrated that the respondent's lack of testimony significantly prejudiced the proceedings, thus no order for security for costs was made. The court's reasoning was grounded in the need to balance the interests of both parties and the importance of ensuring that such orders are not made lightly.

Orders

Orders of the court

Interlocutory application - Application for security for costs - Failure to produce the necessary credible testimony required - No costs order made

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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