Westpac Banking Corporation v Ninan [No 2]
[2015] WASC 315
•20 AUGUST 2015
WESTPAC BANKING CORPORATION -v- NINAN [No 2] [2015] WASC 315
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 315 | |
| Case No: | CIV:2202/2014 | ON THE PAPERS | |
| Coram: | CHANEY J | 20/08/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for security of costs to be dealt with first | ||
| B | |||
| PDF Version |
| Parties: | WESTPAC BANKING CORPORATION GEORGE NINAN MOLLY GEORGE |
Catchwords: | Practice and procedure Competing applications for security for costs and discovery Proper order in which applications should be heard |
Legislation: | Nil |
Case References: | Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 Ninan v Westpac Banking Corporation [2015] WASCA 94 Westpac Banking Corporation v Ninan [2014] WASC 456 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GEORGE NINAN
First Defendant
MOLLY GEORGE
Second Defendant
Catchwords:
Practice and procedure - Competing applications for security for costs and discovery - Proper order in which applications should be heard
Legislation:
Nil
Result:
Application for security of costs to be dealt with first
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : In person
Second Defendant : In person
Case(s) referred to in judgment(s):
Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
Ninan v Westpac Banking Corporation [2015] WASCA 94
Westpac Banking Corporation v Ninan [2014] WASC 456
1 CHANEY J: The writ of summons in this matter was issued by the plaintiff on 26 August 2014. On 2 October 2014, the plaintiff applied for summary judgment. On 3 November 2014, the defendants filed a defence and counterclaim. On 5 December 2014, I granted summary judgment for the plaintiff: see Westpac Banking Corporation v Ninan [2014] WASC 456. The counterclaim remained to be dealt with.
2 The defendants appealed against the orders for summary judgment. On 13 May 2015, Newnes JA ordered the appellants (defendants) to provide security for costs by 10 June 2015, failing which their appeal would stand dismissed: Ninan v Westpac Banking Corporation [2015] WASCA 94. An application for review of that decision was dismissed in the Court of Appeal, and on 11 June 2015, orders were made that the appeal stand dismissed and the appellants were ordered to pay the respondent's costs of the appeal.
3 Following dismissal of the appeal on 14 June 2015, the defendants filed an application in this action for discovery.
4 On 16 June 2015, the plaintiff filed an application for security for costs on the defendants' counterclaim. The defendants contended that their application for discovery should be dealt with first, and discovery provided, before the application for security for costs was dealt with. The plaintiff contended that the security for costs application should be dealt with first. In order to resolve that question, I listed the matter for directions.
5 The defendants reside in Thailand, and the various proceedings both in this matter and in the Court of Appeal have proceeded by way of Mr Ninan representing both defendants and attending hearings by telephone. Shortly before the directions hearing to programme the two applications, Mr Ninan advised the court that he was unwell, and would be unable to attend by telephone. Accordingly, I made directions at that hearing that the parties file written submissions on the question of the order in which the two applications should be dealt with on the basis that I would deal with that question on the papers. It is that question to which these reasons are directed.
Plaintiff's submissions
6 The plaintiff submits that it brought its application for security for costs promptly after the application for discovery was made and that the application had been foreshadowed to the defendants before the defendants made their application for discovery. It submits that, given the primary purpose of an order for security for costs is to ensure that any costs ordered by the court in favour of a party will be paid (see Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 [18]), as a matter of logic, the application for security for costs should be determined before the plaintiff is put to the substantial costs of resisting the application for discovery, and if that application was successful, of discovery itself. It also foreshadowed its intention to apply to strike out the whole or parts of the counterclaim as not disclosing a cause of action, and that it would be necessary to deal with that application before the issues were crystallised for the purpose of discovery.
The defendants' submissions
7 The defendants' submissions ran to 18 pages. The vast bulk of those submissions were directed to arguments as to the substantive merits of the counterclaim, and to propositions that both my earlier summary judgment decision and the proceedings before the Court of Appeal were vitiated by fraud or other defects, and were of no force and effect. Putting aside questions as to the merit of those submissions, they are irrelevant to the limited question immediately before me, namely the order in which the applications should be dealt with.
8 In addressing the question of whether discovery should be dealt with before security for costs, the defendants' submissions, so far as I can understand them, are that full disclosure of documents is important to consider the various assertions of fraud which underlie the counterclaim. In relation to the application for security for costs, the submissions are all directed to the manner in which the application for security for costs was dealt with by the Court of Appeal judges and registrar. The defendants' submissions simply do not address the central question as to whether or not it is appropriate for the plaintiff to be provided with the protection which an order for security for costs provides before it is exposed to the significant costs of the continued prosecution of the counterclaim. The closest the defendants come to addressing that issue is the assertion that the plaintiff has used security for costs as a weapon to frustrate their claim and that that should not be allowed to continue.
Consideration of the issues
9 The categories of documents in respect of which discovery is sought is quite extensive. If the application for discovery were granted in the terms sought, it is likely to involve very significant expense on the part of the plaintiff. The plaintiff has foreshadowed an intention, if the matter is to proceed, to apply to strike out all or at least parts of the counterclaim. The counterclaim, in its present terms, makes wide ranging and extensive allegations of what is said to be deceptive and fraudulent conduct in relation to numerous transactions dating from 2002 through until 2014 and involving numerous parties. It is likely that substantial costs will be involved in any application to strike out the pleading.
10 The rationale for the grant of an order for security for costs would be substantially undermined if the question of security was deferred until some later time. It is well established that the party who wishes to obtain security for its costs is required to apply promptly for that relief. That is because a party is entitled to know as soon as possible, and before it commits substantial resources permitting the litigation, whether it will be required to provide security: Christou v Stanton Partners [20]. The defendants' position is that the application for security for costs should simply not be dealt with at all. That position is untenable. The plaintiff has an entitlement to have it dealt with. The requirement for security for costs applications to be dealt with early in proceedings supports the conclusion that the application by the plaintiff should be dealt with before substantial costs are incurred in the proceedings.
11 For those reasons, I will direct that the application for security for costs be heard first. The matter should be heard on the papers, and I propose to make the following orders:
(i) The plaintiff's application for security for costs on the counterclaim filed 16 June 2015 is to be determined on the papers.
(ii) Hearing of the defendants' application for discovery filed 14 June 2015 is adjourned pending the outcome of the application for security for costs.
(iii) The defendants are to file and serve any affidavits in opposition to the application for security for costs on or before 18 September 2015.
(iv) The plaintiff is to file any submissions on the application for security for costs by 2 October 2015.
(v) The defendants are to file any submissions in reply on the question of security for costs by 15 October 2015.
Defendants' style of submissions
12 Mr Ninan constantly refers to me, and to other judges who have had involvement in any of his multiple proceedings, as 'fraudsters'. I, and no doubt other judges with whom Mr Ninan has had dealings, have ignored that unfortunate mode of reference in my approach to the substantive issues which I am required to determine. However, I mention this manner of reference because, in his submissions in relation to this matter, Mr Ninan suggests that I should respond on affidavit to the various allegations in relation to me and other judges in those submissions, and in other communications with the court, and that the failure to do so amounts to some form of 'admission'. That submission is misconceived and demonstrates Mr Ninan's lack of appreciation of proper procedure or of the judicial function. The defendants should confine their submissions and affidavits to the substance of the issues which arise in the proceedings.
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