Westpac Banking Corporation v Wittenberg - [2015] FCA 606

FEDERAL COURT OF AUSTRALIA
Westpac Banking Corporation v Wittenberg [2015] FCA 606

Citation: Westpac Banking Corporation v Wittenberg [2015] FCA 606

Parties:
WESTPAC BANKING CORPORATION v COREY WITTENBERG

WESTPAC BANKING CORPORATION
v DANIELLE LAVARS

LOUISE MURPHY v WESTPAC BANKING CORPORATION

WILLIAM LAWSON v WESTPAC BANKING CORPORATION

PAUL SMITH v WESTPAC BANKING CORPORATION

STUART MOORE v WESTPAC BANKING CORPORATION

LUCKY POULOS v WESTPAC BANKING CORPORATION

File numbers: NSD 405 of 2015
NSD 406 of 2015
NSD 409 of 2015
NSD 410 of 2015
NSD 411 of 2015
NSD 412 of 2015
NSD 413 of 2015

Judge: PERRAM J

Date of judgment: 19 June 2015

Catchwords: PRACTICE AND PROCEDURE – Security for costs – Stay of orders

Legislation: Taxation Administration Act 1953 (Cth)

Cases cited: Dye v Commonwealth Securities Limited [2012] FCA 992

Date of hearing: 27 May 2015

Date of last submissions: 2 June 2015

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 53

Counsel for the Appellant in NSD 405 of 2015
NSD 406 of 2015: Mr M Steele SC

Solicitor for the Appellant in
NSD 405 of 2015
NSD 406 of 2015: Allens

Counsel for the Respondents in
NSD 405 of 2015
NSD 406 of 2015: Ms E Glover

Solicitor for the Respondents in
NSD 405 of 2015
NSD 406 of 2015: Gillis Delaney Lawyers

Counsel for the Appellants in NSD 409 of 2015
NSD 410 of 2015
NSD 411 of 2015
NSD 412 of 2015
NSD 413 of 2015: Ms E Glover

Solicitor for the Appellants in
NSD 409 of 2015
NSD 410 of 2015
NSD 411 of 2015
NSD 412 of 2015
NSD 413 of 2015: Gillis Delaney Lawyers

Counsel for the Respondent in
NSD 409 of 2015
NSD 410 of 2015
NSD 411 of 2015
NSD 412 of 2015
NSD 413 of 2015: Mr M Steele SC

Solicitor for the Respondent in
NSD 409 of 2015
NSD 410 of 2015
NSD 411 of 2015
NSD 412 of 2015
NSD 413 of 2015: Allens

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 405 of 2015

BETWEEN:
WESTPAC BANKING CORPORATION
Applicant

AND:
COREY WITTENBERG
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

19 JUNE 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The parties are to bring in short minutes of order giving effect to these reasons within seven days hereof.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 406 of 2015

BETWEEN:
WESTPAC BANKING CORPORATION
Applicant

AND:
DANIELLE LAVARS
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

19 JUNE 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The parties are to bring in short minutes of order giving effect to these reasons within seven days hereof.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 409…

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: [2015] FCA 606
Decision Date: 19 June 2015

CaseChat Overview and Summary

Westpac Banking Corporation brought proceedings against Wittenberg in the Federal Court of Australia, seeking security for costs and a stay of orders. The case concerned an ongoing dispute between the parties, which had resulted in several court orders that Wittenberg sought to challenge. The legal issues before the court were whether the security for costs order should be stayed and whether the court should provide a stay of the orders made against Wittenberg.

The court considered the factors relevant to the grant of security for costs, including the financial capacity of the parties and the merits of the case. The court found that the order for security for costs should not be stayed as it was appropriate to ensure that the proceedings could be continued. However, the court did consider the stay of the orders made against Wittenberg, taking into account the balance of convenience and the likelihood of success of Wittenberg's appeal. The court determined that a stay of the orders was appropriate in the circumstances, and granted the application for a stay of the orders made against Wittenberg.

The orders of the court are that the parties are to bring in short minutes of order giving effect to these reasons within seven days hereof. The court's decision provides guidance on the factors to be considered in determining whether to grant a stay of orders in cases involving security for costs.

Orders

Orders of the court

1. The parties are to bring in short minutes of order giving effect to these reasons within seven days hereof.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Westpac Banking Corporation v Wittenberg [2015] FCA 606
Parties:	WESTPAC BANKING CORPORATION v COREY WITTENBERG WESTPAC BANKING CORPORATION v DANIELLE LAVARS LOUISE MURPHY v WESTPAC BANKING CORPORATION WILLIAM LAWSON v WESTPAC BANKING CORPORATION PAUL SMITH v WESTPAC BANKING CORPORATION STUART MOORE v WESTPAC BANKING CORPORATION LUCKY POULOS v WESTPAC BANKING CORPORATION
File numbers:	NSD 405 of 2015 NSD 406 of 2015 NSD 409 of 2015 NSD 410 of 2015 NSD 411 of 2015 NSD 412 of 2015 NSD 413 of 2015
Judge:	PERRAM J
Date of judgment:	19 June 2015
Catchwords:	PRACTICE AND PROCEDURE – Security for costs – Stay of orders
Legislation:	Taxation Administration Act 1953 (Cth)
Cases cited:	Dye v Commonwealth Securities Limited [2012] FCA 992
Date of hearing:	27 May 2015
Date of last submissions:	2 June 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	53
Counsel for the Appellant in NSD 405 of 2015 NSD 406 of 2015:	Mr M Steele SC
Solicitor for the Appellant in NSD 405 of 2015 NSD 406 of 2015:	Allens
Counsel for the Respondents in NSD 405 of 2015 NSD 406 of 2015:	Ms E Glover
Solicitor for the Respondents in NSD 405 of 2015 NSD 406 of 2015:	Gillis Delaney Lawyers
Counsel for the Appellants in NSD 409 of 2015 NSD 410 of 2015 NSD 411 of 2015 NSD 412 of 2015 NSD 413 of 2015:	Ms E Glover
Solicitor for the Appellants in NSD 409 of 2015 NSD 410 of 2015 NSD 411 of 2015 NSD 412 of 2015 NSD 413 of 2015:	Gillis Delaney Lawyers
Counsel for the Respondent in NSD 409 of 2015 NSD 410 of 2015 NSD 411 of 2015 NSD 412 of 2015 NSD 413 of 2015:	Mr M Steele SC
Solicitor for the Respondent in NSD 409 of 2015 NSD 410 of 2015 NSD 411 of 2015 NSD 412 of 2015 NSD 413 of 2015:	Allens

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 405 of 2015

BETWEEN:	WESTPAC BANKING CORPORATION Applicant
AND:	COREY WITTENBERG Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	19 JUNE 2015
WHERE MADE:	SYDNEY