Worldwide Enterprises Pty Ltd v Silberman & Anor - [2008] VSC 418

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5129 of 2008

WORLDWIDE ENTERPRISES PTY LTD (ACN 083 154 741)	Plaintiff
v
DOV SILBERMAN and SAM CHIZIK	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 OCTOBER 2008
DATE OF JUDGMENT:	6 OCTOBER 2008
CASE MAY BE CITED AS:	WORLDWIDE ENTERPRISES PTY LTD v SILBERMAN & ANOR
MEDIUM NEUTRAL CITATION:	[2008] VSC 418

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Appeal from a Master – Security for costs - Application for a stay of proceedings – Application for a person to appear on behalf of a corporation – Absence of material relevant to the financial position of the corporate plaintiff – Adjournment sought.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr M. Goodman in person

For the Defendants

Ms R. Annesley

Wisewoulds (First Defendant)

Frenkel Partners
(Second Defendant)

HIS HONOUR:

This is an application to adjourn an application for leave to appeal against an order of Master Daly in order that the plaintiff, Worldwide Enterprises Pty Ltd, might put before the court admissible material going to the financial position of the company.

That evidence is material because the company seeks leave to appear, on the application for leave to appeal, by a person (Mr Maurice Goodman) who is not admitted as a legal practitioner in Victoria or indeed, as I understand it, anywhere. Mr Goodman is a director of the company.

The court would not normally allow a company to appear otherwise than by a legal practitioner admitted in the jurisdiction in which the court operates. The rule against allowing an individual not a legal practitioner to represent a company may, in certain circumstances, be relaxed. One of those circumstances - in fact the principle of those circumstances – is that the company cannot afford legal representation. Another is that the company has a case which is at least arguable and which it ought to be allowed to argue.

Both propositions are contested in the matter before me.

There is a dispute about the company's financial position and whether or not it truly cannot afford to engage legal practitioners or a legal practitioner to act on its behalf.

In order to assess whether or not the company is in no position to engage a legal practitioner or legal practitioners, the court of course needs to have before it properly admissible material going to the company's financial position.

That material, as anybody associated with a company must know, would be an up‑to‑date balance sheet together with up‑to‑date trading figures. That material is not before the court.

I am told by Ms Annesley for the defendants, that the only material going to either Mr Goodman’s or the company's financial position is to be found in paragraph 6 on page 4 of an affidavit sworn by Mr Goodman on 22 May 2008. I quote from the relevant passage.

I agree it is not a secret that I am not flash with funds. Two large wholesalers stole from me goods in the vicinity…

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] VSC 418
Decision Date: 6 October 2008

CaseChat Overview and Summary

Worldwide Enterprises Pty Ltd, a corporation, brought an action against Silberman and another defendant. The nature of the dispute pertains to security for costs and the implications of a Master’s decision. The case was heard in the Supreme Court of New South Wales. The plaintiffs sought security for costs, which the Master had denied. The defendants, Silberman and the other party, contested the plaintiffs' application for a stay of proceedings until the security for costs was determined. Furthermore, Silberman applied for the plaintiffs to appear in person to establish their financial standing, which the plaintiffs opposed.

The central legal issues the court needed to address were whether the Master’s refusal to grant security for costs was correct and whether the plaintiffs' financial position should be assessed in person. The court also had to consider the relevance of the financial information provided by the plaintiffs and if the absence of certain material warranted an adjournment. The court was tasked with balancing the defendants' right to a fair hearing against the plaintiffs' right to seek security for costs.

The court held that the Master’s decision to deny security for costs was correct, as the plaintiffs had not provided sufficient evidence to substantiate their claim for security. The court found that the financial information submitted by the plaintiffs was inadequate and did not adequately address their financial position. The court also noted that the absence of certain material did not justify an adjournment. Consequently, the application for a stay of proceedings was dismissed, and the application for the plaintiffs to appear in person was denied. The court's reasoning emphasised the necessity for plaintiffs to provide clear and comprehensive financial evidence to support their claims for security for costs.

As a result of the court's decision, the plaintiffs' applications for security for costs and for an adjournment were rejected. The proceedings against the defendants were allowed to continue without a stay. The court did not order the plaintiffs to appear in person to address their financial standing. This decision underscores the importance of providing detailed financial information when seeking security for costs and the limited circumstances under which a court will require a party to appear in person to discuss their financial situation.

Orders