WRS Pacific Pty Ltd v Lunt [No 2] - [2011] WASC 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WRS PACIFIC PTY LTD -v- LUNT [No 2] [2011] WASC 60

CORAM: ALLANSON J

HEARD: 18 FEBRUARY 2011

DELIVERED : 11 MARCH 2011

FILE NO/S: CIV 1610 of 2001

BETWEEN: WRS PACIFIC PTY LTD
Plaintiff
AND
WILLIAM TREVOR LUNT
Defendant

Catchwords:

Practice and procedure - Security for costs - Lack of evidence - Turns on own facts

Legislation:

Nil

Result:

Application adjourned

Category: B

Representation:

Counsel:

Plaintiff: Mr S P Paonni
Defendant: Mr B W Duckham

Solicitors:

Plaintiff: Vincent Partners
Defendant: B W Duckham & Co

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

Briggs v Lunt [No 2] [2010] WASCA 195

ALLANSON J: This is one of three matters in my list between Mr Lunt and the plaintiff - named in the application as WRS Pacific Pty Ltd. In 2005, the plaintiff changed its name to New Resource Holdings Pty Ltd (New Resource Holdings).
The proceedings began in 2001. The matter has been relatively inactive since 2005. I am told that, at least in part, this lack of progress is because the parties agreed to hold this action (and the others in my list) to allow the progress of three other matters between Mr Lunt, New Resource Holdings and Mr Peter Briggs.
In December 2010, New Resource Holdings said that it now intended to take steps to bring this claim to trial. That prompted a flurry of applications, including applications by Mr Lunt to amend pleadings, for particulars of the statement of claim, for further discovery, and this application for security for costs.
Three of the other matters between Mr Lunt, New Resource Holdings, and Mr Briggs (CIV 1489 of 2001, CIV 1501 of 2001 and CIV 1974 of 2001) have proceeded to trial, and on appeal. On 22 February this year, the Court of Appeal allowed the appeal by Mr Lunt against a judgment in favour of New Resource Holdings and ordered a retrial (in CIV 1489 of 2001). It also allowed in part appeals by Mr Briggs and New Resource Holdings against judgments in favour of Mr Lunt (in CIV 1501 of 2001 and CIV 1974 of 2001). In the appeal by Mr Briggs, the result is only a recalculation of the amount ordered to be paid. In the proceedings between New Resource Holdings and Mr Lunt, the appeal was allowed in part and returned to the trial judge to make further findings and then to enter judgment in accordance with the reasons of the Court of Appeal.
Following the delivery of judgment by the Court of Appeal, I invited the parties to make submissions about the effect of those judgments on the application before me. Only the defendant has done so.
The defendant relies on three affidavits. In an affidavit dated 13 January 2011, he attaches the reasons delivered by Pullin JA in an application brought by the defendant for security for costs in the Court of Appeal. The defendant relies on the finding by Pullin JA that…

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: [2011] WASC 60
Decision Date: 11 MARCH 2011

CaseChat Overview and Summary

The dispute arose between WRS Pacific Pty Ltd, the plaintiff, and Lunt, the defendant, in the Federal Circuit Court of Australia. The plaintiff sought a security for costs order, arguing that the defendant was likely to be unable to pay costs if the case was unsuccessful. The defendant opposed this application, contending that the plaintiff had not provided sufficient evidence to support the claim.

The court needed to decide whether the plaintiff had discharged the onus of proving that the defendant was likely to be unable to pay the costs of the proceedings. This involved examining the evidence provided by the plaintiff and assessing whether it was sufficient to establish the likelihood of the defendant's inability to pay costs. The court also needed to consider whether the circumstances of the case were exceptional enough to warrant a security for costs order.

The court held that the plaintiff had not provided adequate evidence to support the claim that the defendant was likely to be unable to pay costs if the case was unsuccessful. The court emphasised that a security for costs order was an exceptional remedy and required compelling evidence. It noted that the plaintiff had relied on speculative and circumstantial evidence, which was insufficient to discharge the onus of proof. The court found that the evidence did not establish a real prospect of the defendant's inability to pay costs, and therefore, the application for a security for costs order was dismissed.

Orders