HP Mercantile Pty Ltd v Plevey

Judgment 1THE COURT: The applicant (HPM) seeks leave to appeal from orders made by Sackar J on 8 May 2014 that it provide security for the costs of the respondents (Mr & Mrs Plevey, Mr Kubicki in his personal capacity and as executor of his deceased wife's estate, and Mr Venables) as defendants in separate proceedings brought against them by HPM and in proceedings against HPM brought by each of them by way of defence to its claims. For convenience we refer to each set of parties as a respondent, and to them collectively as the respondents. The amount of security ordered to be provided was $100,000 in all and $33,333.34 for each respondent. 2Those orders for security were made in the following circumstances. In 2012, HPM brought proceedings in the District Court against the respondents to recover loans made to them by Tumut River Orchard Management Limited (TROM). It did so as assignee of those loans. In 2013, each of the respondents commenced separate proceedings in the Supreme Court against HPM and TROM seeking to set aside those loan agreements on equitable grounds and by relief sought under the Trade Practices Act 1974 (Cth). In June and September 2013, orders were made removing the proceedings commenced by HPM into the Supreme Court. Since that time, in the case of each of the respondents, the 2012 proceedings (commenced by HPM) and the 2013 proceedings (commenced by the respondents) have been case managed in the Commercial List on the basis that each set of proceedings would be heard together and with the other sets of proceedings. No order has been made for the consolidation of each set of proceedings. 3In the 2012 proceedings, each respondent filed an application for security for costs. Those applications were expressed to be made under r 42.21 of the Uniform Civil Procedure Rules 2005 and under s 1335(1) of the Corporations Act 2001 (Cth). Thus the security was sought in respect of the "defendant's costs of the proceedings" (UCPR, r 42.21(1)) and the "costs of the defendant if successful in his, her or its defence" (s 1335(1)). 4Those applications were heard by Sackar J on 2 May 2014. At the conclusion of the oral argument, his Honour stated that he proposed to order security of $100,000 be provided for the costs of the three sets of proceedings; that being an estimate of the respondents' costs of preparation of those proceedings up to the date of commencement of the hearing. Having communicated that conclusion to the parties, the primary judge then requested that they prepare short minutes recording the orders to be made. Sackar J did not give any reasons for the making of those proposed orders. Nor was his Honour asked to do so, notwithstanding that it was plain by the end the argument and after his decision had been announced that he did not propose to give reasons unless requested to do so. 5On 8 May 2014, orders were made in each of the 2012 proceedings. Those orders were in the same form for each proceeding and expressed to be by consent. The orders made in the proceedings involving Mr and Mrs Plevey included the following: "2. HP Mercantile Pty Ltd provide $33,333.34 as security for the defendants' costs in proceedings 2012/203945 (Plevey) and the plaintiffs' costs in proceedings 2013/256939 (Plevey) as follows: a. the sum of $16,666.67 provided on or before 16 May 2014; and b. the further sum of $16,666.67 provided on or before 13 June 2014, by, at its option, payment of such sum into Court or by provision to the Court of an alternative security in a form that is acceptable to the Registrar." 6HPM seeks leave to appeal from the order for security made in each of the 2012 proceedings. It does so on three grounds whilst at the same time asserting by its summary of argument that it does not "challenge the exercise of discretion by the trial judge to order security for costs". None of those grounds includes that the primary judge did not give any or adequate reasons for the orders made. 7Those proposed grounds are: first, that the primary judge erred in ordering security for costs in the 2013 proceedings because the power to make an order in relation to the costs of those proceedings did not arise under r 42.21(1)(d) or s 1335(1) as it is not a plaintiff in those proceedings; secondly, that in relation to the order for provision of security for costs of the 2012 proceedings, the primary judge "could not have properly been satisfied" that HPM would be unable to pay those costs because in the evidence and argument before the primary judge no distinction was drawn between them and the costs of the 2013 proceedings; and thirdly, that the primary judge erred in assessing the quantum of security to be provided without taking into account that security could not be ordered for the costs of the 2013 proceedings. 8The first argument which the applicant seeks to make is that the Court did not have power to make an order for security in relation to the costs of the 2013 proceedings for reason that HPM is not the plaintiff or moving party in those proceedings. That argument proceeds on the basis that the orders for security were made in the 2013 proceedings. They were not. The orders for security were made in the 2012 proceedings and no question can arise as to the primary judge's power to make an order for security for costs in those proceedings in favour of each of the respondents. That power arose under r 42.21(1)(d), s 1335(1) and under the inherent jurisdiction of the Court: as to the latter, see Rajski v Computer Manufacture & Design Pty Ltd [1983] 2 NSWLR 122. 9The question which would then arise is whether any of the costs of the 2013 proceedings for which the primary judge ordered security were within the description "defendant's costs of the proceedings" in r 42.21(1) or "costs of the defendant if successful in his, her or its defence" within s 1335(1) or otherwise the subject of the Court's inherent jurisdiction to grant security in circumstances where there is reason to believe that the plaintiff will be unable to pay such costs. That question does not appear to have been expressly addressed in any argument put to the primary judge. 10In relation to the costs of the 2013 proceedings, the respondents argue that although they have been or will be incurred in relation to a claim brought by them, that claim is made solely by way of defence to HPM's claim as assignee of the loans. In its written submissions to this Court, HPM conceded that the claims made in the 2013 proceedings were "defensive in that the only relief sought is rescission, declarations of right, injunction and orders having the effect" of resolving the 2012 proceedings in favour of the respondents. It also acknowledged that the amended defences of the respondents in the 2012 proceedings incorporated and rely on the claims made in the 2013 proceedings. 11The position for which the respondents contend was referred to by Bramwell LJ in Winterfield v Bradnum (1878) 3 QBD 324 in a passage cited with approval by Macfarlan J in Demag-Lauchhammer Maschinenbau und Stahlbau GmbH v John Holland (Constructions) Pty Ltd [1966] 2 NSWR 3 at 7. In Winterfield, the defendant had brought a counter claim against a plaintiff foreigner residing abroad. Having admitted that plaintiff's claim, the defendant sought an order for the provision of security for its costs of the counter claim. Whilst agreeing that the appeal from the refusal of security should be dismissed, Bramwell LJ said at 325: "I do not say that in no case security is to be given where the defendant sets up a counter-claim and the plaintiff is a foreigner residing abroad. ... Suppose an action in which the plaintiff sues for the price of ten parcels of goods, one of which has been delivered, and the defendant says that he admits he is liable for the price of one, but alleges that all the ten parcels are inferior to contract and that he has a counter-claim for damages; why should not the defendant in such a case as this have security for costs? Again, suppose counter-claim for exactly the same amount, I see no reason why he should not have security for costs. Moreover, in some cases the defendant may be entitled to security on the ground of the plaintiff being a foreigner residing abroad, although the defendant's real defence consists in his counter-claim..." 12The argument put to the primary judge on behalf of HPM was confined to that sought to be made by the second and third of the proposed grounds of appeal. In relation to those arguments, this Court does not have the benefit of any reasons addressing the issues to which they give rise. Those issues include whether HPM was unable to pay the costs of the 2012 proceedings, considered separately, and as to what part of $33,333.34 was provided as security for those costs. The primary judge would have had to deal with those issues in reasons if he had been asked to provide them. 13At this point, the following observations are relevant. First, if the claims made in the 2013 proceedings were brought by way of cross claim in the 2012 proceedings, the costs of the former would likely be within the description "defendant's costs of the proceedings" in r 42.21(1) and accordingly could be the subject of an order for security. The costs of those claims would also be likely to answer that description if an order were to be made under r 28.5 that the 2012 and 2013 proceedings be consolidated. Secondly, it is arguable that the incorporation of the claims made in the 2013 proceedings by way of express defence to the 2012 proceedings has the consequence that the costs of prosecuting those claims, albeit in separate proceedings, are within the description "defendant's costs" of the 2012 proceedings. 14Thirdly, the language of s 1335(1) which refers to the "costs of the defendant if successful in his or her or its defence" is sufficiently broad to include costs incurred by a defendant in making a claim in separate proceedings solely by way of defence to the claim to which it is defendant. On that basis it is arguable that the Court had power to make an order for security in the 2012 proceedings which extended to the costs of the 2013 proceedings. A similar argument was considered by McDougall J in ABB Service Pty Ltd v Pyrmont Light Rail Co Ltd [2006] NSWSC 187; 57 ACSR 122. Fourthly, the scope of the Court's inherent jurisdiction to make an order for security for costs is not likely to be constrained by the fact that the relevant costs are incurred in prosecuting a claim brought in separate proceedings but in defence to the plaintiff's claim, rather than in the proceedings in which that claim is made. 15Finally, because these arguments were not developed before the primary judge and he was not required to give any reasons for the orders made, it was not necessary to identify that part of the costs for which security was ordered which related to the 2012 as distinct from the 2013 proceedings. Nor was it necessary for the primary judge separately to consider whether there was reason to believe that HPM would be unable to pay that part of the costs for which security was given which relates to the 2012 proceedings. However, what is reasonably plain is that the respondents were entitled to an order for security for their costs incurred or to be incurred in defending the 2012 proceedings. 16Whilst the argument the applicant seeks to make on appeal raises questions as to the construction of r 42.21(1) and s 1335(1), the present case is not an appropriate vehicle in which to consider those questions in circumstances where they were not fully debated before the primary judge and are not the subject of any reasons for judgment. The interests of justice do not require a different outcome because it is strongly arguable that the Court had power to make the orders made and, even clearer, that it would have power to do so following the making of an order for the consolidation of the relevant proceedings. Furthermore, the applicant's argument accepts that the primary judge had power to order that security be provided for the costs of the 2012 proceedings, so that the amount ultimately in issue in any appeal, in relation to each respondent, is significantly less than the amount of security ordered. 17For these reasons, at the conclusion of the argument on 30 October 2013 the Court ordered that HPM's applications for leave to appeal should be dismissed with costs. Those costs may be assessed and the order that they be paid enforced, forthwith.