TAN -v- LIM [No 2] [2025] WASC 115 (11 April 2025)

(a) the prima facie merits of the claim;

(b) what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff;

(c) whether the normal processes of the court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff.

1. The nature of the Supreme Court's jurisdiction to order security for costs did not appear to be in issue in this application. The principles were recently summarised by Solomon J in Reynolds v Sharaz,[1] who referred to the summary of the law given by Kenneth Martin J in Moran v Schwartz Publishing Pty Ltd [No 2].[2] I respectfully agree with what has been said in those decisions and do not propose to repeat what was said there.
2. It is relevant to note that the plaintiff in these proceedings is a natural person and not a corporation. As Solomon J observed in Reynolds v Sharaz[3] some factor, in addition to inability to pay, is generally required to attract the court's discretionary power to award security for costs against a natural person.

1. The defendants relied upon four affidavits in support of their application. Two of those affidavits were filed after the plaintiff filed her affidavit responding to the application.
2. The defendants' application was initially supported by an affidavit sworn by Mr Nihal Singh Dev, one of the defendants' solicitors, sworn on 7 October 2024.
3. The plaintiff swore an affidavit in opposition to the application on 7 November 2024.
4. The defendants then swore two further affidavits sworn by:

(a) Mr Jeffrey Yih Peir Hing on 2 January 2025; and

(b) the first defendant, Mr Tiong Soon Lim on 3 February 2025.

1. The defendants also relied on an affidavit sworn by Mr Lim earlier in the proceedings, on 27 June 2024.
2. Before turning to consider the various matters relied upon by the defendants in support of their application for security, it is relevant to note that each of the principal factual matters they relied upon were disputed by the plaintiff in her affidavit, or are plainly contested given the nature of the plaintiff's claim.

Whether the defendants have established that the plaintiff is ordinarily resident outside of the jurisdiction

1. When someone will be ordinarily resident outside Australia was considered by Weinberg J in Logue v Hansen Technologies Ltd.[4] After reviewing a number of cases, Weinberg J observed that:[5]

What these cases, and others like them seem to establish is that the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose.

1. Weinberg J also contrasted the concept of domicile to the concept of ordinary residency and observed that unlike a domicile, a person could be ordinarily resident in more than one place.[6]
2. In paragraph 7 of Mr Dev's affidavit, he deposes to the fact that the plaintiff is a Singaporean citizen.
3. In response, the plaintiff says she is resident within the jurisdiction. She says that she is a permanent resident of Australia and her family emigrated to Perth in 2008. She says that she currently works as a childcare worker and has worked at a childcare centre in Willetton since 2023. She has attached to her affidavit various certificates, payslips and an Australian Tax Office statement relating to her employment, dating from 2023 to 2024.
4. The defendants assert that the plaintiff's affidavit only addresses her work and education in Australia from late 2023 but does not demonstrate any residence in Australia prior to that time. As I have mentioned, they have also filed Mr Hing's and Mr Lim's affidavits in reply.
5. With regard to Mr Hing's affidavit, in paragraph 7 he says that in January 2020, the plaintiff and her husband lived in Singapore. In paragraph 16 he says that he knows that the plaintiff's husband moved to Perth in 2020 but he says that the plaintiff and her children remained in Singapore at that time. He does not explain how or why he knows this. It is merely asserted.
6. Turning next to Mr Lim's affidavit. In paragraph 6 of Mr Lim's affidavit, he refers to four documents dated between 2010 and 2021 that were attachments to the affidavit that Mr Lim affirmed on 27 June 2024.
7. The first document is attachment "TSL1" to Mr Lim's 27 June affidavit. It is a search of the records of the Singapore Ministry of Law Insolvency Office performed on 29 May 2024 which shows that the plaintiff's husband was an undischarged bankrupt who had a trustee in bankruptcy in Singapore.
8. The second is Attachment "TSL2" to Mr Lim's 27 June affidavit. These are copies of WhatsApp messages. Mr Lim says that these messages reference trips to Australia and cash and cheques being handed over in Singapore.
9. The third document is attachment "TSL4" to Mr Lim's 27 June affidavit. It is a document that gives a residential address for the plaintiff in Singapore on 19 February 2020.
10. The fourth document is attachment "TSL7" to Mr Lim's 27 June affidavit. It is a document that Mr Lim says records the plaintiff's address as being in Singapore on 26 October 2010.
11. In paragraphs 7 and 8 of Mr Lim's affidavit, he refers to discussions that he has had with the plaintiff's husband in Singapore in 2019.
12. In paragraphs 16 and 18 of Mr Lim's affidavit, he refers to payments he made to the plaintiff.
13. I am not satisfied that the evidence establishes that the plaintiff is ordinarily resident outside of the jurisdiction.
14. The plaintiff has given sworn evidence that she is not ordinarily resident outside the jurisdiction. That she is presently resident in the jurisdiction is corroborated by the certificates, payslips and tax records attached to her affidavit.
15. The evidence that the defendants rely upon to contradict the plaintiff's evidence is weak. Some of that evidence appears to be little more than assertion. Mr Hing does not depose to how or why he knows the matters that he has deposed to. I do not attach much weight to such bald assertions.
16. While Mr Lim refers to documents, it is not apparent to me that these establish that the plaintiff is ordinarily resident in Singapore, yet alone her state of mind. Even if she has given a residential address in Singapore, that does not establish that she is ordinarily resident there.
17. Even if it is accepted the defendants evidence conflicts with the plaintiff's evidence, it is not normally appropriate to resolve conflicts of evidence on affidavit on an interlocutory basis. Nor is this a case in which it seems to me that the plaintiff's evidence is sufficiently inconsistent with the documentary evidence relied upon by the defendants that I am not prepared to give it weight.

1. In these proceedings, the plaintiff seeks declaratory relief regarding the beneficial ownership of the shares in the fourth, fifth and sixth defendants.
2. The plaintiff claims that she was formerly the beneficial owner of all of those shares and in 2020 she agreed to sell them to the first and second defendants pursuant to two separate agreements, for a total consideration of $275,619. The plaintiff alleges that despite not paying the money due, the first and second defendants have been registered as the owners of the shares and they have transferred 51 shares in the sixth defendant, to the third defendant.
3. The plaintiff seeks declarations that the various share transfers that have occurred are void and that she remains the beneficial owner of the shares.
4. The defendants rely on affidavit evidence given by Mr Lim and Mr Hing that the shares were transferred as part of repaying loans made to the plaintiff's husband. They submit that the evidence that they have adduced establishes that these loans existed and that the plaintiff's husband acknowledged his liability for their repayment.
5. The defendants also rely on an offer made by the plaintiff's husband to repurchase the shares which they assert constitutes an acknowledgement that the share transfers were valid.
6. In the plaintiff's affidavit, the plaintiff describes the suggestion that the shares were transferred as repayment for a loan as 'fictitious'. She says that she does not owe Mr Lim any money.
7. The defendants contend that the 'strength' of their documentary evidence and the alleged failure on the part of the plaintiff to provide substantiating material supporting her case demonstrates that the plaintiff's claim is weak.
8. I am not satisfied that the defendants have established that the plaintiff's claim is weak.
9. While the documentary evidence relied upon by the defendants provides some support for their case, I do not consider that evidence to be so strong or conclusive that the plaintiff's evidence can be disregarded. On the material currently before me, it seems likely that key issues at trial will turn upon the word of the plaintiff against the word of Mr Lim and Mr Hing. As I have already mentioned, it is not normally appropriate to resolve conflicts of evidence on affidavit on an interlocutory basis.
10. I do not attach much significance to the alleged failure on the part of the plaintiff to provide 'substantiating material' to support her case given that the plaintiff's case seems to be that the agreements she relies upon were oral.

Whether the defendants have established that the plaintiff is a nominal plaintiff

1. The defendants assert that the plaintiff is only a nominal plaintiff. They submit, relying on the decision of Perry v Jackson,[7] that security must be ordered where the plaintiff to an action sues for the benefit of another and is no more than a nominal plaintiff. In that case Ashley J observed:[8]

...In the case of the plaintiffs who are natural persons, "The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity": Cowell v Taylor [1885] UKLawRpCh 237; (1885) 31 Ch. D 34 at 38 per Bowen L.J. The general rule was subject to exception in the case of so-called "nominal" plaintiffs. The exception was explained by Baggallay L.J. in Cowell as follows at 38: "Suppose I, having a shadowy case, assign it over to a man of straw that he may sue for my benefit, then security for costs will be ordered." Bowen L.J. described the exception thus at 38:

"There is also an exception introduced in order to prevent abuse, that if an insolvent sues as nominal plaintiff for the benefit of somebody else, he must give security. In that case the nominal plaintiff is a mere shadow. The two most familiar classes of cases of this kind are cases where a person has divested himself of his interest and handed it over to some one else that the transferee may sue for him, and cases where a person who has commenced a suit divests himself of his interest during the course of the suit in order that another person may carry it on for his benefit. Those are the common cases, I do not say that there may not be others. In those cases Courts of Common Law required security for costs to be given. "

The key to the exception was the prevention of abuse. Executors, administrators, trustees having no interest in the subject matter of the trust, trustees in bankruptcy and at least some liquidators were not required to give security even if impecunious: Sykes v Sykes [1869] UKLawRpCP 45; (1869) L.R. 4 CP 645 Rainbow v Kittoe [1916] 1 Ch. 313 White v Butt [1908] UKLawRpKQB 142; [1909] 1 KB 50; Cowell; Mackie v Clough [1891] VicLawRp 46; (1891) 17 VLR 201. Such persons, though suing for the benefit of others, were not mere nominal plaintiffs. They sued in what might be called a representative capacity. No abuse was involved.

(emphasis added)

1. The defendants assert that it is the plaintiff's husband who is the true plaintiff in the action and the plaintiff is merely acting on his behalf. They rely upon the same evidence given by Mr Lim that the shares were transferred to repay loans given to the plaintiff's husband that I have already discussed. They also rely on paragraph 10 of Mr Lim's affidavit sworn 3 February 2025 where he deposes to the fact that:

[The plaintiff's husband] informed me he had transferred ownership of properties and shares to the [p]laintiff to hold in trust for him as a strategy to shield assets from creditors in case of his bankruptcy.

1. I am not satisfied that the defendants have established that this is a case in which the principle in Perry v Jackson applies.
2. As I have already indicated, Mr Lim's assertions that the shares were transferred to repay loans is disputed and it is not appropriate for me to resolve that conflict of evidence at an interlocutory stage, on the basis of affidavit evidence.
3. The affidavit that Mr Lim swore on 3 February 2025 was filed after the plaintiff filed her affidavit. Her affidavit does not respond to the allegations made in Mr Lim's affidavit (and she did not file any further affidavit). It is plain though that the allegation that she is not the beneficial owner of the shares is disputed because the relief sought in these proceedings includes declaratory relief that she is the beneficial owner of the shares.
4. Further, the weight to be accorded to Mr Lim's evidence that the plaintiff's husband transferred his property to the plaintiff might be doubted. It is hearsay and is unsupported by evidence that he did in fact transfer any assets as claimed, or that he did so for the alleged purpose. For example, I have not been referred to any evidence that the plaintiff was ever the legal owner of any real property that her husband transferred to her.
5. In any event, even if Mr Lim's evidence is accepted it would mean that the plaintiff was a trustee and is still the proper plaintiff in these proceedings. In Perry v Jackson, Ashley J made it plain that an exception to the rule he was referring to was where someone was suing as a trustee.
6. I attach no weight to the submission that the plaintiff's earnings mean that her husband must be financing the litigation. There is no evidence before me that the plaintiff's husband's financial position is superior to that of the plaintiff. Indeed, there was recent evidence that he was an undischarged bankrupt.

1. In paragraph 7 of his affidavit, Mr Dev deposes to the fact that he has searched the land titles registry and there is no real property registered in the plaintiff's name in Western Australia.
2. The plaintiff maintains that she has a beneficial interest in various properties in Western Australia. She has also given evidence that she earns a regular salary from employment.

1. On the basis of the evidence presented to me, I am not satisfied that the plaintiff is ordinarily resident outside the jurisdiction, that she is only a nominal plaintiff, or that her claim is weak. She has given sworn evidence that she has a beneficial interest in some property in the jurisdiction and earns a regular salary from employment.
2. I am not satisfied that it would be appropriate for me to order security for costs in these circumstances.
3. The parties made other submissions about whether the grant of security would stifle the plaintiff's claim but given the conclusion I have reached, it is not necessary for me to consider those submissions.
4. I will hear from the parties on the question of the costs of this application.
5. Finally, I note that these proceedings have been characterised by a high degree of interlocutory dispute. The defendants have filed three different interlocutory applications since the proceedings were commenced on 27 May 2024 and are still yet to file a defence.
6. This matter would benefit from entry onto the Commercial Managed Cases list and I have asked that this matter be entered onto my list so that I may continue to manage the matter, given my familiarity with the background.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Reynolds v Sharaz [2023] WASC 327 [15] - [30] (Sharaz).

[2] Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35.

[4] Logue v Hansen Technologies Ltd [2003] FCA 81 (2003); 125 FCR 590 (Logue).

[7] Perry v Jackson [1998] VSC 143; [1998] 4 VR 463 (Perry v Jackson).