TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [No 11] [2016] WASC 152 (19 May 2016)

1. The time for compliance with the springing order made by this Honourable Court on 4 March 2016 be extended from 8 April 2016 to 30 May 2016 with liberty to apply on 48 hours' notice for a further extension of the time for compliance.
2. Alternatively, orders 10, 11 and 12 of the orders of this Honourable Court made 21 November 2014 in respect of Security for Costs be deleted and replaced with the following new orders 10 to 14:

(10) Whilst the Plaintiff's related action against LCM Litigation Management Pty Ltd (LCM) in CIV 1102 of 2016 for payment of security for costs in this action is pending determination at first instance the proceedings shall not be stayed in default of any payment of security by the Plaintiff.

(11) In the event CIV 1102 of 2016 has been determined and LCM is held liable to meet part or all of the security payments previously ordered of the Plaintiff the Plaintiff's liability to meet the security for costs order shall be at an end.

(12) In the event CIV 1102 of 2016 has been determined at first instance and LCM is not held liable to pay any part of the security payments ordered of the Plaintiff the total amount of Security shall be reduced to $60,000 being the amount already paid or such other amount as this Honourable Court deems appropriate.

(13) The defendants have liberty to apply to increase the amount of security in the event that the Plaintiff becomes able to satisfy an increased security payment (whether through litigation funding support or otherwise) and circumstances significantly change so as to render the security ordered inadequate.

(14) Costs of this application be in the cause.

2 So the relief sought via par 1 seeks that time for compliance with springing orders which I made in this action on 4 March 2016 (which are the subject of my reasons in Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68) be extended. The extension of time is sought, in effect, for a period of just over seven weeks, to 30 May 2016.

3 Currently, the springing orders of 4 March 2016 have not been met by the plaintiff (Trafalgar). They will descend and take effect at noon today, unless interrupted by a contrary order of the court. That is the basis upon which I evaluate par 1 of that application to be made.

4 As seen, par 2 of that minute advances an alternate basis for relief. This is upon a basis of varying today the orders 10, 11 and 12 of orders I made back as long as ago as 21 November 2014, in respect of the provision of security for costs by Trafalgar. What is sought would be, in effect, an excision of those 21 November 2014 orders 10, 11, 12, allied to their substitution by the newly proposed orders 10 through 14.

5 The par 2 aspect of the minute was not heavily pressed by pro bono counsel for Trafalgar. In my view, sensibly so. It carries, on my assessment, significant difficulties.

6 There is a stay of this action in operative effect since late 2015, as is explained by my reasons in Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34 (published 9 February 2016) - by reason of the failure of the plaintiff to provide a tranche of security in the amount of $100,000.

7 My orders of 21 November 2014 were issued by consent. They provided that a failure to provide a tranche of security when due would result in the action being stayed. The reasons in Trafalgar v Superior Lawns [No 8] clarified whether or not, as a matter of underlying substantive fact, the process of providing discovery and inspection in the proceedings had effectively come to a close or not. I answered that question in the affirmative. The consequence of my affirmative answer, namely, that those processes were indeed closed, was that the consent orders made on 21 November 2014, as regards a $100,000 tranche of security being due at the close of discovery and inspection, took effect. Trafalgar's ensuing and continued failure to provide $100,000 as security subsequent to that amount becoming due at the end of November 2015 has resulted in the action being stayed. The consequence of my reasons in Trafalgar v Superior Lawns [No 8] is to remove any uncertainty about this action being unequivocally stayed by reason of that default in respect of the $100,000 payment.

8 The question this morning, as a consequence of having heard argument yesterday and having received further evidence, is whether my springing orders of 4 March 2016, which expressly provide on their face that those orders will spring at noon today against Trafalgar unless interrupted by a contrary order of the court, should be now interrupted by such a contrary order?

9 In my view, they should. As I will explain shortly, the orders I made on 4 March 2016 should now be varied by reference to par 1 of the plaintiff's minute to provide in like terms (in effect) to the orders I made on 4 March, save only that time for compliance with the springing orders will now be effectively extended until noon on Monday, 30 May 2016.

10 I assess the par 2 basis of the minute as not a viable basis to proceed. Little time was spent on that alternative approach by counsel yesterday and, in my view, rightly so. This is not the occasion to rewrite history as regards the original making of the orders for security for costs. Those orders are applicable. The effect of the stay, currently in place and uninterrupted, has created a status quo as regards security obligations, that - if it is to be disrupted - should be challenged directly, rather than under a 'back door' attack upon the very making of the orders, which occurred many months ago now.

11 As regards legal principle, I would mention here the High Court decision in Adam P Brown Male Fashions v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 178 (Gibbs CJ, Aickin, Wilson, Brennan JJ); Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [23] - [25] (Steytler P); and Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 [11] - [12] (Ward JA), as well as O 25 r 6 of the Rules of the Supreme Court 1971 (WA). Effectively, I adopt the observations that were endorsed by Edelman J in Duckworth v Water Corporation [2012] WASC 30 [90]. There his Honour, in the context of a stay applicable by reason of s 60(2) of the Bankruptcy Act 1966 (Cth), applied observations of Young J (as he then was) in John v Neiman Holdings (1986) 84 FLR 84. Young J was himself invoking observations going back as far as 1939 made by Bevan J in L Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190, concerning stays of proceedings. Young J had said:

All that is meant by the stay in the current connection is that nobody can take any step in the proceedings, nobody can make any order in the proceedings, but that the parties are not prevented from getting the matter ready to trial, nor is anything undone which has been done (86).

12 I will add to that observation that if I were wrong about any of that, that as of now, on the material before me, I would not, as a matter of discretion, interfere to any degree with the terms of the (consent) orders I issued in relation to the provision of security for costs on 21 November 2014. That is because, in essence, first, those security for costs orders were made by consent at a time when this plaintiff was competently represented by fully independent commercial solicitors, Corrs Chambers, and with highly competent commercial counsel. Those orders were sought and agreed to consequent upon a conferral process. They were implemented, effectively, at the behest of the sophisticatedly represented parties at that time.

13 Second, as inter partes orders, they were, at the time, on my judgment, fully appropriate. I have no doubt that the amount of increased security for costs as ordered under those consent orders, up from $150,000 up to $350,000, was, in the overall scheme of the litigation environment then, modest in the dimensions for what is a complex underlying commercial litigation in the corporate sphere.

14 Insight towards the underlying complexities of this action can be obtained from my reasons in Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280, published 5 August 2015. This is not a Dividing Fences Act dispute. It is difficult, complex and correlatively expensive commercial litigation. There should be no pretence or glossing of its underlying complexities. In the scheme of things, an amount of security of $350,000 in November 2014 looks to me like a proverbial 'drop in the bucket' measured against the ultimate legal costs that will be incurred on one side if this matter were to be fully litigated and run as a contested trial.

15 A third reason in relation to why I would not today interfere with those November 2014 consent orders is that on the evidence now before me the core issue is - in terms of why those orders should now be varied some 17 months after the event - seems to be predicated upon a loss, in October 2015, of the plaintiff's litigation funding via LCM Litigation Management Pty Ltd (LCM). That is a development totally personal to the plaintiff; it has nothing to do with the defendants.

16 A loss of litigation funding is no doubt unfortunate from the plaintiff's perspective. But it simply is a consequence of its private contractual arrangements with that commercial party. It is a commercial consequence only inter partes, as between LCM and the plaintiff. By itself that subsequent development cannot bear upon acquired rights, in this litigation, of the defendants - in terms of having their winning costs exposure position secured, if it was otherwise proper to issue those orders in November 2014, as I assess it was.

17 The fourth reason why I would not interfere with those November 2014 security for costs orders is that the defendants were entitled to order their affairs from such time as these orders for security were made, at 21 November 2014. The defendants were entitled from then to proceed on the basis of making tactical and economic evaluations about their ultimate win or loss exposures in this litigation in a settled context that was then agreed to: should they win, lose or draw as against their opponent.

18 The 21 November 2014 orders were significant as regards a costs risk exposure for the defendants. To attempt to move the financial exposure 'goal posts' 17 months on (as more costs in the continuing litigation battles have been incurred) in terms of the available security for the defendants in April 2016 seems to me to be both unprincipled and unfair to the defendants. The LCM developments which have led to this have nothing to do with the defendants.

19 That, effectively, deals with and removes any basis that might have been softly advanced under the amended minute of par 2 towards seeking a variation of the underlying security orders of 21 November 2014.

20 The orders that I issued on 4 March 2016 by way of, in effect, springing orders, for the reasons articulated under the Trafalgar v Superior Lawns [No 9] reasons, remain as only interlocutory orders. They are orders issued in the context of the circumstances prevailing at that time and the evidence then put before the court. And there is now further evidence before the court. What has changed, therefore, between 4 March 2016 and now, 8 April 2016? A number of things. First of all, the period of time I foreshadowed for possible dialogue with Mr Coope in those Trafalgar v Superior Lawns [No 9] reasons, by reason of Mr Coope being effectively prohibited on his undertaking from communicating with Mr Jebb about potentially supporting Mr Jebb through new litigation funding arrangements with Vannin Capital (Mr Coope's new organisation) has now run. Mr Jebb has put before me, by his first affidavit of 5 April 2016, more materials relating to his subsequent unproductive discussions with Mr Coope and where those matters sit.

21 In issuing the orders of 4 March 2016, I had allowed a period (through to 8 April 2016) that seemed to me then to be more than sufficient if it eventuated that an alternate (ie, other than LCM) litigation funder of which Mr Coope had become the effective managing director had manifested some enthusiasm and a willingness to take up a position of becoming a substitute litigation funder for Trafalgar - and then, given Mr Coope's extensive knowledge over time (ie, while he was with LCM) of the matter (at least as a viable funding risk), and once the noncontact constraints that had bound Mr Coope became lifted - there subsequently emerged an indication of some enthusiasm and a willingness for Mr Coope's new litigation funding organisation to become a substitute funder for Trafalgar and, to that end, for material to be put before the court showing that replacement litigation funding opportunity.

22 Such material has not been put before me. What I have only seen since, effectively, through Mr Jebb's affidavit annexing of two emails (to the first Jebb affidavit of 5 April 2016) indicates only that further issues have arisen by reason of, putting it mildly perhaps, the unhappy parting relationship as between LCM and the now departed Mr Coope - indicating Mr Coope holds his concerns expressed to Mr Jebb about Vannin Capital, his new litigation funder, perhaps exposing itself to unwanted future difficulties with Mr Coope's former employer, LCM, if Vannin Capital were to become involved as a substitute litigation funder to Trafalgar. This is not promising for Trafalgar.

23 Mr Jebb's affidavit attaches an email which has a line in it from Mr Coope indicating his ostensible support for Mr Jebb and this action. There is also a subsequent email from Mr Coope indicating that if LCM, effectively, indicated that they were willing for Mr Coope's new litigation funding organisation, Vannin Capital, to become involved to fund Trafalgar and they would not raise confidentiality of information concerns, then things might be different. I am here referring to the emails of 5 April 2016 from Mr Coope to Mr Jebb, which are annexures PGJ9 and PGJ10 to Mr Jebb's first affidavit of 5 April 2016.

24 Mr Jebb's affidavit then culminates, at par 8, following his receipt of Mr Coope's second email:

I had a brief discussion with Rachael King from Corrs who confirmed their firm had made the request of LCM and were awaiting LCM's response.

25 As the arguments proceeded before me yesterday, nothing really has been indicated in terms of any LCM forthcoming response to that request, indicating any likely forthcoming release to Mr Coope from LCM from his confidentiality obligations to meet his satisfaction requirement as expressed to Mr Jebb in PGJ10. In short, I can assess no optimism as to a provision of substitute litigation funding via Mr Coope and Vannin Capital for Mr Jebb and Trafalgar relevant to any decision that I need to make today.

26 I did allow, as I indicated, the period to 8 April 2016 for the constraints that bound Mr Coope vis-à-vis LCM to end at the end of March 2016, to allow Mr Coope to have an unfettered dialogue with Mr Jebb about alternate litigation funding. That dialogue has happened. But it has not, on my assessment, been productive for Trafalgar. That could change, of course. But at the moment I do not assess there being on the horizon any sort of indication of a likely substitution of a litigation funder or funding.

27 One other matter, however, that has changed in the interim between 4 March 2016 and now is the information that I now hold about a progression of other litigation in this court - which I am not case managing - concerning the action brought as between Trafalgar and LCM, CIV 1102 of 2016. That action concerns whether the underlying litigation funding agreement between LCM and Trafalgar has been breached by way of its non-performance by LCM: see my reasons in Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 10] [2016] WASC 111, delivered 5 April 2016.

28 Further information that now emerges is that there is listed for hearing on 5 May 2016, before Beech J, effectively, Trafalgar's application against LCM for the declaratory relief sought in those originating summons proceedings - to the effect that LCM is in breach of the terms of the LCM litigation funding agreement. That written agreement has been produced and put before me by Mr Jebb by his second affidavit of 5 April 2016. Questions of interpretation arise between Trafalgar and LCM, particularly as regards cl 29 of that agreement (which is annexure PGJ12 to Mr Jebb's second 5 April 2016 affidavit displaying the litigation funding agreement between Trafalgar and LCM Litigation Management Pty Ltd of 14 November 2013). The terms of cl 29 provide some basis for an argument to the effect that LCM had fallen under an obligation to meet the $100,000 payment on behalf of Trafalgar. That arose prior to the future performance of that funding agreement being ended, the circumstances about which I am told nothing more about other than that the agreement ended in October 2015.

If the funder advises the litigant that it would ensure that the order for security for costs is satisfied, the funder must ensure such satisfaction on the terms and within the period specified in the order for security for costs.

30 Clause 29(3), read with cl 19.1.4 in the same funding agreement, together provide some basis for the argument of Trafalgar that LCM had contractually committed to advance the $100,000 tranche of funds due at the end of the discovery and inspection process, prior to a termination of the future performance of the funding agreement in October 2015. Although that result has been at times called a matter of the pure interpretation of the agreement, it seems to me that such a result would be rather more. That outcome would really turn upon, if cl 29 is accepted as the effective clause dealing with security for costs arrangements, the issue of what contractual commitments were perfected by way of the communications passing as between Trafalgar and LCM - for a purpose of creating a commitment in LCM to provide litigation funding, that commitment having been incurred in a sense of having fully vested as an obligation prior to when the performance of the funding agreement was ended during October 2015.

31 I am not presently viewing these issues from a perspective of evaluating their merits or demerits. That will be a matter for Beech J on 5 May 2016. Rather, I assess them from a perspective of Trafalgar's application to vary and, effectively, to interrupt the springing order that will otherwise take effect at noon today. I am being asked, in effect, now to allow an opportunity for Trafalgar to pursue those arguments against LCM before his Honour, plus the allowing of a reasonable period of time afterwards. This is put by Trafalgar from an overall perspective of leading to a position of it generating from LCM relatively swiftly the $100,000 needed in order for Trafalgar to meet this required tranche of security for costs, which is why this action is now stayed.

32 Of course, I express no views in terms of whether an extra seven weeks, which, in effect, is sought by Trafalgar in order for all that to unfold, will ever be productive of the $100,000. Of course, the action by Trafalgar against LCM is an originating summons presently seeking only declaratory relief.

33 Pro bono counsel for Trafalgar yesterday indicated, though he said he was not briefed in that matter, that there was potential for an amendment to be made in that action to seek a more affirmative payment outcome, in the event of the determining of the underlying construction issues going in the way that Trafalgar contends under its originating summons - namely, that LCM is committed to pay and should be ordered to pay. That all remains to be seen.

34 Hence, I have now satisfied myself, on materials put before me, beyond what I had received as at 4 March 2016, that there looms an event on 5 May 2016 that needs to be attended by Trafalgar and which might possibly generate $100,000 for Trafalgar from its former litigation funder, LCM. That is in circumstances where I can see no other financial light on the horizon for Trafalgar as regards meeting the $100,000 security payment that is due.

35 I should say, for completeness, that I presently assess Trafalgar's position, essentially, to be borderline insolvent. Likewise, Mr Jebb has frankly told the court about his personal liability to the Australian Tax Office, in respect of an unpaid assessment against him personally, in the order of $150,000. He has not said so explicitly, but my inference, reading his affidavit, is that he does not have the means to meet the tax assessment.

36 The relief by way of extension to the descent of the springing orders was objected to by the defendants. In that process, the affidavit of Kingsley Craig Flugge, sworn 6 April 2016, was put before me. Mr Flugge, for himself and on behalf of the other defendants, tells me about the frustrations, in effect, of having this litigation go on now for just on five years, since 2011. He relates the stress and the difficulties that this has caused. I do not deprecate his expressed concerns. I respect them. The decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 is well known to all practitioners in this court. It explains that courts nowadays will take account of the stress, beyond pure financial stresses, caused to defendants by ongoing litigation that is unnecessarily drawn out.

37 Nevertheless, as pro bono counsel, I think, correctly focused upon yesterday, today's issue is really not over an anterior period of five years' delay and frustration. Today I am assessing instead the effects of a period of delay of a further seven weeks, which I must assess in terms of the overall justice of interrupting springing orders that would otherwise end for all time Trafalgar's 2011 action at noon today.

38 To that extent, what I weigh is, in effect, a large capital investment of, in effect, time, money, energy and hope that has been outlaid to date. I do so in the context of the assessments which I have expressed in the past about the merits or demerits of Trafalgar's action longer term against these defendants. Trafalgar's case, in short, is not in the unarguable category.

39 But this is not by any means an easy action to run to a trial. It is a complex, multi-faceted statutory oppression action which, essentially, distils to the 30% shareholding Trafalgar held in 2011 in Superior Lawns Australia Pty Ltd and issues as to the correct discretionary relief if Trafalgar can make good its arguments. None of that presents as easy to resolve.

40 I want to add an observation upon Mr Flugge's affidavit, in terms of his assertions about his loss of faith in the legal system and the defendants' lack of an opportunity to effectively be heard to answer criticisms. First, this is not a criminal action, but a civil commercial litigation. Second, although this litigation has been on foot for five years, to some extent the defendants must accept the consequences that flow from their decision to fight this litigation and to defend tooth and nail to this point. Civil litigation is sophisticated and regulated modern battle. All battles carry with them emotional stresses.

41 Weighing the overall position then, whilst I am somewhat sceptical as to prospects of a further seven weeks' hiatus producing any positive outcome in the end in terms of generating money for Trafalgar in order to meet the $100,000 security for costs payment currently in default and to, thereby, lift the present stay of this action, the evidence now before me about a determination of the dispute with LCM is tangible. It is on the horizon for May 2016, and it is progressing.

42 The factual position is different to what I was told (which was practically nothing) about all that, at 4 March 2016.

43 Of course, there is also a prospect on the horizon for whoever loses, if there is a fully progressed outcome after the hearing before Beech J, to appeal and for new matters to intrude which might lead to further applications to extend the terms of the present springing order. All I say about that is that such events will simply be determined on their merits upon the prevailing facts as they present to me at any relevant time, as in all interlocutory applications.

44 I am cognisant, however, that the extension to the present springing order to noon on Monday, 30 May 2016, the variation that I will issue today, does create a scenario whereby if the springing order is not satisfied by noon on 30 May 2016 there will then have been a sixmonth stay of the action, effectively, since 27 November 2015: see Trafalgar v Superior Lawns [No 8].

45 Such a lack of progress in an action that has been going for five years, over a period of six months, will present as a delay of almost Olympian proportions. The stresses and concerns as are identified in Mr Flugge's affidavit as time passes only become more pronounced in terms of their repercussions. A sixmonth period for this action being stayed would present to me then as being compelling in terms of a need for things to be resolved one way or another at that point.

46 I note that in the decision of McKerracher J in Capital Webworks Pty Ltd v Adultshop.Com Ltd [2008] FCA 423) (which I referred to in Trafalgar v Superior Lawns [No 9]), the delay there involved a lesser period of months, though I also note the particular circumstances of that case. I would be extremely concerned as case manager of this litigation if matters were to drag on beyond a six month period of inactivity. That is all I say in that context, save for the fact that there would seem to be a need for another interlocutory assessment at that time. The issues which troubled me on 4 March 2016 and which trouble me today in terms of more delays being suffered would be intensified in seven weeks' time if the stay is still in place and still delaying the progression of this litigation.