TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [No 8] [2016] WASC 34 (9 February 2016)

1. By reason of the plaintiff breaching order 8 of the orders made on 21 November 2014 by failing to pay the second tranche of security in the amount of $100,000 by 27 November 2015 (being seven days from the date that the defendants completed inspection of the defendants' discovery set out in their affidavits of discovery filed and served on 9 November 2015) the following orders be made.
2. If by 15 January 2016 the plaintiff fails to pay the amount in the second tranche of security in the amount of $100,000 pursuant to order 8 of the orders made on 21 November 2014, these proceedings be dismissed on the basis that the plaintiff pay the defendants' costs of the proceedings to be taxed if not agreed.
3. Order 8 above is without prejudice to the defendants' right to make an application for special costs or indemnity costs orders.

3 The further issues arising out of the defendants' amended minute to be dealt with discretely from this application relate to:

(a) the defendants' application to compel the plaintiff to produce for their inspection, documents concerning the plaintiff's litigation funding agreement with LCM Litigation Fund Pty Ltd and, as well, the plantiff's retainer agreement with its former solicitor of record, Corrs Chambers Westgarth (on the basis that these documents have been referred to in an affidavit of Mr Patrick Gerard Gladwyn Jebb sworn 14 December 2015, read in this application);

(b) orders, in effect, that a West Australian law practice, Jebb Legal, be disallowed from remaining as the solicitors of record for the plaintiff; and

(c) an increase in the amount of the security for costs - which is sought by the defendants, up to the increased amount of $800,000.

4 As indicated, the above further contentious matters (a) to (c) are to be determined discretely, if necessary. Presently, I am only concerned with the disputed issue concerning whether or not the plaintiff needed to have paid a further $100,000 as a further tranche of security, by 27 November 2015 and whether then, in consequence, the plaintiff's action is now stayed?

5 Sadly, the issue concerning the defendants' applications seeking security for orders now goes back over some years. Under my reasons Trafalgar West Investments Pty Ltd As Trustee For The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 3] [2013] WASC 150, delivered 29 April 2013, I ordered that security for costs do be provided, by way of irrevocable bank guarantee by the plaintiff to the defendants in the amount of $150,000, but with payment to be rendered in successive tranches as the action advanced to a trial. At [21] - [23] of those reasons I said:

[21] I have, therefore, decided to order the plaintiff to provide by way of an irrevocable bank guarantee, security for costs totalling $150,000. To militate against the risk of the litigation being stultified, I will order payment shall be rendered in successive tranches as the action advances (hopefully!), with the first tranche ($32,648) assessed by reference to items 1 to 8 of the bill of defendants' costs annexed to attachment NEB4 of the affidavit of Ms Nicola Emma Batalin, affirmed 27 July 2011.

[22] The defendants shall have liberty to apply for further orders for payment of each tranche as the action proceeds, with the final payment - if any - to be made after completion of a mediation.

[23] The defendants also have leave to apply to increase the amount of security above $150,000 in the event that figure presents as inadequate, as time passes.

6 Those reasons issued at the end of April 2013, which is now a point approaching almost three years ago in this litigation, which commenced in March 2011 and has still not reached trial.

7 After publishing those 2013 security for costs reasons, I then issued orders on 10 June 2013, effectively timetabling payment of the tranches of security for costs in the amount of $150,000. I ordered that a first tranche of $32,648 - which was to be paid to cover the period up to discovery and inspection - was to be paid within seven days. That meant the payment of $32,648 was required by 17 June 2013.

8 At the time the proceedings were stayed for other reasons: see Trafalgar West Investments Pty Ltd As Trustee For The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 2] [2012] WASC 169.

9 But the first ordered tranche of security was not paid by the plaintiff at the time specified. Consequently, on 17 July 2013 I ordered that the proceedings be dismissed, if that first tranche of security was not paid by 17 September 2013. On 12 September 2013, the first tranche security amount ($32,648) was finally paid.

10 Thereafter, the action has progressed sporadically. Its progress can be broadly assessed from the defendants' chronology filed in respect of this application which I will attach as schedule A to these reasons. The plaintiff renders some criticisms of this chronology, but for present purposes it provides a basically reliable (albeit unchecked) overview of underlying events leading to the present application.

11 From a security for costs perspective, the next relevant events occurred towards the end of 2014 when, in the aftermath of an unsuccessful mediation, the defendants sought increased security and, in that context, a variation to my previous orders on this topic. The issue was effectively dealt with by consent, on 21 November 2014. This is explained from the plaintiff's perspective in a letter from the plaintiff's former solicitors, Corrs Chambers Westgarth, which is found as DXB7, an attachment to the second affidavit of Dalitso Banda, sworn on behalf of the defendants upon this application, on 8 December 2015. Attachment DXB7 is Corrs Chambers Westgarth's letter to the defendants' solicitors of 7 October 2015. The second paragraph of that letter reads:

The orders in relation to security for costs made 21 November 2014 (which were made largely by consent, in an endeavour to avoid yet another interlocutory application) represented a significant uplift in the amount of security to be paid by our client. In fact, those orders also resulted in the then security for costs amount being more than doubled ...

12 What was then a consensual request for the orders that I made on 21 November 2014, towards further security, is apparent.

13 Relevantly, as regards the increased security, I then issued the following orders (6 - 11) at that time. Their construction, especially order 8, is pivotal to the resolution of this application. The orders were as follows:

1. The overall amount of security for costs ordered on 29 April 2013 be uplifted from $150,000 to $350,000.
2. The first tranche of security ordered on 29 April 2013 be increased from $32,648 to $60,000, with the balance to be provided within seven days of order by way of payment into Court to be deposited into an interest bearing account with the Public Trustee.
3. Within seven days of the close of discovery and inspection, a second tranche of security in the amount of $100,000 be paid, up to entry for trial, by way of payment into Court to be deposited into an interest bearing account with the Public Trustee.
4. The balance of the security (ie, $350,000 - $160,000 = $190,000) to be paid within 14 days after entry for trial by way of payment into Court to be deposited into an interest bearing account with the Public Trustee.
5. The proceedings be stayed in default of payment of any security amount.
6. The defendants have liberty to apply to increase the amount of security in the event that the circumstances change so as to render the security ordered inadequate.

14 On the present application of the defendants I am concerned with the true meaning (in context) of order 8 of my orders made consensually, on 21 November 2014, and in particular its interaction with order 10.

15 The defendants contend that a second tranche of security in the amount of $100,000 has fallen due, to be paid by reason of the 'close of discovery and inspection'. The defendants contend that the inspection of discovered documents was completed on 19 November 2015. Hence they say the second tranche of security in the amount of $100,000 was due on 26 November 2015, and then with that amount not being paid, that the proceedings became stayed by the application of order 10, on 27 November 2015.

16 The defendant's chronology shows the progression of the action. This saw the parties exchange lists of documents to give informal discovery of documents - by reference to a Schedule A to consent orders issued on 18 May 2015. That event came to be followed by the giving of formal discovery - with sworn affidavits verifying the lists being exchanged on all sides concerning the parties' exchanged lists of documents.

17 According to the schedule to these reasons, the plaintiff gave its discovery verified by affidavit (with no documents discovered beyond those identified under its informal list earlier provided) on 7 October 2015. The defendants then gave discovery on affidavit on 9 November 2015 by affidavits filed from all defendants, including by the providing of the documents as was requested as further discovery - under the plaintiff's solicitors' requests of 25 September and 7 October 2015.

18 It is apparent from Mr Tharby's affidavit affirmed 11 December 2015 that the period through June 2015 to midNovember 2015 had been heavily consumed by much correspondence and communications between the parties' lawyers concerning documents sought by the respective parties from each other, conferral about that and then processes of informal, followed by more formal discovery (lists of documents verified by affidavits).

19 It is apparent that inspection was then completed. This was through a medium of the parties providing and exchanging compact discs, containing images of the copied documents, electronically: see Mr Tharby's affidavit attachments AJT20 and 21, a letter of 18 November 2015 from Mr Banda of the defendants' solicitors to Ms King of the plaintiff's former solicitors, and Mr Tharby's email attachment AJT21 of Thursday, 19 November 2015, providing further documents attached to that email (some of which were redacted for various reasons).

20 The present application is resisted by the plaintiff, in effect, on the basis that order 8 is not triggered, because there are ongoing issues concerning some further documents requested from the defendants and about which the parties remain in dispute.

21 Hence it is put by the plaintiff that there has been no 'close' yet, in any relevant sense of discovery and inspection being completed, for the purpose of engaging against order 8 of my orders of 21 November 2014.

22 That argument is grounded largely upon referring me to a lengthy request for further documents found within Mr Tharby's affidavit as attachment AJT4. This is Corrs Chambers Westgarth's 21-page letter, prefaced at par 1.4 in terms:

We set out below a number of requests for further and better discovery of documents ...

23 That letter led to a response, under communication AJT5 of 10 July 2015 from the defendants' solicitors, rejecting a substantial proportion of the requests as seeking irrelevant documents, unnecessary documents, or as mischaracterisations or documents asserted to exist by reference to issues that did not arise on the pleadings: see AJT5 page 32.

24 On 22 September 2015 there was a strategic conference. Part of that conference addressed then unresolved issues concerning the parties' discovery of documents.

25 At the end of that conference I issued orders requiring that the parties verify on affidavit the categories of documents listed in schedule A to consent orders of 18 May 2015 (which had addressed their issue of informal discovery).

26 Following that strategic conference and my orders, the plaintiff's former solicitors, Corrs Chambers Westgarth, wrote (see AJT14) on 25 September 2015 to the defendants' solicitors attaching a list of documents now said to be sought by way of 'further and/or specific discovery'. That letter further related:

Our letter dated 8 July 2015 set out in more detail the basis on which we assume the other items requested exist and how the items are directly relevant to the categories of discovery.

27 Under the heading 3, Disputed Categories of Discovery, the plaintiff's former solicitors, by reference to an attached list (which is headed List of Further or Specific Discovery) said that the plaintiff would press for discovery of item 30 and item 31 in the attached list. Paragraph 4 in the Corrs Chambers Westgarth letter of 25 September 2015 sought some further documents by reference to paragraphs of the amended pleading of the plaintiff.

28 There followed a further request for documents made by the plaintiff's former solicitors on 7 October 2015 (see AJT16) by reference to par 71 of the plaintiff's amended pleading. That unanswered request was then followed up by email from the plaintiff's solicitor (Ms King) on 28 October 2015 (after Mr Jebb had provided an affidavit verifying the plaintiff's list of documents on 7 October 2015 (see AJT 15).

29 On 29 October 2015 (see AJT18) the defendants' solicitors responded to the Corrs Chambers Westgarth letters of 25 September and 7 October 2015 which had requested further discovery. They did so by reference to a table addressing 31 specific categories of requested further discovery. They indicated that they were taking instructions and collating relevant documents in respect of the documents requested under Corrs Chambers Westgarth's request of 7 October 2015.

30 By Mr Tharby's email of 9 November 2015, AJT19, the defendants' affidavits of discovery were then sworn by Kingsley Craig Flugge, Margaret Flugge, Damien Craig Flugge, Jerome Matthew Flugge and Linley Flugge. They were filed at the court on Monday, 9 November 2015. Inspection was subsequently provided under the CD medium, as I have identified: see AJT20 and AJT 21, concluding as at 19 November 2015.

31 By further observation, I must note that there is no presently pending application filed on the part of the plaintiff seeking any further and better discovery.

32 On 4 December 2015 Corrs Chambers Westgarth ceased to be the solicitors of record for the plaintiff. On 7 December 2015, the entity known as 'Jebb Legal' filed a notice of change of solicitor.

33 For the purpose of resisting the present application, Mr Jebb has sworn his affidavit of 14 December 2015. Within that affidavit he has said:

1. In October 2015 LCM Litigation Fund Pty Ltd ('LCM') terminated its funding agreement with the Plaintiff.
2. On 24 November 2015 Corrs Chambers Westgarth terminated its retainer with the Plaintiff.
3. The Plaintiff remains unable to finance independent legal representation other than through the support of third party loans or litigation funding.
4. On the basis of the facts stated in paragraphs 4 to 8 above I instructed Jebb Legal, on behalf of the Plaintiff, to act for the Plaintiff.

34 By reference to a business name search handed up during the course of argument it became apparent that the business name, 'Jebb Legal', is simply a business name that is owned by Mr Jebb. So this is not a case of an incorporated legal practice seeking to become the solicitors of record for the plaintiff. The defendants' conflict of interest objections to Mr Jebb, in effect, acting through his own law practice (comprising just him) are the subject of a distinct objection restraint application, to be dealt with after a programmed exchange of written submissions on the point.

35 In essence, the issue between the parties distils to the construction of the security orders which I made on 21 November 2014, particularly order 8, which orders were effectively made at that time by consent.

36 It is important, in my view, for the terms of those orders to be construed in a context of a commercially sensible and workable approach to commercial litigation, bearing in mind their overall interlocutory and case management function.

37 Adopting that approach to the meaning of the phrase 'close of discovery and inspection', I cannot accept the submission of the plaintiff that because there may be a subsisting issue concerning a provision of further requested documents it seeks under a process of further and better discovery, that there has not been a 'close' in relation to the discovery and inspection events, for the purpose of triggering under order 8 the plaintiff's obligation to meet a further tranche of security in the amount of $100,000.

38 Especially when evaluated against the surrounding context of a first tranche of security payable in the increased amount under order 7 within seven days of 21 November 2014, and order 9, concerning an obligation to make a payment of a third tranche of security ($190,000) 14 days after entry for trial, the submission that order 8 is not engaged presents to me as an uncommercial and, ultimately, an unacceptable construction of my order 8.

39 It is quite apparent from having case managed this litigation since 2011 that its underlying dimensions are enormous, in terms of issues raised, their complexity and the volumes of documents canvassing the underlying events both in terms of years and magnitude. In that overall context, the fact that the parties could remain in some low level dispute right up until the trial over further and better discovery issues is entirely unremarkable, in complex commercial litigation. There is, of course, as is well accepted, an obligation under the rules of the court of providing ongoing discovery in the litigation process - as any new relevant documents come to hand - notwithstanding that a verified list of documents has earlier been provided (see in this jurisdiction RSC O 26 r 2(1) - applying until the 'conclusion of the trial'). The existence of such an obligation would not detract from or undermine the broad milestone timetabling sentiment governing the orders made under orders 7, 8 and 9 for a staged progression in the payment of what had then risen to the amount of $350,000 as the litigation advances to a trial.

40 Bearing in mind the need for a sensible commercial interpretation of the orders, the fact that verified lists of documents have been filed and exchanged on behalf of all parties and that there is no pending application whatsoever on foot against the defendants seeking further and better discovery of any documents, I am of the view that there has now been a relevant 'close' of discovery and inspection for the purpose of meeting the criterion of engagement under order 8. That 'close' occurred after the inspection of the documents, as was identified under the parties' verified lists, on 19 November 2015.

41 Consequently, the defendants are correct, in my view, in submitting that the second tranche of security in the amount of $100,000 fell due on 26 November 2015. Consequently, by force of order 10 of my orders, there then being a default in the payment of that second tranche from 27 November 2015, the proceedings are now stayed until the payment of that further security amount of $100,000 by the plaintiff to the defendants.

42 I am not yet ruling on the defendants' further application to have the action dismissed by reason of a failure to pay that amount by 15 January 2016. I will hear the parties further about that issue after these reasons are published.

43 The defendants, being successful, should have their taxed costs of pursuing this application.

Plaintiff files application for various undertakings and orders.

Special appointment listed to consider security for costs application (and plaintiff's application).

Hearing adjourned due to plaintiff's late filing and service of submissions and supporting affidavit.

Plaintiff files ex parte motion for leave to be represented by Mr Jebb.

Karp Steedman Ross-Adjie (KSRA) apply to cease acting.

The court rejects the plaintiff's and KSRA's applications.

KSRA required to act as a 'post box' as an interim measure.

Mr Jebb, as appointor of the Trafalgar West Investments Trust, substitutes himself for the plaintiff as trustee.

Plaintiff files ex parte motion for leave to be substituted as plaintiff by Mr Jebb.

Special appointment listed to hear Substitution Application.

Application dismissed due to court's concerns with effect of constitution of first defendant, share register and ASIC records.

Plaintiff files motion for leave to be substituted as plaintiff by Mr Jebb (Substitution Application).

Special appointment listed to hear Substitution Application.

The court publishes its decision, Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 2] [2012] WASC 169, rejecting the plaintiff's Substitution Application.

Consequent upon reasons for decision, the court orders the proceedings be stayed until further order.

Defendants re-agitate security for costs application (and file "futility" application (that plaintiff had lost standing to sue by reason of transfer of shares to Mr Jebb)).

The court publishes its decision, Trafalgar West Investments Pty Ltd [No 3] [2013] WASC 150, awarding security for costs totalling $150,000.

1. Security for costs totalling $150,000, with first tranche of $32,648 (up to discovery and inspection) payable within 7 days (i.e. by 17 June 2013) (First Tranche).

The plaintiff fails to provide First Tranche of security for costs.

Court orders the proceedings be dismissed if First Tranche of security for costs not provided by 17 September 2013.

Plaintiff provides First Tranche of security for costs.

Directions hearing listed - plaintiff sought (and was given) until 14 November 2013 to file and serve amended statement of claim (but does not file until 31 January 2014).

Plaintiff files notice of change of solicitor (Piper Alderman).

Plaintiff gives a notice pursuant to Order 9A, notifying LCM Litigation Fund Pty Ltd as an interested non-party.

Plaintiff files Amended Originating Summons and Substituted Statement of Claim.

Defendants apply to strike out parts of the Substituted Statement of Claim.

Plaintiff files notice of change of solicitor (Corrs Chambers Westgarth).

The court publishes its decision, Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 6] [2014] WASC 278, dismissing the defendants' strike out application.

Plaintiff files Amended Substituted Statement of Claim.

Plaintiff files Reply and Defence to Counterclaim and Request for Further and Better Particulars.

Parties agree orders referring matter to mediation (which is later listed on 18 November 2014).

3. further $100,000 payable within 7 days of discovery and inspection (Second Tranche); and

4. in default of any payments of security for costs, the proceedings be stayed.

Plaintiff gives notice of payment into court of balance of First Tranche of security (funds then transferred to Public Trustee).

Defendants file Answers to Request for Further and Better Particulars.

Plaintiff serves defendants with Minute of Re-Amended Substituted Statement of Claim.

Plaintiff files and serves defendants with Re-Amended Substituted Statement of Claim.

Plaintiff applies for leave to amend Amended Originating Summons.

Defendants oppose plaintiff's application for leave to amend, apply for consequential orders striking out amendments to statement of claim.

Court makes consent orders for informal discovery (of documents listed in Schedule A to the consent orders) to be exchanged by the parties by 5 June 2015.

Plaintiff provides defendants with informal discovery.

Defendants provide plaintiff with informal discovery.

Parties give inspection of informal discovery by exchange of electronic documents.

The court publishes its decision, Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 6] [2014] WASC 278 [sic] ([No 7] [2015] WASC 280) granting the plaintiff leave to amend its originating summons and dismissing the defendants' consequential strike out application.

Defendants file and serve plaintiff with Amended Defence and Counterclaim

Plaintiff files and serves defendants with Amended Reply.

Parties attend a strategic conference. The court orders that the parties give discovery (of documents listed in Schedule A to the consent orders made 18 May 2015) verified by affidavit by 9 October 2015.

Plaintiff requests the defendants to provide further discovery.

Defendants initiate conferral with respect to uplifting security for costs amounts following amendments to plaintiff's case.

Defendants file and serve Amended Answers to Request for Further and Better Particulars.

Defendants file and serve Rejoinder to Amended Reply and Reply to Defence to Counterclaim.

Plaintiff gives discovery on affidavit (no documents discovered in addition to informal list).

Plaintiff requests defendants to provide further discovery.

Defendants provide response to plaintiff's requests for further discovery.

Mediation vacated by consent (listed on 22 October 2015).

All defendants give discovery on affidavit, including the further discovery requested on 25 September and 7 October 2015.

Second Tranche of security for costs ($100,000) due, not paid.

Proceedings stayed by reason of 21 November 2014 orders.

CITATION : TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [No 8] [2016] WASC 34 (S)

BETWEEN : TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST

1 KENNETH MARTIN J: I published reserved reasons for decision in Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34 on 9 February 2016. At the end of those reasons, at [43], I concluded:

The defendants, being successful, should have their taxed costs of pursuing this application.

2 Paragraph [42] reflects what was a prima facie inclination towards the disposition of costs on this application, namely, that costs should follow the event for that application. However, the plaintiff, through pro bono counsel, indicated that it wishes to be heard in respect of the issue of costs for that application. Consequently, I agreed to receive each side's written submissions dealing with the issue of costs in respect of that decision on the basis that the issue of costs would be dealt with on the papers.

3 To that end, I received the plaintiff's written submissions on costs of 3 March 2016. They provide (note: the text appears without correction):

1. Following a hearing 18 December 2015, and in reasons published 9 February 2019 (Reasons), his Honour held that:

(a) the second tranche of security in the amount of $100,000.00 pursuant to orders made 21 November 2014 became due and payable 26 November 2015; and

(b) COR 59 of 2011 was stayed (not dismissed);

1. His Honour specifically stated [42] that he was not yet prepared to rule on the defendant's application for a dismissal and would hear the parties further (which occurred 18 February 2016 with judgment reserved).
2. His Honour indicated at [43] of the Reasons that the defendants should have their taxed costs of pursuing their application relating to the non-payment of the second tranche of security (Second Tranche Application).
3. At a subsequent hearing 18 February 2016 his Honour granted leave to the Plaintiff to make submissions on the appropriate costs order to be made.
4. The Plaintiff submits that no order for costs ought be made until the Defendants application for a dismissal is determined.
5. In the alternative the Plaintiff submits that the Defendant should not receive their taxed costs of the application on the basis that the Defendant's:

(a) should have limited their applications to the propriety of Mr Jebb acting on behalf of the Plaintiff (Representation Application) and engaged in proper conferral on the remaining applications;

(b) at no time sought merely that the matter be stayed;

(c) did not at any time prior to filing the Second Tranche Application request payment of the second tranche and in doing so failed to provide the Plaintiff with a realistic opportunity to agree on a stay while payment was being pursued which would have removed the need for a hearing;

(d) sought payment of $200,000.00 by 15 January 2016 by way of an increased second tranche and not the $100,000.00 held to be outstanding;

(e) put the Plaintiff to the trouble of considering 4 distinct applications (2 of which were abandoned) including for:

(i) an uplift in security for costs payable from $350,000 to $800,000, supported by an affidavit of 66 pages;

(ii) details of any entity that had provided litigation funding to the Plaintiff; and

(iii) copies of the Plaintiff's retainer agreement with its former solicitors and funding agreement with its former funders with a view to applying for non-party costs orders on the matters dismissal; and

(f) failed to confer with independent counsel or at all before filing each and every application above.

1. On 4 December 2015 Jebb Legal advised the Defendant's solicitors by letter that the Plaintiff's former solicitors had ceased acting on account of the earlier withdrawal of litigation funding and that Jebb Legal had agreed to represent the plaintiff.
2. Importantly this letter conceded Mr Jebb's lack of independence to the Plaintiff and properly invited the Defendant's solicitors to confer with independent counsel on an application the Defendant's may wish to make, or which the Court may itself initiate, on Jebb Legal's right to act for the Plaintiff.
3. Until this application was determined Jebb Legal properly could not, and did not, seek further and better discovery or apply to have the security of costs order varied on a change in circumstances.

1. At 2.21pm 8 December 2015 solicitors for the Defendant's responded by email to Jebb Legal's letter, a copy of which is attached to this submission, advising that the Defendants:

(a) will be seeking orders that he matter be dismissed for want of payment of the second tranche [4];

(b) would be requesting the Court restrain Jebb Legal from acting [10]; and

(c) would be seeking an uplift in security for costs.

1. Notably this was the first time the Defendants had suggested payment of the second tranche was due, let alone overdue.
2. This letter did not indicate that payment of the second tranche would be accepted within a reasonable time or that anything other than dismissal of the action was being sought for non-payment. The Plaintiff was not given the opportunity to agree to a stay on any terms.
3. At 5.38pm the same day (8 December 2015) the Defendant's solicitors sent a minute of proposed orders to Jebb Legal which provided at [7] and [8] in effect that if the Plaintiff paid the second tranche of $100,000.00 by 15 January 2016 then the security for cost order be increased to $800,000.00 and that the second tranche would be increased to $200,000.00.
4. Importantly the effect of the Defendant's proposed order [7] and [9] was that even if the Plaintiff was able to pay the $100,000.00 by 15 January 2016 the payment would still be insufficient to satisfy the amended second tranche payment requiring a further $100,000.00 on the same day.
5. The Defendants therefore never notified the Plaintiff that the second tranche was due, and did not offer to accept the second tranche payment of $100,000.00 even if it were to be paid when it was first requested.
6. Approximately 4 minutes after the proposed minute of orders above were sent to Mr Banda, on behalf of the Defendants, filed by email:

(a) a 17 page affidavit in support of the Defendant's application for an increase in the security from $350,000.00 to $800,000.00;

(b) a minute of proposed orders in relation to security for costs; and

(c) a second minute of proposed orders in relation to:

(i) Jebb Legal acting for the Plaintiff;

(ii) any prior litigation funding arrangements of the Plaintiff; and

(iii) trial allocation and programming;

1. The effect of these filed minutes of proposed orders insofar as the second tranche payment was concerned was as described in paragraph 14 above.
2. On 11 December 2015 Mr Tharby, on behalf of the Defendants, filed a:

(a) 5 page document entitled 'Defendant's Chronology' in support of the application for security for costs (Chronology); and

(b) 66 page affidavit in support of the orders sought by the Defendants.

1. On 16 December 2015 Mr Banda notified the Court that paragraph 6 of his affidavit incorrectly stated that conferral had been undertaken and confirmed this paragraph would not be read.
2. On the same day Mr Banda filed a further minute of proposed orders seeking copies of the Plaintiff's former solicitor's retainer agreement and former funders funding agreement.
3. At the hearing 18 December 2015 the Representation Application was ordered to be determined on the papers (largely in accordance with the Plaintiff's minute) and the Court heard argument only on the Defendant's application for the matter to be dismissed on account of the non-payment of the second tranche of security.
4. Neither the security for costs uplift and application for details of prior funding details were pursued.

4 There followed the response from the defendants' solicitors to the plaintiff's submissions. These are the defendants' written submissions as to costs concerning that reserved decision. The written submissions were provided on 11 March 2016. They provide as follows:

1. The plaintiff failed to pay a second tranche of security for costs in the amount of $100,000 by 25 November 2015 and disputed that it was liable to do so. This dispute was resolved in the Defendants' favour which is recorded in the Court's Reasons for Decision [No 8] 2016 WASC 34 (Reasons). The unsuccessful plaintiff sent submissions to the Court regarding the costs of that dispute on 3 March 2016 (Plaintiff's Submissions). The Plaintiff's Submissions identify no proper basis as to why the costs of the disputed application should not follow the event.

1. The Plaintiff's Submissions have been signed by Jebb Legal despite the plaintiff's proffered undertaking not to file any document that had not been settled by counsel. This has required the defendants' response, at their cost, and further highlights the issue of Mr Jebb acting for the plaintiff through Jebb Legal.
2. The Court should dismiss the plaintiff's request that any order as to costs should await the determination of the defendants' application for a dismissal. This submission is misconceived: the dismissal application is the very subject of the Reasons, upon which selfexecuting orders have issued. In any event, the Court has now made springing orders for dismissal in [No 9] [2016] WASC 68 at [55].
3. The plaintiff's alternative position is that the defendants should not receive their costs. In answer to the matters raised in support of that position, the defendants respond seriatim:

4.1 the security for costs application made by the defendants was necessary due to the plaintiff's failure to pay, and disputing its liability to pay, the second tranche. The allegation that the defendants failed to properly confer fails to acknowledge that pro bono counsel for the plaintiff, Mr Penglis' authority to confer was limited to the plaintiff's representation only. In any event, order 1 for the defendant's minute of proposed orders for the strategic conference dated 8 October 2016 [sic] requested that the defendants be discharged from the requirement to confer with Mr Jebb.

4.2 the defendants were not required to seek that the matter be stayed: The stay was effected by the operation of the self-executing orders made, by consent, on 21 November 2014 and the plaintiff's failure to pay the second tranche.

4.3 due to the automatic operation of the orders on 21 November 2014 it was not necessary 'to provide the plaintiff with a realistic opportunity to agree on a stay while payment was being pursued'.

4.4 the defendants have applied to uplift the amount of security for costs, which application has not been progressed, although conferral had taken place between Bennett + Co and the plaintiff's former solicitors, Corrs.

4.5 the plaintiff's conduct has given rise to the defendants' separate applications, none of which have been abandoned contrary to the plaintiff' submission, and will need to be determined if the stay of the proceedings is lifted.

4.6 again, Mr Penglis' authority to confer was limited to the plaintiff's representation.

1. The defendants respond to the balance of the Plaintiff's Submissions by reference to the headings used in the Plaintiff's submissions.

1. The plaintiff repeats that the defendants acted unreasonably by failing to suggest to the plaintiff that payment of the second tranche was due and by failing to accept payment within a reasonable time. The stay of proceedings was automatic and, given the plaintiff remains in default of payment of the second tranche of security for costs, the plaintiff would not have been able to make payment within a reasonable time in any event.
2. Paragraph 19 of the Plaintiff's Submissions has no basis. Mr Banda's email to the Court stated that the defendants would not read paragraph 6 of his affidavit into evidence following conferral between Mr Penglis and Mr Bennett. A copy of that email is annexed to these submissions as Annexure 'A'.
3. As to paragraphs 21 and 22 of the Plaintiff's Submissions, the parties have exchanged submissions regarding the Representation Application and the defendants' 'Production Application', and the defendants' application to uplift the amounts of security for costs remain in abeyance pending whether the plaintiff will remedy its default in failing to pay security for costs by noon on 8 April 2016.

1. The plaintiff has put forth no valid reason why costs ought not follow the event on the application regarding the construction of the security for costs orders. As the Court held, the plaintiff's construction was uncommercial and unacceptable. The plaintiff resisted the application. The defendants were left with no option but to seek the court's orders against the plaintiff's active resistance. The defendants were successful in their application and therefore costs should follow the event.

5 In short, I accept the essence of the written submissions of the defendants. They confirm me in the prima facie disposition as to costs, which I indicated under [43] of my earlier reasons.

6 The fallacy in the plaintiff's arguments is that it overlooks that the plaintiff voluntarily took up a position, and chose to maintain and to argue to support that position when it was challenged, and then, was ultimately proven wrong in the end, as regards the subject matter of a dispute concerning whether or not the $100,000 security instalment was then due. It was due. The plaintiff lost that argument. The only reason there was an argument was because the plaintiff chose to advocate a position about which it was proven wrong. Costs were incurred by the defendants in the process. Taxed costs should follow that event. The multiple other considerations sought to be raised by the plaintiff are only irrelevant distractions. They do not engage viably against the core point that the plaintiff voluntarily chose to fight on this issue and lost in the end.

7 In short, nothing within the plaintiff's written submissions persuades me that the ordinary rule concerning costs following the event in the wake of what was a contested argument, ought not to apply here.

8 Consequently, orders will issue upon the publication of these reasons that the plaintiff should pay the defendants' taxed costs of the application and of the argument heard in chambers on 18 December 2015, which became the subject matter of my written reasons in Trafalgar [No 8], delivered 9 February 2016.

9 The defendants should also have their taxed costs associated with the preparation of their written submissions exchanged for the purposes of the present costs determination on the papers, which has been required by the plaintiff. Orders in those terms shall issue upon the publication of these reasons.