Richardson v Leonard Cohen & Co (A Firm)

[2007] WASCA 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   RICHARDSON -v- LEONARD COHEN & CO (A FIRM) [2007] WASCA 93

CORAM:   McLURE JA

HEARD:   27 APRIL 2007

DELIVERED          :   27 APRIL 2007

FILE NO/S:   CACV 18 of 2007

BETWEEN:   PHILLIP RICHARDSON

Appellant

AND

LEONARD COHEN & CO (A FIRM)
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SWEENEY DCJ

Citation  :LEONARD COHEN & CO -v- RICHARDSON & ANOR [2005] WADC 172

File No  :CIV 970 of 2000

Catchwords:

Appeal - Application for security for costs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 15
Supreme Court Act 1935 (WA), s 61
Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1)(f), r 43(2)(h), r 44

Result:

Application granted

Category:    B

Representation:

Counsel:

Appellant:     Mr D H Solomon

Respondent:     Mr B W Ashdown

Solicitors:

Appellant:     Solomon Brothers

Respondent:     Stewart Forbes

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

Mann v Dabelstein [2006] WASCA 176

1. McLURE JA: The respondent, a firm of solicitors, applies under r 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) ("Rules") for an order for security for costs of the appeal. A single Judge of this Court has the power to make an order for security for costs: s 61 of the Supreme Court Act 1935 (WA); r 43(2)(h) and r 3(1)(f) of the Rules. The discretion to order security for costs is unfettered: Mann v Dabelstein [2006] WASCA 176.

2. The appeal arises out of an action brought in the District Court by the respondent against the appellant for outstanding fees.  As a result of the appellant's continuing failure to give proper discovery the respondent applied for and obtained from Deputy Registrar Hewitt on 5 May 2005 a springing order against the appellant.  The appellant appealed against the springing order.  The de novo appeal before a single Judge of the District Court was heard by Sleight DCJ.

3. On my reading of the learned Judge's reasons he made an order for judgment under O 26 r 15 of the Rules of theSupreme Court 1971 (WA). That may be a significant factor in assessing the merits of the appeal. The appellant commenced an appeal from the orders of Sleight DCJ which appeal was dismissed by Wheeler JA for the appellant's failure to comply with the Rules. The appellant then filed an application for an order extending the time for compliance with the springing order and an order setting aside the decision of Sleight DCJ.

4. Deputy Registrar Hewitt dismissed the application on the ground that the Court did not have the power to make the orders sought.  The appellant appealed from the decision of the Deputy Registrar and that appeal was dismissed by Sweeney DCJ on 12 January 2007.  Sweeney DCJ's decision is the subject of the present appeal.  In September 2006 the respondent served the appellant with a bankruptcy notice relying on the judgment debt in the action.  Further, there are outstanding costs orders between the parties, the balance of which are in favour of the respondent.  The respondent seeks security for costs in the sum of $15,000. 

5. As is apparent from the reasons of Sleight DCJ and Wheeler JA, the conduct of the appellant's case in the proceedings between the parties has displayed an intentional and contumelious disregard for the relevant rules of court and the orders made in the proceedings between the parties.  It is unnecessary for me to determine whether that disregard is the responsibility of the appellant personally or his solicitors.  That conduct has had the inevitable result of delaying the proceedings and substantially increasing the respondent's solicitor-client costs.  For the purposes of this application I will accept that the appellant has an arguable case.  However, in my assessment, the merits of the appeal are not so strong as to weigh heavily in the balance against an order for security for costs.

6. The appellant has filed an affidavit as to his personal circumstances.  It is in interesting terms.  He swears that he currently works as manager of a family business; that that business is owned by his wife as trustee of the family trust; that the beneficiaries of the trust are his wife and children; and that he is not paid for performing any work.  The affidavit does not negative the possibility of the appellant being the author of his own impecuniosity.  I note he has solicitors acting for him.

7. In my assessment the conduct of the proceedings on behalf of the appellant to date more than amply justifies an order for security for costs.  I accept the submission that the amount sought is greater than what is reasonable in the circumstances.  Therefore I propose to order that (1) the appellant pay into court the sum of $10,000 as security for the costs of the appeal and (2) the time for filing the Respondent's Case be extended until 21 days after the security for costs has been paid into court.  The costs of this application should be costs in the appeal.