Case: Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972
Outcome: applied
Two additional guidelines suggested by Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 50,635 are: 1. Whether there are aspects of public interest which weigh in the balance against the making of an order; and 2. Whether there are any particular discretionary matters peculiar to the circumstances of the case. 24 In this case, the first question is whether the applicant is capable of meeting a costs order in favour of the respondents in the event that the respondents are successful in defending the applicant's claim in the substantive proceedings. Submissions of the respondents 25 Referring extensively to Mr Thirgood's affidavit, Mr Piggott for the applicant submitted in summary that the bases for the belief that the applicant will be unable to meet a costs order are as follows: 1. The applicant pleads in its statement of claim that it did not complete the contracts because it was unable to raise the necessary funds. 2. The applicant has a paid up capital of $1.00. 3. The applicant has granted a fixed and floating charge over all of its assets to St George Bank Ltd to secure up to $6.56 million, and a fixed charge over a motor vehicle to BMW Australia Finance Ltd to secure in excess of $43,000. 4. The applicant owns no real property in Queensland, and although it is the registered proprietor of three real properties in Western Australia each of those properties is subject to a registered mortgage and two are subject to a registered caveat. 5. Property of which the applicant is the registered proprietor in Western Australia - the Canning Road Property - is held by the applicant on trust for the Success Development &amp; Property Group Unit Trust. The applicant entered the relevant contracts the subject of its claim as trustee for a different trust, namely the SDA Tarameo Unit Trust. 6. The applicant is yet to meet a costs order made by Siopis J on 6 February 2007. 7. In correspondence and in affidavit material filed on the notice of motion: a) The applicant has not asserted, and has made no attempt to show, that it could meet a costs order out of assets it owns beneficially. b) The applicant has not explained or identified the level of its indebtedness presently secured by each of the registered charges and mortgages identified by the respondent. c) The applicant has not explained the registered caveats over two of its real properties. 26 Submissions 1-6 were not disputed by the applicant. 27 In addition to this the respondents challenge the alleged value of property held by the applicant. As I noted earlier in this judgment, Mr Piggott objected to para 4 in Mr Hosgood's affidavit which reads as follows: "On 11 September 2007, I obtained a document from my client titled 'Executive Summary Valuation' annexed hereto and marked JOH-01. I am informed by this document that on 15 April 2007, the total aggregate market value as complete of Canning Road Development was $4,775,000." 28 The annexure JOH-01 titled "Executive Summary Valuation" appears to be a document of 14 pages in length relating to the Canning Road Development prepared by Hegney Property Valuations for the applicant. Mr Piggott directed my attention to the extensive disclaimer in cl 13 of the document which includes, inter alia , the following statements: "Neither the whole nor part of this report, nor any reference thereto may be included in any document, circular or statement without our written approval of the form and context in which it will appear. In accordance with standard practice it is stated that this report is prepared for the addressee only and no liability for damages incurred by a third party using the whole or any part thereof will be accepted. This valuation has been prepared on specific instructions from Keith Amor for the purpose of establishing current market value. The report is not relied upon by any other person of for any other purpose. We accept no liability to third parties nor do we contemplate that this report will be relied upon by third parties. We invite other parties who may come into possession of this report to seek our written consent to them relying on this report. We reserve our right to withhold consent or to review the contents of this report in the event that our consent is sought." 29 Mr Piggott further submitted that the Executive Summary Valuation did not comply with the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia. In summary, Mr Piggott submitted that in light of these issues, the probative value of the evidence as to value of the Canning Road Development was low and should not be admitted. Submissions of the applicant