Porter v Aalders Auctioneers and Valuers Pty Ltd and Anor [2011] NSWDC 96

Porter v Aalders Auctioneers and Valuers Pty Ltd and Anor [2011] NSWDC 96

Mr Porter remained ordinarily resident in Thailand because his return to Australia occurred one day before the return date of the motion, appeared largely prompted by the litigation, he had strong business ties in Phuket, planned to spend seven of the next twelve months in Thailand, and lacked evidence of a settled purpose to reside in Australia. Given his limited Australian assets, the absence of reciprocal enforcement arrangements with Thailand, the promptness of the application, and the assessment that his prospects raised serious issues, the discretion favoured ordering security for costs.

Jurisdiction
Australia
Judgment Date
15 August 2011
Procedural Posture
Motion for Security for Costs in Civil Proceedings Alleging Breach of Bailment Agreement, Conversion, and Alternatively Breach of Duty of Care in Connection With an Auction Process / Interlocutory Motion
Outcome
Motion granted
Legal Topics
['security for Costs' 'ordinarily Resident Outside Australia' 'discretionary Considerations' 'enforcement of Judgment' 'prospects of Success' 'terms of Security']
['civil Procedure' 'costs' 'bailment' 'conversion' 'negligence'] ['security for Costs' 'ordinarily Resident Outside Australia' 'discretionary Considerations' 'enforcement of Judgment' 'prospects of Success' 'terms of Security']

Case Brief

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Procedural Posture

Motion for Security for Costs in Civil Proceedings Alleging Breach of Bailment Agreement, Conversion, and Alternatively Breach of Duty of Care in Connection With an Auction Process / Interlocutory Motion

Legal Issues

  1. 1 ['Whether Aalders established that Mr Porter was ordinarily resident in Thailand' "If Mr Porter was ordinarily resident in Thailand, whether the Court's discretion should be exercised in favour of Aalders" 'If security for costs should be ordered, on what terms security should be ordered']

Ratio Decidendi

Mr Porter remained ordinarily resident in Thailand because his return to Australia occurred one day before the return date of the motion, appeared largely prompted by the litigation, he had strong business ties in Phuket, planned to spend seven of the next twelve months in Thailand, and lacked evidence of a settled purpose to reside in Australia. Given his limited Australian assets, the absence of reciprocal enforcement arrangements with Thailand, the promptness of the application, and the assessment that his prospects raised serious issues, the discretion favoured ordering security for costs.

Court Disposition

Motion granted

Orders

  • ['Mr Porter is to provide $40,000 by way of security for costs.' 'The sum of $20,000 is to be paid by 15 September 2011 and the remainder by 15 October 2011.' 'The proceedings are stayed until the security is given.']