Bhagat v Murphy [2000] NSWSC 892

New South Wales Supreme Court

CITATION : Bhagat v Murphy [2000] NSWSC 892 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2892/97 HEARING DATE(S) : 18/08/2000 JUDGMENT DATE : 7 September 2000

PARTIES : Hari Bhagat (P) John William Murphy (D) JUDGMENT OF : Young J

COUNSEL : Plaintiff in person J W Stevenson (D) SOLICITORS : Plaintiff in person Mallesons Stephen Jaques CATCHWORDS : PROCEDURE [670]- Security for costs- Principles- Litigant in person- No assets- Small stake in trust- Complex and expensive proceedings- Security granted. Cowell v Taylor (1885) 31 Ch D 34 Janus v AGC (Advances) Ltd (19.10.1988) M A Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 Morris v Hanley (Young J, 25.8.2000) CASES CITED : Orr v Lusute Pty Ltd (1987) 72 ALR 617 Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443 Tradestock Pty Ltd v TNT (Management) Pty Ltd (1977) 14 ALR 52 Usil v Brearley (1878) 3 CPD 206 Waddell v Blockey (1878) 10 Ch D 416 DECISION : Security granted.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J THURSDAY 7 SEPTEMBER 2000

2892/97 - BHAGAT v MURPHY & ORS

JUDGMENT

1 HIS HONOUR: This is a notice of motion for security for costs in the sum of $300,000 brought by the first, second, third and fourth defendants against the plaintiff. 2 The proceedings were commenced in June 1997. Essentially the plaintiff says that the trustees of the Estate Mortgage Depositors' Trust (the "Trust") misled the Court by seeking judicial advice, and then fraudulently or negligently intermingled the moneys of various trusts under their control to the detriment of the plaintiff and many others. 3 The proceedings are set down for hearing before me on 28, 29, 30 November and 1, 5 and half of 6 December 2000. 4 The plaintiff basically alleges breach of fiduciary duties. He claims mainly monetary orders including damages and an order that certain of the defendants pay back fees with interest that they may have received as trustee and manager of the Estate Mortgage Depositors' Trust No. 4. 5 The present application is not made under the Supreme Court Rules but under the inherent jurisdiction of the Court. The inherent jurisdiction of the Court is basically to prevent abuse of process, but in this particular area it enables the Court, where it can see that there may be injustice to a party, to make an order for security for costs so that unsuccessful proceedings will not occasion injustice to the defendants. 6 I considered the inherent power recently in Morris v Hanley (25 August 2000, as yet unreported), where I considered the authorities and held that the purpose of exercising the inherent power is to prevent abuse of the Court's processes by putting a brake on proceedings which would otherwise operate oppressively and vexatiously against a defendant. 7 Mr Stevenson of counsel who appears for the moving defendants, concedes that the Court does not ordinarily make an order under the inherent power and that it is incumbent to show that there are circumstances warranting the making of such an order. 8 Mr Stevenson says that there are a series of matters in the present case which should lead to that conclusion, the most significant of which are: