here - Gordon & Jackson

9. The plaintiff carries the burden to persuade the court as to whether the
defendant was the cause of the plaintiff’s financial difficulties. 12 The plaintiff
needs to provide the Court with evidence, on affidavit from the plaintiff not just
the solicitor acting, in support of its assertion.
10. There must be a solid foundation for that conclusion: Right Home
Improvements International Pty Ltd v Imperial Alarm Screens (Aust) Pty Ltd 13 .
Also, the plaintiff carries the onus of satisfying the court on the basis of
admissible evidence. 14 Demonstrating that the defendant is a large debtor of
the corporation will assist in providing a foundation for a claim by the plaintiff
that the defendant is the cause of its “parlous financial position”. 15
Impecuniosity of the Plaintiff
11. In order to be successful in its application the defendant needs to provide
proof of the plaintiff’s impecuniosity which the plaintiff is unable to refute
12. In respect of 62.02(1)(a) above, where the plaintiff’s registered office and
principal place of business are outside Victoria there is a rebuttable
presumption that the plaintiff is “ordinarily resident outside Victoria” 16 .
13. The Court will also take into account the likelihood that the plaintiff may seek
to divest itself of “valuable assets” merely to thwart a Costs order 17 especially
if its assets are portable. 18 This point is probably more relevant to individual
plaintiffs rather than corporations.
14. However, the cases show that it is not necessary for a plaintiff to have its
assets located within Victoria provided it has assets sufficient to meet any
liability for costs 19 , on which a judgment for costs may be levied upon
registration of the judgment in the jurisdiction in accordance with the Service
12 BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857 (WASC);
13 (1986) ATPR 40 – 641 (FCA).
14 Ninian v St George Bank Ltd [2012] FCA 905 ; at [48].
15 Colmax Glass Pty Ltd v Polytrade Pty Ltd [2013] VSC 311.
16 Re Little Olympian Each Ways Ltd [1994] 4 All ER 561.
17 Apollinaris Co. & Trade Marks [1891] 1 Ch1, Halsbury LC.
18 Ellenberg v Wengott (1896) 17 LR NSW Eq 22.
19 Re Percy and Kelly Nickel, Cobalt and Chrome Iron Mining Co (1876) 2 Ch D 531;45 LJ Ch 526 and Vlasons Shipping
Inc v Neuchatel Swiss General Insurance (VSC, Ashley J, No 5708/93, 7 September 1993, unreported.
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