Boksmati v Girgis Nominees (WA) Pty Ltd

[2014] WASCA 101

BOKSMATI -v- GIRGIS NOMINEES (WA) PTY LTD [2014] WASCA 101

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 101
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:139/2013	Heard:	5 MAY 2014
Coram:	MURPHY JA	Delivered:	14/05/14
No of pages:	28	Judgment Part:	1 of 1
Result:	Application for security allowed
Category:	B
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Parties:	HOSSAM BOKSMATI GIRGIS NOMINEES (WA) PTY LTD JOONDALUP ENTERTAINMENT PTY LTD VALI ALI SEFAT BULOBIN
Catchwords:	Security for costs Application by respondent in an appeal Discretion Factors considered Whether order would stifle appeal Turns on own facts
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 3, r 43(2)(h), r 44(1) Oaths, Affidavits and Statutory Declarations Act 2005 (WA), s 8, s 9, s 9(7), s 16(1), s 16(2)
Case References:	Ailakis v Olivero [2013] WASCA 91 Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Brocx v Hughes [2010] WASCA 57 Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171 Dodds v Kennedy [2011] WASCA 32 Eng Mee Yong v Letchumanan [1980] AC 331 Frayson Pty Ltd v Stirfry Enterprises Pty Ltd [2008] WASC 301; (2008) 223 FLR 342 House v The King [1936] HCA 40; (1936) 55 CLR 499 Mann v Dabelstein [2006] WASCA 176 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 Willoughby v Clayton Utz [2008] WASCA 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOKSMATI -v- GIRGIS NOMINEES (WA) PTY LTD [2014] WASCA 101 CORAM : MURPHY JA HEARD : 5 MAY 2014 DELIVERED : 14 MAY 2014 FILE NO/S : CACV 139 of 2013 BETWEEN : HOSSAM BOKSMATI

Appellant

AND

GIRGIS NOMINEES (WA) PTY LTD
First Respondent

JOONDALUP ENTERTAINMENT PTY LTD
Second Respondent

VALI ALI SEFAT BULOBIN
Third Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 1697 of 2013

Catchwords:

Security for costs - Application by respondent in an appeal - Discretion - Factors considered - Whether order would stifle appeal - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 3, r 43(2)(h), r 44(1)

Oaths, Affidavits and Statutory Declarations Act 2005 (WA), s 8, s 9, s 9(7), s 16(1), s 16(2)

Result:

Application for security allowed

Category: B

Representation:

Counsel:

Appellant : Mr S K Shepherd
First Respondent : Mr D H Solomon
Second Respondent : No appearance
Third Respondent : No appearance

Solicitors:

Appellant : Thompson Downey Cooper
First Respondent : Solomon Brothers
Second Respondent : No appearance
Third Respondent : No appearance

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

Ailakis v Olivero [2013] WASCA 91
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Brocx v Hughes [2010] WASCA 57
Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171
Dodds v Kennedy [2011] WASCA 32
Eng Mee Yong v Letchumanan [1980] AC 331
Frayson Pty Ltd v Stirfry Enterprises Pty Ltd [2008] WASC 301; (2008) 223 FLR 342
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mann v Dabelstein [2006] WASCA 176
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129
Willoughby v Clayton Utz [2008] WASCA 93

MURPHY JA:

Introduction

1 This concerns an application for security for costs by the first respondent in an appeal by the appellant in relation to an order for summary judgment made by Master Sanderson. The decisions challenged in the appeal include an interlocutory decision with a long history.

2 The application is brought pursuant to r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). Rule 43(2)(h) provides that a single judge has jurisdiction to make an interim order in an appeal. The expression 'interim order' is defined in r 3 and includes 'an order that an appellant provide security for a respondent's costs'.

3 For reasons which follow, the application for security should be granted.

The litigation in the court below

4 On 1 May 2013, the first respondent (lessor) issued a writ indorsed with a statement of claim against the appellant, the second respondent (lessee) and the third respondent (Mr Bulobin). It was alleged, in effect, that by an instrument dated 25 February 2010, the lessor had leased certain premises to the lessee and that, relevantly, by cl 9 of the instrument, the appellant and the third respondent had guaranteed payment to the lessor of any moneys payable by the lessee to the lessor under the lease. It was alleged, in effect, that when the lessee took possession of the premises at the commencement of the lease, they were fitted out for the purpose of conducting a night club business and that when the lessee delivered up possession of the premises they were not suitably fitted out for that purpose, in that a substantial portion of the fixtures, fittings and the like had been damaged, destroyed or removed, and that the lessee had not delivered up possession in a good and substantial repaired order and condition. The lessor, in effect, claimed the cost of restoring the premises. It also claimed liquidated damages in accordance with a term of the lease for late delivery of the premises by the lessee. It was alleged that those amounts were recoverable under the guarantee in cl 9 of the instrument.

5 The third respondent (Mr Bulobin) was not served with the proceedings and the lessee did not enter an appearance. The appellant, however, was served. He filed a defence on 24 May 2013 by his former solicitors, Hotchkin Hanly Lawyers (Hotchkin Hanly). The effect of the defence was to deny any liability under cl 9 of the instrument because the guarantee, properly construed, did not apply if the lease had not been registered, and the lease instrument of 25 February 2010 had not been registered. On 27 May 2013, the lessor filed a reply.

6 On 16 July 2013, there was a meeting between Hotchkin Hanly and the lessor and its solicitors (referred to by the appellant in the affidavit mentioned in [13] below). The appellant apparently had not been given notice of the meeting by his then solicitor. The appellant's solicitor at Hotchkin Hanly reported to the appellant in these terms:

I attended the meeting without you. I apologise for you not being there and explained that it was my fault, and they were willing to discuss the matter on a without prejudice basis. … Their position … is that they have tried to find the other defendant [Bulobin] but they haven't been able to. They've tried his family, but no one will say where he is, and they say that he has sold his only property.

That being the case, they have decided to go after you, and don't really care whether it is unfair. They are willing to discuss a settlement to avoid the effort of legal proceedings, and they are willing to obtain another quote regarding the amount to restore the fitout, but they say that [they] believe the guarantee is binding and that they will be successful in obtaining the money from you.

Once I established that they were focussed on you, I didn't want to spend the time having legal arguments, as this would just have given them more ammunition against you.

I have asked them to provide me with some further documents which will enable me to assess some arguments that I have left regarding your liability under the guarantee. Once I have those documents, I'll be able to give you a final answer as to your prospects of avoiding the guarantee. (emphasis added)

7 On 28 August 2013, the lessor applied for summary judgment against the appellant, including for leave to serve the application out of time (the application ought to have been brought, under the rules, by the end of May 2013). Affidavits in support were sworn by Mr Girgis, the sole director and shareholder of the lessor, and Ms Hong of the lessor's solicitors. Mr Girgis annexed the instrument dated 25 February 2010. The parties were recorded on the title page of the instrument and in the description of the parties immediately prior to the recitals, as the lessor, the lessee, the appellant and Mr Bulobin. It was, on its face, executed by all named parties. Mr Girgis' affidavit, read with Ms Hong's, included evidence to the effect that the premises had been suitably fitted out for a nightclub business at the commencement of the lease and that when the lessee delivered up possession of the premises, a substantial portion of the fittings, fixtures and the like had been damaged, destroyed or removed. There was also evidence that the lease had been terminated pursuant to an order of the District Court dated 6 July 2012 in proceedings (CIV 1207 of 2012) between the lessor, the lessee, the appellant and Mr Bulobin (Girgis par 8.2.1). There was also evidence of a notice of demand having been issued by the lessor to the lessee, the appellant and Mr Bulobin dated 12 December 2012 (Girgis par 8.2).

8 On 12 September 2013, there was the first return of the lessor's chamber summons for summary judgment. Programming orders were made requiring the appellant to file and serve any affidavits in opposition to the application for summary judgment by 3 October 2013 and to file and serve submissions by 17 October 2013. The hearing of the application was adjourned to the first available date after 17 October 2013. It was then listed for hearing on 29 October 2013.

9 In October 2013, Hotchkin Hanly applied to be removed from the record supported by affidavit sworn 3 October 2013.

10 In late October 2013, the appellant engaged another firm of solicitors, Alison & Associates (Legal) Pty Ltd (Alison & Associates). They prepared a notice of appearance dated 28 October 2013. The notice of appearance stated that the 'Defendant's [appellant's] service details' were '[care of] Alison & Associates (Legal) Pty Ltd … Attention: Alison Aldrich'. Ms Aldrich also signed the foot of the document as '… Defendant's [appellant's] solicitor'.

11 On 28 October 2013, there were consent orders vacating the listing of the hearing of the application for summary judgment on 29 October 2013, and extending the time, up to 1 November 2013, for the appellant to file and serve any affidavit and submissions in opposition. The consent orders included an order that the appellant pay the lessor's costs (taxed if not agreed) of and incidental to vacating and relisting the application for summary judgment. Costs were agreed in the sum of $374.

12 The lessor's application for summary judgment was then listed for hearing on 19 November 2013.

13 On 14 November 2013 after 5.00 pm, the appellant's solicitors emailed the lessor's solicitors a copy of what was described as an affidavit by the appellant dated 14 November 2013. For reasons which will emerge, this document will be referred to as 'the disputed affidavit'. The email indicated that the disputed affidavit had not been filed.

14 On 15 November 2013, the lessor's solicitors emailed the appellant's solicitors and requested that the disputed affidavit be formally served after it had been accepted for filing.

15 On 18 November 2013, the appellant's solicitors emailed the lessor's solicitors attaching a copy of the disputed affidavit which was stamped as having been filed in the District Court of Western Australia. Shortly thereafter, the lessor's solicitors informed the appellant's solicitors that the disputed affidavit appeared to have been filed in the wrong court. Later that day, the appellant's solicitors advised by email that the disputed affidavit had been 'lodged', but 'not officially filed' at the Supreme Court.

The disputed affidavit

16 The disputed affidavit, on its title page, commenced with the words 'In the District Court of Western Australia' (emphasis added). Apart from that, it recorded the same parties as the Supreme Court cause in the proceedings below and referred to 'CIV 1697 of 2013'. It also referred to it being sworn 'in opposition to plaintiff's application for the summary judgment'.

17 In the disputed affidavit, the appellant deposed that he was one of two shareholders of the lessee. He said that he did not execute the instrument dated 25 February 2010. He said that:

Prior to the instigation of these proceedings, I had never seen the Lease. The two facsimiles with my signature thereon are I believe forged and I have only seen this lease since my solicitors obtained a copy from the Plaintiff's solicitors in November 2013 (par 5).

…

I have been hampered in defending this matter as my previously appointed solicitors were not in my opinion taking care of my interests in this matter adequately, I am based in Newman and actively involved in running my recruitment business there, and in addition to assisting to care for my seven year old disabled son I had a newborn daughter born 2 September 2013 (par 50).

…

I had not examined the lease and guarantee document on which the Plaintiff's [sic] rely, until November 2013 (par 51).

18 The appellant also said, in effect, that the premises the subject of the lease were to be used for a nightclub business in which he had agreed to invest $260,000. He visited the premises from time to time, particularly in its fitout stage. He said that he was asked from time to time to sign certain documents, including the lease and a liquor licence application form, but he did not do so. He also said that after the business had been operating for a few months, he was informed that the lessee could not meet its financial obligations and he advanced $120,000 to keep the business going in the belief that the lessee could trade out of its difficulties. He said that he started to receive telephone calls from creditors and he instructed his then solicitors (Hotchkin Hanly) to obtain a report from a 'forensic consultant' concerning what purported to be his signature on the business name application. He annexed a copy of a report from the 'forensic consultant', Mr Horton, dated 14 April 2013, which stated that in Mr Horton's opinion, the signature on the business name application was not the appellant's signature.

19 The disputed affidavit also annexed an email to the lessor's solicitors dated 21 October 2013. The email stated, relevantly:

I will compile all the evidence I have for my defence over the weekend.

As you can see I have court proceedings against [the second defendant and another] for previous debts that are still outstanding … it was confirmed by an experienced forensic consultant that my signature for the business registration and other credit accounts opened using my name and signature were also forged.

I would like to confirmif it's the case with the lease contract for [the leased premises] as well?? I adamantly only ever wanted to be a shareholder in this venture …

I signed only a handful of forms, and I was reluctant to sign them, but I was pressured and stood over to sign them. …

In the 3 years we had the club, I'd been to there a Dozen times and never seen a cent in returns or dividends. (emphasis added)

The hearing of the summary judgment application on 19 November 2013

20 The application for summary judgment came on for hearing on 19 November 2013. Ms L Horwood appeared for the appellant and Mr D H Solomon appeared for the lessor.

21 It appears that a document had been prepared on behalf of the appellant headed 'Submissions opposing the summary judgment application brought on behalf of the plaintiff', dated 19 November 2013, which had been emailed to the lessor's solicitors on the morning of 19 November 2013. The document referred to the general principles applicable to summary judgment applications. The submission also referred to the disputed affidavit as a basis for resisting summary judgment. Under the heading 'Costs', the submissions also stated:

5. I submit that it is open to the court to conclude that the plaintiff is assumed to have the knowledge that the premises, when first occupied by the [lessee], were not fitted out to a standard that the Plaintiff alleges must be restored as per the lease terms, but in fact were not in a fit state to be used for the purpose of licensed premises and that the quantum claimed in respect of the costs of restoring the premises is not able to be substantiated by the lease terms alone without reference to a property condition report or other evidence as to the state of the premises at the commencement of the lease term.

22 Ms Horwood's typed name, unsigned, appeared at the foot of the document.

23 The lessor also had additional written submissions in a document headed 'Plaintiff's supplementary outline of submissions', dated 19 November 2013. In those submissions, the lessor addressed the matters raised in the disputed affidavit in the following terms, in effect:

(a) the disputed affidavit was objectionable in its entirety because it was not properly witnessed in accordance with s 9(7) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (Oaths Act);

(b) if the disputed affidavit were admitted into evidence, the lessor's application for summary judgment should be adjourned until the lessor obtained, by subpoena, Hotchkin Hanly's file in order to test the suggestion that Hotchkin Hanly had not taken care of his interests and, implicitly, that that was the reason why he had not raised in his plea of defence, or at any earlier time, the asserted fact that he had not executed the lease instrument. In this regard, it was said that by the disputed affidavit the appellant had expressly or impliedly waived legal professional privilege in respect of the Hotchkin Hanly file;

(c) that on hearing a summary judgment of the application, the court was not bound to uncritically accept as raising a dispute every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent. Reference was made to Eng Mee Yong v Letchumanan [1980] AC 331, 341; Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28], and that the 'new defence' that the appellant had not signed the document was inherently unreasonable and incredible in the particular circumstances and history of this case, including that the defence filed on 24 May 2013 was, in effect, an admission of liability save for the 'registered lease' point;

(d) if the disputed affidavit was accepted as evidence at the hearing on 19 November 2013, and if an adjournment was not granted to allow a subpoena to be issued to Hotchkin Hanly to obtain access to their file, the 'new defence' was 'shadowy' and warranted leave to defend being granted subject to a condition that the appellant pay into court a substantial sum or provide other adequate forms of security: Civil Procedure Western Australia [14.4.3].

24 At the hearing on 19 November 2013, Ms Horwood sought leave to rely upon the disputed affidavit.

25 With reference to Hotchkin Hanly's email of 16 July 2013, Ms Horwood said:

[The appellant] has been able to give me instructions as to the waiver of privilege that is said to be a result of including the email that his solicitor, from Hotchkin Hanly had sent to him about the missed meeting. That's annexed to the affidavit, too, and my client is willing for that waiver to apply. Is he [sic: he is] perfectly happy for the file of Hotchkin Hanly to be made available to [the lessor's solicitors]. (ts 6, 19/11/13)

26 The master did not grant leave.

27 The master's reasons, given extempore, were as follows:

This matter was commenced in May 2013 and a statement of claim was endorsed on the writ. A defence to the claim was filed on 24 May 2013 and this summary judgment application was brought on 28 August 2013. It was an application which required an extension of time but one of the factors that was strongly in favour of such an extension being granted is that the defence appeared, on the fact of it at least, to raise no arguable case. It was simply not the case that the defence raised, that was to do with the registration of a lease, could provide any answer to the plaintiff's claim.

Be that as it may, the matter was programmed and at the first return hearing certain orders were made for the filing of affidavits. It would appear that as the matter progressed the solicitors of record for the third defendant - and I should emphasise that the third defendant was at all material times represented by a firm of solicitors - sought to have - let me go back. The solicitors who were representing the defendant at - the third defendant at the time those programming orders were made was subsequently discharged, new solicitors were engaged and those new solicitors sought an extension of time to file answering affidavits.

The time for filing of the affidavit was 1 November. No affidavit was filed on 1 November. In fact, as I understand it, no affidavit has been filed as yet. A document which purports to be an affidavit of the third defendant was received by my associate on 18 November. It would appear that the original of the document was filed in the District Court. Submissions in relation to this matter, filed on behalf of the third defendant, were received by me at 10.30 this morning. So there has simply been no compliance with any of the orders that were originally made or the orders that were amended.

Now, the affidavit itself raises a question as to whether the third defendant signed the lease document, as alleged in the statement of claim. It is worth actually looking at what is said in the statement of claim and in the defence in relation to this matter. The statement of claim is pleaded in entirely conventional fashion. Paragraph 5 reads as follows:


'By written lease dated 25 February 2010, made between the plaintiff as lessor and the first defendant as lessee, the plaintiff leased to the first defendant the whole of the land and all buildings and improvements erected on the land, together with fixtures, fittings, chattels, plant and machinery, for the term of three years, commencing 1 November 2009, expiring 31 October 2012.'

That is what might be called a conventional plea in relation to a lease. It was put squarely before the parties that the lease was signed. Paragraph 7.1 of the statement of claim refers to the guarantee given by the third defendant and it reads:

'The second defendant and the third defendant jointly and severally guaranteed payment to the lessee on demand the whole of the secured moneys as defined earlier in the pleading.'

Now, when the defence was lodged nothing was said about the position of the third defendant and his guarantee. Paragraph 7 of the defence reads:

'Save that the third defendant admits that the document pleaded in paragraph 5 contains a term pleaded in paragraph 7, the third defendant does not admit matters pleaded in paragraph 7 of the statement of claim, and as to paragraph 7.1 says "The lease was not registered on the certificate of title for land upon which the leased premises were situated and by reason of this the lease was not at all law effectual to pass any estate or interest in the land pursuant to section 58 of the Transfer of Land Act".'

It is extraordinary, in my view, that a person who now says that he did not sign the lease should have permitted a document to be filed in his name as a defence to a claim which effectively admits the signing of the lease. Now, I accept that the third defendant is a lay person, is not legally qualified, and I also accept that he lives in Newman and therefore suffers from the tyranny of distance. Be that as it may, this is at the very heart of the allegations made against him. That is to say, the argument that he signed the lease.

If that was to be raised as a defence it defies belief that it should not have been put in a document which was filed in the name of the third defendant. Now, it may be, as appears to be hinted at in the third defendant's affidavit, that there was a breakdown of communication between the third defendant and his solicitors. That is as may be. I still find it difficult to understand how an admission could be made in a defence when the matter was so fundamental to the whole claim against the third defendant.

None of that explains why the timetable for the filing of affidavits was not met. This was an extremely generous timetable at the outset and the plaintiff's solicitors, recognising the difficulties the third defendant was encountering, agreed to an extension of time. So often said that case management is not an end in itself, but the fact remains that at some stage the resources of the Court, the interests of justice require that timetables be complied with.

In this case no real effort has been made to comply with the timetable. No explanation has been provided as to why it was not complied with. It may well be the third defendant is a busy man with business interests which demand his attention. Well, this action demanded his attention and it appears not to have received it. In my view, the third defendant has brought these matters upon himself and I am not satisfied that it would be in the interests of justice to allow the affidavit to be lodged.

In reaching that conclusion I have taken into account what is said in the affidavit, and that is that the third defendant did not sign the document. The handwriting expert, as I understand it, analysed a document other than the lease itself. Quite why that should have been the case I am not sure. In any event, if the document has not been signed, then it would seem to me that instructions to that effect should have been, in fact must have been, given to the third defendant's solicitors.

If there was a failure [to] act on those instructions, and if the matter has gone off the rails because of something that was done by the third defendant's former solicitors, well the third defendant can take that up with them in due course. But so far as this application is concerned, I am not prepared to allow the affidavit into evidence, and accordingly I would dismiss the oral application to rely on the third defendant's affidavit.

28 The master then heard substantive submissions on the summary judgment application, including from Ms Horwood. Ms Horwood distinguished an authority to which Mr Solomon had referred, and said that she should 'remind' the master (ts 11) that the lessor had a duty to mitigate and that the premises had been vacant for some time. She also said that '[w]e don't know what the state of the premises was at the beginning of the lease and I'd submit in those circumstances that damages can't be quantified'.

29 After hearing argument, the master granted summary judgment on the lessor's application on the basis of the lessor's affidavit evidence.

30 The master held that the pleaded defence concerning non-registration of the lease had no merit. He also said, amongst other things:

In any event, the third defendant guaranteed the obligations under the lease, and, in my view, is clearly liable for any damage that was sustained by the plaintiff. In other words, I am not satisfied that any defence has been raised to this claim and it is proper and appropriate that judgment be entered for the plaintiff. The question is what the amount of the judgment should be.

Once again, no evidence has been led on the third defendant and therefore it seems to me that I am in a position where the claim made by the plaintiff against the third defendant must be accepted, save in so far as there is some obvious inconsistency in the figures. In the statement of claim itself the plaintiff pleads by paragraph 13:


'In breach of clause 3.40 of the Lease, the first defendant did not yield and deliver up possession of the premises in good and substantial repair, order and condition, state of cleanliness and decoration consistent with a due and punctual observance and performance by the first defendant by the lessee's covenants.'

The affidavit of Mr Girgis, filed in support of the application, deals with that issue in some detail. It is clear that the claim in the statement of claim is made out. I say that despite the fact there being no evidence put against the plaintiff … [t]he evidence is there and it makes good what is said in paragraph 13. The damages themselves were actually referred to in the particulars to paragraph 16.

The paragraph at particular A deals with the cost of the fit-out and refers to a schedule which is annexed to the statement of claim. The figure that is included in particular A is an amount of $636,358.25. I am satisfied that this is the amount that the plaintiff is entitled to seek. In addition, there is a claim for delay in delivery up of the premises. I was provided with a calculation of liquidated damages which sets out the way in which a figure of $248,933.48 is calculated.

I am satisfied that the claim for the holding over of the premises, if I could put it that way, has been made out.

Events following the judgment

31 The lessor demanded payment of the agreed cost in relation to the adjournment of $374. There was no response to the demand and the sum remains unpaid. Nor has the appellant paid the judgment sum pursuant to the entry of summary judgment. There has been no application for a stay. A report by the sheriff's office dated 4 March 2014 provided to the lessor's solicitors, referred to an attempt to enforce a property (seizure and sale) order by the lessor. The deputy sheriff reported that the appellant had spoken to him and said that he did not have personal property that would be capable of being seized under the order, and that he did not have the capacity to pay the judgment in full at that time.

The appeal

32 On 10 December 2013, the appellant filed an appeal notice, appealing against Master Sanderson's decision to refuse the appellant leave to rely upon the disputed affidavit and the master's decision to enter summary judgment. The appellant's case was filed on 4 February 2014.

33 The appellant's grounds of appeal are to the effect that:

(1) The master erred in law by exercising his discretion to exclude the disputed affidavit.

(2) The master erred in law in exercising his discretion to grant summary judgment in that:


(a) the master ought to have taken into account the evidence in the disputed affidavit; and

(b) the appellant had failed to plead and verify all the facts necessary to make out its claim.


(3) The master erred in law by granting summary judgment of a substantial claim for unliquidated damages that were insufficiently particularised and were not appropriate to be determined summarily.

The security for costs application

34 On 21 March 2014, the lessor filed an application for security for costs, supported by an affidavit by the lessor's solicitor dated 20 March 2014.

35 The solicitor's affidavit in support of the lessor's application for security for costs addressed the history of the litigation. It also annexed, inter alia, three (copy) certificates of title indicating that the appellant is the registered proprietor of three properties, each mortgaged to the Australia and New Zealand Banking Group Ltd. One of the properties is an apartment in Burswood. The other two properties are in Newman in the shire of East Pilbara. The lessor's solicitor also deposed to the effect that the lessor's costs of the appeal are likely to be in the order of $54,000, which includes $2,600 (approximately) for disbursements.

36 In support of its application, the lessor contends that security should be granted for the following reasons. First, the judgment entered against the appellant is presumed to be correct and moreover, the appellant has no reasonable prospects of success in the appeal. The appellant placed particular emphasis on the relevance, to the master, of the operation of case flow management principles and referred to AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 [5], [102]; Brocx v Hughes [2010] WASCA 57 [93]. Secondly, the appellant has not paid the judgment sum and an agreed cost amount, despite demand. Thirdly there are reasonable grounds for doubting the appellant's ability to pay the lessor's costs of the appeal.

37 On the question of the presumed correctness of the judgment below and the merits of the appeal, the lessor points out that the master found that the appellant provided no cogent explanation for the very late filing of the disputed affidavit. The lessor refers in this regard to Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 [44].

38 The lessor also contends that even if the lateness of the disputed affidavit was ignored, it was not made as required by statute as it was witnessed by the appellant's then solicitor on the court record and accordingly, could not have been received as an affidavit by the court: s 9(7) of the Oaths Act; Frayson Pty Ltd v Stirfry Enterprises Pty Ltd [2008] WASC 301; (2008) 223 FLR 342 [2], [17]. The lessor says that this matter would be raised by way of notice of contention in the appeal.

39 Sections 8 and 9 of the Oaths Act provide, relevantly:

8. Meaning of 'experienced legal practitioner'

In this Part -

experienced legal practitioner means a person who is, and has been for at least 2 years, an Australian legal practitioner (within the meaning of that term in the Legal Profession Act 2008 section 3).

…


9. Affidavits, how made

(1) Unless another written law provides otherwise, an affidavit for any purpose in this State must be made in accordance with this section.

(2) The affidavit must conclude with a statement that says -


(a) it is sworn or affirmed, as the case requires, by the person making it in the presence of anauthorised witness; and

(b) where and when it is sworn or affirmed.


(3) The person who is making the affidavit must -

(a) sign or personally mark the statement required by subsection (2) and each other page of the affidavit;

(b) sign or initial any alteration, such as an insertion or erasure, that has been made to the affidavit; and

(c) in the presence of anauthorised witness, say orally on oath or orally affirm -


(i) that he or she is the person named as the maker of the affidavit;

(ii) that the contents of the affidavit are true;

(iii) that the signature or mark is his or hers; and

(iv) if necessary, that any attachment to the affidavit is the attachment referred to in it.

…

(5) After the maker has complied with subsection (3)(c), theauthorised witness must -


(a) under or near the statement required by subsection (2) -

(i) sign or personally mark the affidavit; and

(ii) imprint or clearly write his or her name and qualification as an authorised witness;


(b) sign or personally mark each other page of the affidavit; and

(c) sign or initial any alteration in the affidavit that has been signed or initialled by the maker.


(6) An authorised witness for an affidavit that is made at a place within Western Australia is -

…

(b) an experienced legal practitioner, unless excluded by subsection (7);

…


(7) An experienced legal practitioner who has participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used, is not an authorised witness for the affidavit.

…

(9) Subsections (6), (7) and (8) do not affect any other written law that expressly provides for an affidavit to be made before a person other than a person referred to in the subsections. (emphasis added)

40 The disputed affidavit, on its face, records that it was 'prepared by' Alison & Associates.

41 In response to the lessor's allegation to the effect that the disputed affidavit was incapable of being received by reason of s 9(7) of the Oaths Act, the appellant filed an affidavit, sworn 8 April 2014, by Alison Aldrich, the principal of Alison & Associates.

42 Ms Aldrich deposed:

1. I am a [sic] Owner/Director of the law firm Alison & Associates (Legal) Pty Ltd.

2. On 14 November 2014, [sic: 2013] I witnessed [the appellant] swear an affidavit titled in District Court proceedings CIV 1697, in which [the appellant] was the third defendant. …

3. I did not participate the preparation of [the appellant's] affidavit [sic] … [n]or did I act in the proceedings in which the affidavit was titled, or in any proceedings in which [the appellant] was a party.

4. A consultant solicitor I had engaged at the time, Ms Louise Horwood, had conduct of any work Alison & Associates performed for [the appellant]. To the best of my knowledge, information and belief it was Ms Horwood who prepared the affidavit [of the appellant] referred to in paragraph 2 of this affidavit.

5. I recall that Ms Horwood was assisted in the matter by an Alison & Associates (Legal) Pty Ltd law clerk, Mr Martin Fletcher.

6. Ms Horwood did not have an Alison & Associates email account and used my email account to send correspondence to the other parties' solicitors.

7. I have been shown a minute of consent orders, a true copy of which I attach hereto and mark with the letters 'AJA-2'.

8. I confirm that the signature on that minute is mine, although I do not remember signing this specific document.

9. It is my practice to sign all documents leaving Alison & Associates (Legal) Pty Ltd personally, whether or not I have conduct of the matter. I believe that it is for that reason that my signature appears on the Minute of Consent Orders mentioned in paragraph 7 of this affidavit.

43 With respect to par 1 of the affidavit of Ms Aldrich, counsel for the appellant said that this was to be read on the basis that she was the only director/owner of Alison & Associates.

44 In reply to Ms Aldrich's affidavit, the lessor's solicitor, Mr Slack-Smith, filed a further affidavit, dated 24 April 2014, attaching a copy of a register of disciplinary action from the Legal Practice Board of Western Australia. The record indicates that a 'Louise Horwood' was the subject of a disciplinary action decision on 26 April 2013, in which she was found guilty of professional misconduct and unsatisfactory professional conduct. A copy of the orders of the State Administrative Tribunal in relation to such disciplinary action on 26 April 2013 included:

5. In respect of the finding of unsatisfactory professional conduct, for a period of 3 years after the date of this order, the practitioner must not:

(i) subject to paragraphs 6 and 7 below, commence or have the ongoing conduct of contentious proceedings (including appeals) in the District Court of Western Australia, the Supreme Court of Western Australia or the Federal Court of Australia, or continue to act in any such proceedings, unless independent counsel has been briefed:

(a) to advise as to the merits of the appeal, claim or defence and the steps to be taken in preparation for trial, final hearing or appeal; and

(b) to settle pleadings and any submissions (including but not limited to an appellant's case or respondent's answer) in any such proceedings; and


(ii) appear as counsel in any appeal, trial or final hearing in the District Court of Western Australia, Supreme Court of Western Australia or the Federal Court of Australia.

…

7. The limitation in par 5(i) does not apply when and to the extent that the practitioner is practising law as an employed solicitor in the employment of and supervised by a practitioner approved in writing by the Legal Practice Board (being a person who has no less than 5 years post-admission experience).

45 The affidavit of Mr Slack-Smith also deposed to communications with Ms Aldrich indicating Ms Aldrich's involvement in the litigation on behalf of the appellant.

46 In submissions in opposition to the application for security, counsel for the appellant said that the presumption that the judgment below was correct had no real weight in this case, because the master's decision deprived the appellant of the opportunity to raise an arguable defence and, accordingly, the appellant did not really have his day in court. Counsel for the appellant also said that the order for summary judgment worked a substantial injustice as the appellant was denied a proper opportunity to defend the lessor's claim on its merits. It was said that the appellant was deprived of a 'fundamental right afforded to him by the justice system, being the right to be heard on a matter that adversely affected his interests'. Reference was made to Mann v Dabelstein [2006] WASCA 176 [16] - [17].

47 With respect to grounds 1 and 2(a), in relation to error of the kind required to be established in accordance with House v The King [1936] HCA 40; (1936) 55 CLR 499, the appellant's case, as I understood it, was and would be that the master's decision contained the following express errors:

(a) the master erred in law in considering case management principles when they had no potential application here because the master was dealing with a late application for summary judgment, and there was no prospect, for example, that a trial would be 'derailed' if the evidence were admitted;

(b) the master erred in law by failing to take into account relevant considerations, namely that the appellant had deposed that he had not executed the instrument and the adverse effect on the appellant if the disputed affidavit were not received into evidence; and

(c) the master erred in law in that he had rejected the appellant's evidence in the disputed affidavit that the appellant had not executed the instrument, on the basis that the master had formed, or he believed that a trial court would form, an adverse opinion as to the appellant's credibility on that issue.

48 Although it was not put this way, I will assume for present purposes that the appellant would also seek to contend, in the alternative, that if those express errors were not established, the Court of Appeal should infer error from the result on the basis that (as the appellant might seek to contend) the result was 'plainly unjust' or 'unreasonable', and 'a substantial wrong has in fact occurred' (House (505)).

49 The appellant also says that it was not suggested by the lessor that had the master received the disputed affidavit, any delay or prejudice would have been caused to the lessor. The appellant says that it was not suggested by the lessor that the lessor was not in a position to make submissions on the contents of the disputed affidavit without adjournment on 19 November 2013. It is said that there could have been no basis for an adjournment if the disputed affidavit had been received into evidence on 19 November 2013.

50 On the question of whether the master could have received the disputed affidavit in any event in light of s 9(7) of the OathsAct, the appellant contended that the effect of s 16 of the Oaths Act is that the disputed affidavit is not invalid and that, in any event, Ms Aldrich had sworn that she did not participate in preparing the disputed affidavit and did not act in the proceedings below.

51 Counsel for the appellant also asserted, in effect without explanation, that the appellant had good prospects on grounds 2(b) and 3 (alleging an inadequate pleading or verification of necessary facts, and an insufficient particularity with respect to damages).

52 Counsel also said that any order for security for costs is likely to frustrate the appeal.

Disposition

53 The court's discretion is unfettered, although it must, of course, exercise its discretion judicially. 'Special circumstances' do not have to be shown. See Ailakis v Olivero [2013] WASCA 91 [1] - [11]; Willoughby v Clayton Utz [2008] WASCA 93 [13]; Dodds v Kennedy [2011] WASCA 32 [7]. A number of the relevant considerations have been canvassed in Willoughby [14] - [16] and in Dodds [8] - [9], [15] - [16], [18(c) - (d)]. They include, relevantly:

(a) the respondent to an appeal who applies for security is in a stronger position than a defendant at first instance, to the extent that the respondent has a judgment in his or her favour which is presumed to be correct until displaced;

(b) the appellant's prospects of success on appeal;

(c) the appellant's financial position with respect to his or her ability to meet an adverse costs order in the appeal, although as a general rule the court would not order security against an individual appellant solely on the ground of impecuniosity; moreover, if the impecuniosity is attributable to the respondent, that factor may weigh against an order for security; and

(d) the appellant's non-compliance with an earlier relevant cost order in favour of the respondent, at least to the extent that the non-compliance is not adequately explained.

54 As to the first consideration, it is true that there has been no hearing on the merits as summary judgment has been ordered. On the other hand, the appellant was given the opportunity to file affidavits and submissions to show cause why summary judgment should not be ordered, and it was his non-compliance with the court's orders in that regard which led to the master's decision in relation to the disputed affidavit.

55 As to the second matter, the decision challenged in grounds 1 and 2(a) of the appeal, to which most of the appellant's submissions in the appellant's case are directed, was an interlocutory decision. In substance, it concerned whether the appellant should have leave to file and serve an affidavit in response to the summary judgment application out of time. A tight rein is ordinarily kept on appellate interference in relation to decisions on practice and procedure, subject, of course, to questions of injustice. The master found as a fact that there was no adequate explanation for the delay, and that finding does not appear to be challenged in the appellant's case as filed.

56 My preliminary view is that the appellant will have difficulty establishing express error. As to the appellant's first complaint in this regard, it is difficult to see that the principles of case management could have no application to interlocutory matters, including summary judgment applications, in a busy master's court. As to the second matter, it is prima facie difficult to see that the master failed to recognise that the appellant had deposed that he had not executed the instrument when that was the principal basis upon which Ms Horwood had submitted that the disputed affidavit should be received and the master addressed that application in terms. It is also prima facie difficult to see that the master omitted to advert to the adverse effect on the appellant of refusing to admit the disputed affidavit into evidence. The master said that he had 'taken into account what is said in the affidavit'. Also, again, Ms Horwood's submission had emphasised the significance of the affidavit in that regard from the appellant's point of view (ts 4 - 5, 19/11/13).

57 As to the third alleged express error, as I understand the master's reasons, he did not reject the appellant's evidence that he did not execute the lease instrument on the basis that the appellant's evidence was not credible or that a trial court would find that his evidence was not credible.

58 As I understand the master's reasons, he found that there was no, or at least no proper, explanation for the delay in filing and serving the disputed affidavit in which the defence was raised for the first time that the lease instrument had not been executed by the appellant. That finding was made in the context that the appellant had no more than 'hinted' that there had been a breakdown between him and Hotchkin Hanly and that a breakdown had led to him not previously asserting a defence to the effect that he had not executed the instrument.

59 I understand the master's reasons to be to the following effect. Despite the breakdown of communication 'hinted' at in the disputed affidavit, on the material before him, it might be inferred that either he had not instructed Hotchkin Hanly that he had not executed the lease, or that he had instructed Hotchkin Hanly to that effect, but they had failed to act on his instructions. As I understand it, he was not persuaded that either potential inference provided a proper basis for the favourable exercise of his discretion in the particular circumstances of this case. With respect to the former potential inference, it appears that the master considered that the appellant's evidence that he had 'not seen' the lease until November 2013 would not, in the circumstances, provide a sufficient explanation as to why he had not (if he had not) instructed Hotchkin Hanly that he had not executed the lease. It appears that the master considered that this was particularly so in circumstances where the appellant, over a month before the defence had been filed, had obtained a handwriting report with respect to an apparent concern that he had not signed the business name application.

60 The decision of Mann, to which the appellant referred, was a case in which a defendant, at a time when he was represented by solicitors, filed a defence and responded to an application for summary judgment by the plaintiff. He was given unconditional leave to defend, but was required to serve an amended defence within a certain time. He failed to do so and his solicitors later filed a notice ceasing to act, with the result that he was then left to act in person. The defendant then attended a status conference in which the registrar ordered that the (unamended) defence be struck out and the plaintiff have leave to move for judgment, unless the defendant filed an amended defence by a certain date. The plaintiff subsequently applied by notice of motion for judgment, and that application came on for hearing. The defendant failed to attend the hearing and the acting master, in his absence, ordered judgment for the plaintiff with damages to be assessed. The defendant then made a belated application to extend the time to file and serve an amended defence, supported by an affidavit, explaining his non-attendance when judgment was entered against him in his absence, and explaining that he had earlier served a 'revised' defence and had attempted to file it at the court, but it was rejected for filing at central office. The defendant subsequently appealed the acting master's decision and applied for a stay. The plaintiff applied for an order for security for costs. McLure JA (as her Honour then was) found that the evidence established that there would be serious consequences to the appellant if a stay was not granted [11]; that the basis of the appeal was that 'through no fault of his own' the appellant 'was deprived of the fundamental right to be heard on the [plaintiff's] application for judgment' [12] and that there was, in consequence, a miscarriage of justice; that not all the costs associated with the assessment of damages would be wasted and that, moreover, any costs prejudice caused by the fact that the plaintiff was suing an impecunious defendant, would arguably have less weight in light of any proven miscarriage of justice [13]. Her Honour found that the appellant had reasonable prospects of success and, having regard to the nature and merits of the appeals and the potential costs prejudice to the parties if the assessment of damages continued, the balance of convenience favoured the grant of a stay [14]. As to security, her Honour found that the rejection of the plaintiff's summary judgment application demonstrated that he had an arguable defence and that the evidence disclosed that he did not have the financial capacity, 'or access to funds', to enable him to provide any security for costs, and that an order for security would frustrate a 'genuine appeal that has reasonable prospects of success'. Her Honour also found that the appellant's failure to satisfy outstanding costs orders was a consequence of the plaintiff commencing proceedings against impecunious parties and that the balance of convenience required the court to refuse an order to give security for costs [17].

61 It would seem to me to be difficult to contend that that decision provides any real assistance to the appellant, at least insofar as the circumstances in that case appear markedly different from the circumstances relevant to the master's decision under appeal in this case. In this matter, the appellant appears to have been (save for 15 days in October 2013) at all material times legally represented; there was never any finding that before judgment was entered, he had a defence on the merits to the summary judgment application; and he was legally represented in court when the summary judgment application was heard and it did not proceed in his absence. Also, the effect of the master's findings is that he did not accept that the appellant's difficulty in adducing evidence in the form of the disputed affidavit arose 'through no fault of his own'.

62 It is also difficult to accept, on the evidence before me, the appellant's submission to the effect that it was not suggested by the lessor that the late service of the disputed affidavit would prejudice its ability to advance the summary judgment application on 19 November 2013, or that the lessor had not suggested that it could not adequately deal with the disputed affidavit. It appears to me that the lessor's submissions of 19 November 2013 are to the effect that if the evidence were let in, the lessor would seek an adjournment to make submissions, with the benefit of the Hotchkin Hanly file, to the effect that the appellant's evidence that he had not signed the lease was not inherently credible having regard to undisputed contemporaneous documents or other statements made by him (presumably to be obtained by reference to the documents in the file). As to the genuineness of the defence, the file might also be arguably relevant to the contention that the defence was, at least, 'shadowy', and that any leave to defend should be granted on certain conditions. The submissions of Ms Horwood, referred to in [25] above, would seem to me to involve an acceptance that if she were permitted to adduce evidence by the disputed affidavit, the lessor ought to have the opportunity, within the limited parameters of the summary judgment application, to test the genuineness of that defence by reference to the Hotchkin Hanly file. My impression is that Ms Horwood considered that she was not in any real position to oppose an adjournment, in all the circumstances, if the disputed affidavit had been let in.

63 Whilst I plainly am not in a position to determine, in any concluded way, whether grounds 1 and 2(a) of the appeal as articulated have reasonable prospects of success, my preliminary impression is that they are not, objectively, without their difficulties. If and to the extent that inferred error is alleged, I would accept that such a contention would be fairly arguable and may have reasonable prospects.

64 However, other factors remain to be considered, including, in relation to prospects, the question that the master did not decide. That is, the question of whether the master could have received the affidavit in any event having regard to s 9(7) of the Oaths Act.

65 Ms Aldrich's affidavit leaves much to be desired in terms of (at least) its cogency. I am not prepared to give any real weight to the second sentence of par 3 and par 4 of the affidavit for the purposes of this application. There is no evidence as to the nature and scope and terms of the alleged engagement by the appellant of Alison & Associates (including whether it was a term that Ms Aldrich would act or supervise in the litigation), nor of Alison & Associates' engagement of Ms Horwood (including the extent to which Ms Horwood would act independently of and without reference to Ms Aldrich). Nor is Ms Aldrich's 'belief' that Ms Horwood prepared the disputed affidavit sourced. Notably she omits to say that her law clerk, Mr Fletcher, or Ms Horwood, is the source of that belief. Insofar as she says that she did not 'act in any proceedings in which … [the appellant] was a party', much more detail would, in my view, be required before that could safely be accepted at face value. That is particularly so where her firm was on the record, she was the sole owner/director of the firm, the disputed affidavit on its face was said to be prepared by her firm, and it appears from the remainder of her affidavit that she at least signed the consent orders by which the appellant obtained the adjournment on 29 October 2013. I would not, presently, see that Ms Aldrich's evidence is in substance in any material conflict with that of Mr Slack-Smith.

66 Nor is it obvious that s 16 of the Oaths Act would operate with the effect that the disputed affidavit was not invalid. Section 16(1) does not appear to have any application here. Section 16(2) appears to be addressed to the question of whether the required procedure for taking or making an affidavit has been followed 'substantially' if not 'exactly'. Section 9(7), arguably at least, may not be addressing mere procedure, nor does it prima facie appear capable of being complied with 'substantially' as opposed to 'exactly'. My present preliminary impression is that the appellant's prospects may be materially disadvantaged in relation to this issue.

67 In relation to grounds 2(b) and 3, scant, or more correctly, fleeting, attention was paid to those grounds in the hearing of this application. My observations will similarly be short. As to ground 2(b), the appellant makes three points. First, it is said that the lessor failed to allege or verify that the appellant was a party to the instrument. As to this, my preliminary view is that it would be difficult to construe the statement of claim as other than an assertion that the appellant was a party to the instrument. It may also be difficult to assert, successfully, that the lessor had not proved that fact through Mr Girgis annexing the apparently executed lease instrument absent any evidence to the contrary (and for present purposes the hypothesis is that ground 2(b) is to be considered separately and on the basis that grounds 1 and 2(a) do not succeed). The second point raised in relation to ground 2(b) is that the lessor did not allege or verify demand for payment pursuant to cls 9.1 and 9.12 of the lease. It is not clear to me how this argument will be addressed in light of the demand referred to in [7] above. It also appears to be an argument not advanced to the master. The third point in relation to ground 2(b) is that the lessor did not allege or verify sufficient facts to give rise to a claim for repair to the premises. It is not clear to me at this point why it was not open to the master to act upon the affidavit evidence of Mr Girgis. As to ground 3, the complaint seems to be that even if summary judgment might properly have been entered on liability, it ought not to have been entered on damages and that the master should have ordered a trial of the assessment of damages. That submission does not appear to have been advanced to the master at the time.

68 I would also take into account the non-payment of the costs of $374 with respect to the adjournment of the hearing on 29 October 2013. Despite demand, there has not only been non-payment but no response at all has been given to the lessor's solicitors.

69 On the general question of impecuniosity, whilst that is not a sufficient ground in itself upon which to order security, it nevertheless is a relevant consideration, the effect of which is not diminished, in this case, by any suggestion that the lessor has been the cause of any impecuniosity. On balance, and in the absence of any evidence from the appellant on this issue, I am satisfied that the appellant has adduced sufficient evidence to indicate that there is a real risk that the appellant will be unable to meet an order for costs against him out of his own assets.

70 That does not mean that I am satisfied that the appeal will be stifled if an order for security for costs is made. Whilst there is the risk to which I have referred I would not infer that he presently has no access to funds, by borrowing or otherwise, for the purpose of running this appeal. There is no affidavit from the appellant to that effect and no evidence, for example, that the appellant's solicitors and counsel are acting pro bono or on a 'no win no fee' basis. I am unable, on the evidence before me, to accept the submission by the appellant's counsel to the effect that the appeal is likely to be frustrated if security is ordered.

71 Accordingly, in all the circumstances of this case, in my opinion security should be ordered. However, the sum of $54,000 sought by the lessor requires consideration. On the lessor's evidence it assumes, inter alia, that the time for the first respondent's answer will be approximately 80% of the maximum amount provided for under item 23(b) of the relevant scale. It also assumes a hearing day of eight hours, plus 16 hours preparation by a senior practitioner and a further eight hours of work by a junior practitioner. It also assumes that there will be a junior practitioner attending the appeal for eight hours. At the hearing of this application, counsel for the lessor said that those figures were likely to be understated, as there would be a factual issue in the appeal requiring investigation based on Ms Aldrich's affidavit to the effect that she did not act in the proceedings below.

72 Having considered carefully the lessor's draft bill of costs, the appellant's case and the arguments raised before me in the present application, I am not satisfied that costs will be in the order claimed by the lessor. On the question of Ms Aldrich's affidavit, as I have said, as things presently stand, I doubt that it will raise any significant factual dispute that needs to be decided or that will be in contest. In my view, the appeal is of much narrower scope and magnitude than that contended for by the lessor. On my view of the scope and magnitude of the appeal, I would think that the lessor is entitled to approximately one third of the costs claimed by way of security, plus disbursements. I also take into account that the court does not generally set out to give a complete indemnity to the respondent: Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171, 175. Accordingly, I think an appropriate amount would be (with rounding) $20,000.

73 Subject to hearing from the parties, the appropriate orders would be along the following lines:

1. The appeal be stayed against the first respondent until the appellant pays $20,000 into court as security for costs.

2. The appellant provide the first respondent with notice of the payment of security into court pursuant to order 1.

3. The time for the first respondent to file and serve the first respondent's answer to the appellant's case be extended until 21 days after the payment and notice referred to in orders 1 and 2.

4. The appellant pay the first respondent's costs of the application for security for costs filed 21 March 2014 in a sum to be fixed.