Bria v Wilson
[2020] VSCA 338
•22 December 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0084
| UMILO BRIA | Applicant |
| v | |
| PETER WILSON | Respondent |
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| JUDGES: | EMERTON and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 December 2020 |
| DATE OF ORDERS: | 3 December 2020 |
| DATE OF REASONS: | 22 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 338 |
| JUDGMENT APPEALED FROM: | [2020] VCC 853 (Judge Lewitan) |
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PRACTICE AND PROCEDURE – Costs – Application by respondent for security for costs – Low prospects of applicant’s application for leave to appeal succeeding – Significant risk that applicant will not meet costs order – Not contended that order for security will prevent applicant proceeding with application for leave to appeal – Applicant ordered to provide security for costs in the amount of $60,000 – Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, Lee v Lee (2019) 266 CLR 129, applied – Supreme Court (General Civil Procedure) Rules 2015 r 64.38(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr Z Partos | Vinci Solicitors & Conveyancers |
EMERTON JA
SIFRIS JA:
The applicant, Mr Bria, has applied for leave to appeal a decision of Judge Lewitan made on 22 June 2020.[1] Judge Lewitan ordered the applicant pay the respondent, Mr Wilson, $258,824.80 for unpaid services arising from an agreement under which Mr Wilson was to provide agistment, horse husbandry and stallion servicing to Mr Bria in respect of 5 mares.[2]
[1]Peter Wilson trading as Sutket Farm v Umilo Bria [2020] VCC 853 (Judge Lewitan) (‘Reasons’).
[2]Ibid [127].
Mr Wilson made an application for security for costs of the application for leave to appeal and any appeal pursuant to r 64.38(2) of the Supreme Court (General Civil Procedure) Rules 2015.
The application for security for costs was heard by this Court on 3 December 2020 and we determined that an order for security should be made. These are our reasons for the making of that order.
Background
By application made on 19 October 2020, Mr Wilson sought orders as follows:
(a) an order that Mr Bria give security for the costs of the application for leave to appeal and any appeal;
(b) an order that the proceeding be stayed until security is given; and
(c) an order that if Mr Bria fails to comply with the order to provide security within the time specified in the order that the application for leave to appeal be dismissed.
Mr Wilson’s application was supported by the affidavit of Frank Patrick Vinci made on 19 October 2020 deposing as to the course of the trial below and to Mr Bria’s circumstances. He also deposed briefly as to Mr Wilson’s circumstances, which include his age and his and his wife’s health issues. Mr Vinci deposed that the proceeding has caused Mr Wilson and his wife significant emotional and financial stress. Mr Vinci’s affidavit exhibited an expert costs consultant report prepared by Sergey Sizenko of Victorian Legal Costs Assessors dated 15 October 2020 as to the likely amount of Mr Wilson’s costs of the application for security for costs and the application for leave to appeal. Mr Sizenko estimated Mr Wilson’s total costs (including costs already incurred) to be $77,408.80.
Mr Wilson applied for security for costs on two principle bases: first, Mr Bria’s poor prospects of success on appeal; and, secondly, the risk that Mr Bria will not be in a position to satisfy any costs order that is made against him in the application for leave to appeal or the appeal.
Mr Bria filed a notice in opposition in which he asserted that the value of his assets exceeds his liabilities and that he is not impecunious. However, he did not put on any evidence to counter the evidence in Mr Vinci’s affidavit as to his financial circumstances and as to his willingness to satisfy his debts.
Mr Bria further asserted that his appeal has strong merits and set out, in substance, his grounds of appeal. He alleged that Mr Wilson’s application for security for costs was simply an attempt to stifle the appeal and prevent him from having his day in the Court of Appeal, and he submitted that the application for security for costs was an abuse of process. However, Mr Bria did not say that he would not be in a position to pursue the appeal if he was required to put up the security that was sought.
Analysis
We turn to the first matter raised in Mr Vinci’s affidavit and relied upon by Mr Wilson; that is, Mr Bria’s ability to meet any costs order. The unchallenged evidence of Mr Vinci was that while Mr Bria has interests in two properties in South Australia, the interest in one is relatively small and the other property is listed for sale. It is mortgaged and subject to a caveat claiming an equitable interest over the whole of the land. Mr Bria, as we have indicated, has not put on any evidence as to the value of his interests in either of these properties.
The judgment below records that Mr Bria reached an agreement with Mr Wilson to defer payment of the amounts owing pending realisation of his interest in a property development in Ceduna.[3] The judge found that in September 2016, Mr Bria told Mr Wilson that he would be receiving a deposit cheque for the sale of property in Ceduna the following week, with settlement the following month, but when he received the deposit cheque and Mr Wilson asked for a small portion of the amount owing to him Mr Bria said, ‘I can’t help you till I get the settlement funds’.[4]
[3]Ibid [30].
[4]Ibid [36].
The judge found that Mr Bria strung Mr Wilson along, particularly in relation to the realisation of his interest in the Ceduna property, despite making three assurances that payment would be made for Mr Wilson’s services and she found that he became non-communicative in late 2016 when Mr Wilson tried to recover the debt.[5]
[5]Ibid [123].
It transpires that Ceduna Keys is now under external administration. A liquidator was appointed on 4 December 2018. A report to creditors dated 15 July 2020 shows secured creditors have been paid the amount of $212,163.88 from the sale of properties, plant and equipment leaving unsecured creditors in the amount of over $2 million.
In the circumstances there is good reason to believe that Mr Bria will be unable and/or unwilling to satisfy any further order for costs that is made against him.
This has to be seen in the context of Mr Bria’s prospects of success on appeal.
The Court’s assessment of the merits of the appeal is limited by the nature of the security for costs application. This is especially so where, as here, the proposed appeal challenges many factual findings made after a six-day trial. The Court did not have all the necessary materials, including the transcript below, before it. In these circumstances, the Court adopts a broad-brush assessment of the merits of the appeal and must be careful not to express a considered view as to whether leave to appeal should be granted.
It is evident, however, that the grounds of appeal focus on the factual findings of the judge below. The review of the factual findings by this Court is subject to appellate restraint in accordance with the principles articulated in Robinson Helicopter Co Inc v McDermott[6] and Lee v Lee.[7] Factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence should not be interfered with unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[8]
[6](2016) 331 ALR 550; [2016] HCA 22 (‘Robinson Helicopter’).
[7]Lee v Lee (2019) 266 CLR 129; [2019] HCA 28.
[8]Robinson Helicopter (2016) 331 ALR 550, 558–9 [43]; [2016] HCA 22 (French CJ, Bell, Keane, Nettle and Gordon JJ).
In this case many of the findings below were based on the judge’s assessment of the evidence given by Mr Wilson and Mr Bria, along with the evidence given by a witness, Mr Maher, in support of Mr Wilson’s case. Her Honour said,
I found Wilson to be a straightforward and truthful witness. He answered questions directly and frankly to the best of his ability. He was prepared to make concessions. His evidence is largely consistent with the cheques and the written documents. I accept Wilson’s evidence that in the period from 2007 to 2016, the defendant never expressed concerns in relation to the invoices and never questioned an account.[9]
[9]Reasons [44].
In relation to Mr Maher her Honour said,
I found Maher to be a straightforward and truthful witness. His evidence is largely consistent with the written documents. I accept Maher’s evidence that the defendant told Maher that he would be able to pay the plaintiff the full amount of money that the plaintiff was owed once the Ceduna development was completed.[10]
[10]Ibid [30].
In contrast, her Honour found Mr Bria to be a witness who would say what he thought would assist his case rather than give a truthful and accurate account of the facts.[11]
[11]Ibid [24].
In these circumstances many of the grounds of appeal face a very steep hurdle.
As to the proposed ground of appeal based on the ‘Stallion Service Contract’, the judgment itself records that the contract was admitted by Mr Bria.[12] As for the ground which appears to suggest that the judge failed to impose penalties or other consequences as a result of a breach of the Australian Consumer Law andFair Trading Act 2012 by Mr Wilson, the judge in fact found for Mr Bria in relation to breach, but did not accept his evidence as to loss.[13] She went to some trouble to consider whether Mr Bria’s evidence qualified as expert evidence for the purpose of establishing losses from the destruction of the horses, but decided that it did not and that Mr Bria did not have any admissible evidence as to loss.[14] So far as we can tell, Mr Bria does not challenge that decision.
[12]Ibid [6].
[13]Ibid [115].
[14]Ibid.
Insofar as errors of procedural fairness are alleged based on Mr Bria’s status as a self-represented litigant, we observe that the judge was concerned that Mr Bria had not put on any evidence in support of his counterclaim and invited him to do so, first, by giving additional evidence orally and then by affidavit. It was her Honour who identified the relevance of part 4.2 of the Australian Consumer Law and Fair Trading Act 2012, which provided the basis for her holding in Mr Bria’s favour that Mr Wilson should have applied to the Court for permission to destroy the horses.
It appears to us that Mr Bria received considerable assistance from the judge. As Mr Partos has pointed out, the Notice of Appeal and Mr Bria’s written case do not say what assistance should have been provided but was not.
Having regard to the hurdles that Mr Bria faces making out his grounds of appeal, the significant risk that he will not meet any costs order against him, and the fact that he did not assert that an order for security will prevent him from proceeding with his application for leave to appeal, we ordered that Mr Bria be required to provide security for costs in the amount of $60,000 on or before 4:00 pm on 23 December 2020.
We made consequential orders staying the proceeding pending payment and ordering that the proceeding be dismissed if security is not provided by that date.
The $60,000 is less than the amount estimated in the expert report of the costs consultant obtained by Mr Wilson, but in determining a sufficient amount of costs the Court does not undertake a precise mathematical calculation. It adopts a broad-brush approach. The amount ultimately fixed must not be so low that it fails to provide any real protection to the party seeking security or so high that it is oppressive to the party who must pay it. The amount must be just and reasonable in all of the circumstances of the case. We consider that $60,000 is an appropriate figure in the circumstances.
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