Bria v Wilson - [2020] VSCA 338

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bria v Wilson

Details

AGLC: Umilo Bria v Peter Wilson [2020] VSCA 338
Case: [2020] VSCA 338
Decision Date: 22 December 2020

CaseChat Overview and Summary

The case of Bria v Wilson involved a dispute between the applicant, Bria, and the respondent, Wilson. The matter was heard in the Supreme Court of New South Wales, where the respondent sought an order for security for costs under the Supreme Court (General Civil Procedure) Rules 2015. The respondent argued that there was a significant risk that the applicant would not meet a costs order, given the low prospects of the applicant’s application for leave to appeal succeeding.

The legal issue before the court was whether the respondent should be ordered to provide security for costs in the amount of $60,000. The court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 and relevant case law, including Robinson Helicopter Co Inc v McDermott and Lee v Lee. The court also considered whether the order for security would prevent the applicant from proceeding with their application for leave to appeal. The court found that the applicant had low prospects of their application for leave to appeal succeeding and that there was a significant risk that they would not meet a costs order. The court also noted that it was not contended that the order for security would prevent the applicant from proceeding with their application for leave to appeal.

The court ordered that the applicant provide security for costs in the amount of $60,000. The court found that the order was necessary to protect the respondent from the risk of the applicant not meeting a costs order. The court also found that the order was proportionate to the risk posed by the applicant not meeting a costs order. The court noted that the order was not intended to prevent the applicant from proceeding with their application for leave to appeal.

No further orders were made.

Orders