Cassaniti v Katavic - [2022] NSWCA 230

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cassaniti v Katavic [2022] NSWCA 230
Hearing dates: 7 November 2022
Date of orders: 10 November 2022
Decision date: 10 November 2022
Before: Macfarlan JA
Decision:
(1)   Order the appellants to provide security for the respondents’ costs of and incidental to the concurrent hearing of the appeal and the application for leave to appeal by payment into Court of the sum of $75,000 (including GST) within 10 working days of the making of this order.
(2)   To the extent that the second respondent is restrained by the undertaking, proffered during the hearing in the Court below, from using funds paid into Court to pay its reasonable legal costs of defending the appeal proceedings, order that the second respondent be released from that undertaking.
(3)   Order that the funds held in Court for Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, be paid out of Court to the trustee, in such amounts as the trustee states to the Registrar of the Court that it considers necessary and appropriate for payment of its reasonable legal costs of the appeal proceedings.
(4)   Order that the parties’ costs of the respondents’ notice of motion be costs in the appeal.

Catchwords:
APPEAL – security for costs of appeal – UCPR r 51.50 – “special circumstances” found to exist – one appellant acting as representative only – evidence and findings of fraudulent activity of other appellant – doubt that appellants could satisfy adverse costs order

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Cases Cited:
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
In the matter of Australian Style Holdings Pty Ltd as trustee of The Australian Style Investments Unit Trust [2018] NSWSC 1368
The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157

Category: Procedural rulings
Parties:
Sam Cassaniti (First Appellant)
Nancy Morvillo (Second Appellant)
Dennis Katavic (First Respondent)
Antalija Developments No 4 Pty Ltd (Second Respondent)
Jocelyn Katavic (Third Respondent)
Representation:
Counsel:
D Allen (Appellant)
T Alexis SC / A Oakes (Applicant/Respondent)
Solicitors:
McEvoy Legal (Appellant)
Kamy Saeedi (Respondent)

File Number(s): 2022/204856
2022/261720
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 519

Date of Decision:

2 May 2022

Before:

Robb J

File Number(s):

2019/00372019

JUDGMENT

This is an application by the respondents to an appeal for an order that the appellants provide security for the respondents’ costs, and for other orders. The appeal is against the decision of Robb J in Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd [2022] NSWSC 519 dated 2 May 2022. Two days have been reserved for its hearing, being 27 and 28 February 2023.
The appellants filed a notice of appeal on 13 July 2022 but the respondents, in my opinion for good reason, objected to its competency in light of the existence of a number of matters that were left outstanding…

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 Cassaniti v Katavic

Details

AGLC: Cassaniti v Katavic [2022] NSWCA 230
Case: [2022] NSWCA 230
Decision Date: 10 November 2022

CaseChat Overview and Summary

In *Cassaniti v Katavic*, the Court of Appeal of the Supreme Court of New South Wales was required to determine an application for security for costs of an appeal. The application was brought by the respondents, who sought an order that the appellants provide security for their costs of the appeal and the related application for leave to appeal. The respondents contended that special circumstances existed, justifying the order, including allegations of fraudulent activity by one of the appellants and doubt as to the appellants' ability to satisfy any adverse costs order.

The primary legal issue before the Court was whether "special circumstances" were established under rule 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) to warrant an order for security for costs. This involved assessing the evidence presented regarding the financial standing of the appellants and the nature of their involvement in the proceedings, particularly the alleged fraudulent conduct of one appellant and the representative capacity of the other.

Macfarlan JA found that special circumstances did exist. His Honour noted that one appellant was acting solely in a representative capacity, and crucially, that there was evidence and findings of fraudulent activity by the other appellant. This, combined with doubt that the appellants could satisfy an adverse costs order, led the Court to conclude that an order for security was appropriate.

Consequently, the Court ordered the appellants to provide security for the respondents’ costs of and incidental to the concurrent hearing of the appeal and the application for leave to appeal by payment into Court of the sum of $75,000 (including GST) within 10 working days. The Court also made orders releasing a second respondent from an undertaking regarding the use of funds paid into Court and permitting those funds to be used for the second respondent's reasonable legal costs of the appeal. The costs of the respondents' notice of motion were made costs in the appeal.

Orders

Orders of the court

(1) Order the appellants to provide security for the respondents’ costs of and incidental to the concurrent hearing of the appeal and the application for leave to appeal by payment into Court of the sum of $75,000 (including GST) within 10 working days of the making of this order.

(2) To the extent that the second respondent is restrained by the undertaking, proffered during the hearing in the Court below, from using funds paid into Court to pay its reasonable legal costs of defending the appeal proceedings, order that the second respondent be released from that undertaking.

(3) Order that the funds held in Court for Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, be paid out of Court to the trustee, in such amounts as the trustee states to the Registrar of the Court that it considers necessary and appropriate for payment of its reasonable legal costs of the appeal proceedings.

(4) Order that the parties’ costs of the respondents’ notice of motion be costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cassaniti v Katavic [2022] NSWCA 230
Hearing dates:	7 November 2022
Date of orders:	10 November 2022
Decision date:	10 November 2022
Before:	Macfarlan JA
Decision:	(1) Order the appellants to provide security for the respondents’ costs of and incidental to the concurrent hearing of the appeal and the application for leave to appeal by payment into Court of the sum of $75,000 (including GST) within 10 working days of the making of this order. (2) To the extent that the second respondent is restrained by the undertaking, proffered during the hearing in the Court below, from using funds paid into Court to pay its reasonable legal costs of defending the appeal proceedings, order that the second respondent be released from that undertaking. (3) Order that the funds held in Court for Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, be paid out of Court to the trustee, in such amounts as the trustee states to the Registrar of the Court that it considers necessary and appropriate for payment of its reasonable legal costs of the appeal proceedings. (4) Order that the parties’ costs of the respondents’ notice of motion be costs in the appeal.
Catchwords:	APPEAL – security for costs of appeal – UCPR r 51.50 – “special circumstances” found to exist – one appellant acting as representative only – evidence and findings of fraudulent activity of other appellant – doubt that appellants could satisfy adverse costs order
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Cases Cited:	Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 In the matter of Australian Style Holdings Pty Ltd as trustee of The Australian Style Investments Unit Trust [2018] NSWSC 1368 The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157
Category:	Procedural rulings
Parties:	Sam Cassaniti (First Appellant) Nancy Morvillo (Second Appellant) Dennis Katavic (First Respondent) Antalija Developments No 4 Pty Ltd (Second Respondent) Jocelyn Katavic (Third Respondent)
Representation:	Counsel: D Allen (Appellant) T Alexis SC / A Oakes (Applicant/Respondent) Solicitors: McEvoy Legal (Appellant) Kamy Saeedi (Respondent)
File Number(s):	2022/204856 2022/261720
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 519 Date of Decision: 2 May 2022 Before: Robb J File Number(s): 2019/00372019