Charara v Integrex Pty Limited - [2011] NSWCA 9

Court of Appeal

New South Wales

Case Title: Charara v Integrex Pty Limited

Medium Neutral Citation: [2011] NSWCA 9

Hearing Date(s): 7th February 2011

Decision Date: 07 February 2011

Jurisdiction:

Before:
BeazleyJA [25], Whealy JA [1], Handley AJA [26]

Decision:
Her Honour's order as to security of costs should stand. The stay order should operate for 14 days from today's date. The costs order her Honour made should be set aside and replaced by an order that each party pay its own costs of the application for security costs. I would further propose that otherwise the present motion for review be dismissed and that each party pay its own costs of this motion.

Catchwords:
PRACTICE & PROCEDURE - Court of Appeal - security for costs on leave application - inherent jurisdiction - whether correctly exercised - relevant factors - costs on leave application

Legislation Cited:

Cases Cited:
Integrex Pty Ltd v Charara [2010] NSWSC 1131
Fleming v Marshall [2010] NSWCA 152
King v Commercial Bank of Australia Limited (1920) 28 CLR 289 at 292
House v The King (1936) 55 CLR 499

Texts Cited:

Category: Principal judgment

Parties:
Jamal Charara (Applicant)
Integrex Pty Limited (Respondent)

Representation

- Counsel:
J Charara (Applicant, in person)
D P O'Connor (Respondent)

- Solicitors:
Mercantile Legal (Respondent)

File number(s): 2010/152993

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

Judgment

WHEALY JA: This is a Motion to review a decision given by McColl JA on 7 December 2010. Her Honour ordered security for costs against the present application in the sum of $1,000. In addition, a stay of proceedings was ordered pending payment of the security.

The respondent, Integrex Pty Limited, had in earlier proceedings before Palmer J secured an order setting aside a statutory demand relating to an alleged debt of $3,200 owed to the applicant. In those proceedings the applicant asserted that he had the benefit of assignment of a debt in his favour. Palmer J set the statutory demand aside, on the basis that there was a disputed matter of fact as to whether notice of assignment had been given. He directed that this issue must go to trial. (See Integrex Pty Ltd v Charara [2010] NSWSC 1131).

The applicant filed a summons seeking leave to appeal from Palmer J's decision. Thereupon Integrex moved for an order that the applicant provide security in the sum of $20,000, hence the order sought to be reviewed. I turn now to the grounds of review.

The applicant accepted that the Court possessed an inherent jurisdiction to make an order for security for costs on a leave application but argued that, in making the order, her Honour's discretion miscarried. It did so, the applicant maintained, for three essential reasons.

First, on the authority of Fleming v Marshall [2010] NSWCA 152 at [12] per Handley AJA, the application for security should have been refused because a leave application was involved, not an appeal. Secondly,…

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 Charara v Integrex Pty Limited

Details

AGLC: Charara v Integrex Pty Limited [2011] NSWCA 9
Case: [2011] NSWCA 9
Decision Date: 07 February 2011

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal concerning an application for security for costs. The appellant, Charara, sought leave to appeal a decision of a single judge, and the respondent, Integrex Pty Limited, had applied for security for its costs of that leave application.

The primary legal issue before the Court of Appeal was whether the primary judge had correctly exercised her inherent jurisdiction in ordering security for costs against the appellant. The Court also had to determine the appropriate orders regarding the costs of the application for security and the costs of the motion for review.

The Court of Appeal upheld the primary judge's order for security for costs, finding that it had been correctly exercised. However, the Court varied the costs orders made at first instance. The Court ordered that each party bear its own costs of the application for security for costs and also ordered that each party bear its own costs of the present motion for review. The stay order made by the primary judge was to operate for 14 days from the date of the Court of Appeal's decision.

Orders

Orders of the court

Her Honour's order as to security of costs should stand. The stay order should operate for 14 days from today's date. The costs order her Honour made should be set aside and replaced by an order that each party pay its own costs of the application for security costs. I would further propose that otherwise the present motion for review be dismissed and that each party pay its own costs of this motion.

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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Case Title:	Charara v Integrex Pty Limited
Medium Neutral Citation:	[2011] NSWCA 9
Hearing Date(s):	7th February 2011
Decision Date:	07 February 2011
Jurisdiction:
Before:	BeazleyJA [25], Whealy JA [1], Handley AJA [26]
Decision:	Her Honour's order as to security of costs should stand. The stay order should operate for 14 days from today's date. The costs order her Honour made should be set aside and replaced by an order that each party pay its own costs of the application for security costs. I would further propose that otherwise the present motion for review be dismissed and that each party pay its own costs of this motion.
Catchwords:	PRACTICE & PROCEDURE - Court of Appeal - security for costs on leave application - inherent jurisdiction - whether correctly exercised - relevant factors - costs on leave application
Legislation Cited:
Cases Cited:	Integrex Pty Ltd v Charara [2010] NSWSC 1131 Fleming v Marshall [2010] NSWCA 152 King v Commercial Bank of Australia Limited (1920) 28 CLR 289 at 292 House v The King (1936) 55 CLR 499
Texts Cited:
Category:	Principal judgment
Parties:	Jamal Charara (Applicant) Integrex Pty Limited (Respondent)
Representation
- Counsel:	J Charara (Applicant, in person) D P O'Connor (Respondent)
- Solicitors:	Mercantile Legal (Respondent)
File number(s):	2010/152993
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction: