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Citicorp Australia Ltd v Cirillo

Citicorp Australia Ltd v Cirillo

Case [2003] SASC 204 30 June 2003

Civil Litigation & Procedure

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CITICORP V CIRILLO
[2003] SASC 204
Civil

SULAN J This is an application pursuant to Rule 95.13 of the Supreme Court Rules 1987[1], by the respondents to an appeal that the appellant provide security for the costs of the appeal to the respondent in the sum of $30,000 to be paid within 14 days by payment into court or by provision of a bank guarantee in a form satisfactory to the Registrar of the Court.
[1] Powers of the Court:
The respondents, whom I shall refer to as ‘Citicorp’ were the plaintiffs in the action. The appellant, to whom I shall refer as ‘Cirillo’ was one of the defendants in the action. Olsson AJ heard and determined a number of preliminary issues. Citicorp and others sued a number of defendants including Cirillo seeking, inter alia, possession of certain earthmoving machinery referred to in the judgment of Olsson AJ as “the Poclain”. Citicorp asserted that the Poclain was subject to a charge granted to Citicorp on 18 April 1983. The litigation commenced on 3 May 1985 when Cox J granted an interim injunction to Citicorp restraining Cirillo and a co-defendant from selling, assigning, letting, encumbering, using, damaging, disposing of or dealing in any other manner with the Poclain without the written consent of Citicorp and the other plaintiffs. That injunction was continued on 24 May 1985. On that day the Court extended the injunction, subject to the plaintiffs by their solicitor continuing an undertaking to pay damages to Cirillo as a court or judge may determine. Over a number of years, the plaintiffs did not take any further steps to prosecute the proceedings. There were other proceedings between some of the parties in the Supreme Court of Queensland. I do not need to go into the detail of those proceedings.
It is unclear why the proceedings in South Australia remained stagnant for a number of years. Cirillo was declared bankrupt on 4 June 1992 on the petition of the Commissioner for Taxation. The Official Trustee was appointed as trustee of his estate.
Some eighteen months prior to Cirillo having been declared bankrupt he had served a notice on Citicorp of his intention to proceed in the action. That application was heard and adjourned on numerous occasions. After Cirillo was declared bankrupt on 7 October 1992 a Master made the following order:
“If by 31 January 1993 Mr Cirillo is still bankrupt and the action has been discontinued, then there will be no order as to the costs of that discontinuance and the plaintiff will automatically be released from the undertakings as to damages given earlier in these proceedings. If however at that date the action having been discontinued Mr Cirillo has been discharged from bankruptcy then the question of costs of the discontinuance and the application for release from undertakings is reserved for further consideration upon the application of Mr Cirillo.”
No notice of discontinuance was filed on 31 January 1993, which turned out to be a Sunday. The plaintiffs…

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 Citicorp Australia Ltd v Cirillo

Details

AGLC: Citicorp Australia Ltd v Cirillo [2003] SASC 204
Case: [2003] SASC 204
Decision Date: 30 June 2003

CaseChat Overview and Summary

Citicorp Australia Ltd, the plaintiff, sought an order for security for costs in relation to an appeal filed by Cirillo, the defendant. The matter arose out of a proceeding in which Citicorp had obtained an injunction against Cirillo, restraining him from dealing with certain earthmoving machinery. The injunction was later discharged. The trial judge had found in favour of Citicorp on a number of preliminary issues and Cirillo had appealed that decision. Citicorp sought an order for security for costs in the amount of $30,000. The court considered whether the appellant, Cirillo, was impecunious and whether special circumstances existed to justify the making of an order for security for costs. The court found that Cirillo was impecunious and that his impecuniosity amounted to special circumstances for the purposes of Rule 95.13 of the Supreme Court Rules 1987. The court concluded that special circumstances had been made out and ordered that Cirillo provide security for costs in the sum of $30,000 within 14 days by payment into court or by provision of a bank guarantee in a form satisfactory to the Registrar of the Court.

The court was required to determine whether the appellant was impecunious and whether special circumstances existed to justify the making of an order for security for costs. The court considered whether impecuniosity alone could amount to special circumstances for the purposes of Rule 95.13 of the Supreme Court Rules 1987. The court concluded that impecuniosity alone could amount to special circumstances for the purposes of Rule 95.13. The court also considered whether it should exercise its discretion to order security for costs. The court concluded that special circumstances had been made out and ordered that the appellant provide security for costs in the sum of $30,000 within 14 days by payment into court or by provision of a bank guarantee in a form satisfactory to the Registrar of the Court. The court noted that the litigation was complex, the appeal related to commercial arrangements between parties and the enforcement of an undertaking as to damages and that there were no matters of great moment or matters which made the litigation exceptional from the ordinary commercial causes heard by the court. The court found that the making of an order would not stifle the appellant’s appeal and that the appellant had not sought to establish any other factors to support the exercise of the court’s discretion to refuse the application.

Orders