Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd

[2024] ACTCA 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd

Citation: 

[2024] ACTCA 5

Hearing Date: 

28 February 2024

Decision Date: 

28 February 2024

Before:

McCallum CJ

Decision: 

(1)    The appellant is to provide $50,000 in security for the first respondent's costs and $50,000 security for the second respondent's costs.

(2)    Such security is to be provided by payment to Court in tranches as follows:

(a)    $30,000, being $15,000 for each respondent, by 31 March 2024; and

(b)    $70,000, being $35,000 for each respondent, by 31 May 2024.

(3)    The first and second respondents be granted liberty from 1 June 2024 to apply to the Court for further security for costs if they contend that the above security is inadequate.

(4)    In the event of failure by the appellant to pay the amounts required by these orders, the appeal proceedings will stand dismissed.

(5)    The appellant has liberty to apply to seek an extension of the time for payment of any of the amounts as required by these orders.

(6)    The costs of the applications filed on 30 January 2024 and 24 February 2024 be each party's costs in the appeal.

Catchwords: 

APPEAL – SECURITY AND COSTS – consideration of what is reasonable to protect those who might succeed in the litigation – appellant ordered to provide security for the respondents’ costs

Cases Cited: 

TSDack Pty Limited v Australian Water Holdings Pty Limited [2015] FCA 931; 108 ACSR 379

Parties: 

Civil & Civic Corporation Pty Ltd (ABN: 72 637 560 831) ( Appellant)

Nova Builders Pty Ltd (ABN: 37 601 434 646) ( First Respondent)

Beno Excavations Pty Limited (ABN: 68 085 418 248) ( Second Respondent)

Representation: 

Counsel

A Greinke ( Appellant)

R Arthur ( First Respondent)

D Robens (Second Respondent)

Solicitors

Chamberlains Law Firm ( Appellant)

Lexicon Lawyers ( First Respondent)

Joseph Tallarita (Second Respondent)

File Number:

ACTCA 42 of 2023

ACTCA 47 of 2023

Decision Under Appeal: 

Court/Tribunal:           ACT Supreme Court

Before:   Mossop J

Date of Decision:       3 November 2023

Case Title:                  Nova Builders Pty Ltd v Beno Excavations  

Pty Ltd

Citation: [2023] ACTSC 319

McCALLUM CJ:

1․Two appeal proceedings are before the Court arising from various rulings made by Mossop J.  The respondents seek security for their costs of the appeal.  The appellant has agreed to pay security in the sum of $50,000 for each respondent, and each respondent is content with that sum for the time being.  However, the parties remain in dispute as to the timing of those payments.

2․That dispute arises in circumstances where, in short, the evidence in support of the application was based on the financial status of the appellant (as it is able to be ascertained from publicly available documents) and an apprehension that it would not be able to meet any adverse costs order in the event that the appeal fails.  There is no evidence from the appellant disputing or contesting the inferences to be drawn from that material.  In those circumstances, it is submitted by Mr Robens on behalf of the second respondent that I should not have regard to any consideration that the orders I make today might be oppressive in the sense that they might deny the appellant a right to litigate.

3․The authority relied upon by Mr Robens was the decision of Katzmann J in TSDack Pty Limited v Australian Water Holdings Pty Limited [2015] FCA 931; 108 ACSR 379 at [52] that:

it is an essential part of the case of a company seeking to resist an order for security on the ground that the granting of security will frustrate the litigation to raise the issue of the impecuniosity of those whom the litigation will benefit and to prove the necessary facts.

4․In fact, that passage of the judgment is a citation of the decision of the Full Court in Bell Wholesale Co Ltd v Gates Export Corporation [1984] FCA 34; (1984) 2 FCR 1 at 4 (Sheppard, Morling and Neaves JJ). In any event, I accept that is the proper approach.

5․Conversely, however, the court must be astute to two considerations.  The first is that, while the power to order security for costs is intended as a protection for those who might succeed in the litigation, the party bringing the appeal, without being impecunious, may find itself in a better or worse position to make payments of substantial sums towards costs at various points in time but it may not always be worth the cost of proving that with any specificity.  The court is entitled to have regard to the general nature of business, being that a company may be in a better position to pay large sums of money later rather than sooner.  That said, as submitted by Mr Robens, the respondents have established an entitlement to security and the appellant has conceded that proposition.  The court is therefore required to do the best it can to work out the fair amounts and timings, knowing the likely costs of the appeal and the timing of the work to be done.

6․An estimate of those costs was provided as Annexure D to the affidavit of Joseph Tallarita, sworn on 16 February 2024.  Mr Robens noted that the appellant has not contested the contents of that schedule.  But conversely, it is framed as an estimate, not a statement of costs in fact incurred.  Historically it is known that at least some of the costs identified have not been incurred.  For example, there is an allowance for briefing senior counsel from the outset, but senior counsel has not been briefed, or at least has not appeared.

7․Accordingly, the second consideration is that, even in the absence of evidence from an appellant of a risk of stultifying the appeal, the court must be astute not to allow inaccurate estimates to create unfairness in the balance that is sought to be struck.  In all of these kinds of circumstances, the court can only do the best it can do with the material before it.

8․The parties have reached an agreed position with very small differences.  The respondents seek payment of $50,000, that is, $25,000 to each respondent by the end of March and the balance of $25,000 each by the end of April.  The appellant indicated it is prepared to pay $10,000 to each respondent by the end of March and the full balance by the end of June.

9․Based on my assessment of Mr Tallarita's schedule and the likely course of the appeal as it has been outlined in submissions this morning, I accept that the amount of $10,000 for each respondent might be inadequate.  I propose to order that the appellant pay $15,000 to each respondent by the end of March.  I have reached that sum based on my analysis of Mr Tallarita's schedule, the steps that have in fact occurred in the proceedings and a measure of my own assessment as to what is reasonable.

10․The appellant proposes, as I have said, to pay the balance by the end of June.  Mr Arthur's submissions have persuaded me that that might be cutting it fine for the respondents to commence preparation of the proceedings.  However, I do not accept the submission of Mr Robens that a great deal more work would need to be front-ended in order for the respondents to be ready to face the appeal.  Accordingly, I propose to order that the balance of $70,000, that is, $35,000 for each respondent, be paid by the end of May.

Orders

11․Accordingly, the following orders are made:

(1)The appellant is to provide $50,000 security for the first respondent's costs and $50,000 security for the second respondent's costs.

(2)Such security is to be provided by payment to Court in tranches as follows:

(a)$30,000, being $15,000 for each respondent, by 31 March 2024; and

(b)$70,000, being $35,000 for each respondent, by 31 May 2024.

(3)The first and second respondents be granted liberty from 1 June 2024 to apply to the Court for further security for costs if they contend that the above security is inadequate.

(4)In the event of failure by the appellant to pay the amounts required by these orders, the appeal proceedings will stand dismissed.

(5)The appellant has liberty to apply to seek an extension of the time for payment of any of the amounts as required by these orders.

(6)The costs of the applications filed on 30 January 2024 and 24 February 2024 be each party's costs in the appeal.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 17 April 2024