Cosenza v Gill

[2018] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

COSENZA & ANOR v GILL & ORS

[2018] SASCFC 117

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)

13 November 2018

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

PROCEDURE - COSTS - SECURITY FOR COSTS

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES - OTHER MATTERS

Application for permission to appeal in private against a decision of a Judge of this Court upholding a decision of a Magistrate ordering security of costs against the applicants in the Magistrates Court.

Held, per Curiam, refusing permission to appeal:

1.  It is not arguable that the Judge made the errors of principle complained of.

COSENZA & ANOR v GILL & ORS
[2018] SASCFC 117

Full Court:       Kourakis CJ, Kelly and Stanley JJ

1. THE COURT:     This is an application for permission to appeal against a decision of a Judge of this Court confirming an order for security for costs made against the applicants in the Magistrates Court. 

2. The applicants are mother and son.  They affixed a notice on the land owned by the first applicant, but in which they both reside, warning that the implied licence to enter as far as the front door of their suburban home had been revoked.   The applicants allege that the first respondent ignored the notice and entered their premises and knocked loudly on the door.  The applicants brought an action in the Magistrates Court against the respondents who are providers of utility services, and their agent, Mr Manjit Singh Gill, for trespassing on to the land.

3. It is not arguable that the Judge made the errors of principle complained of.  In particular, the Judge affirmed that the general rule that impecuniosity alone is not a sufficient reason to order security for costs against a natural person.

4. The following factors, in addition to the second applicant’s impecuniosity, are sufficient to exercise the discretion to require him to give security:

   ·the multiplicity of litigation in which the applicants were involved;

   ·the second applicant’s earlier bankruptcies, and in particular the bankruptcy founded on a costs order; and

   ·the probable disproportion between the damages and costs of the action.

5. The first applicant is the registered owner of the land.  However, she is 92 years of age.  The second applicant has informed the respondents that his mother’s health is deteriorating.  If the applicants’ claim is dismissed, there may well be a dispute between them as to who should be responsible for costs.   The complexity of proceedings to recover costs from the first applicant is a sufficient reason to make the security for costs order against her.

6. Permission to appeal is refused.