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Djordjevich v Rohrt

Djordjevich v Rohrt

Case [2021] VSCA 279 14 October 2021

Limitation Periods

Security for Costs

Appeal

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0053
S EAPCI 2021 0071

DAVID DJORDJEVICH	Applicant
v
RICHARD TRYGVE ROHRT (in his capacity as liquidator of ACN 091 518 302 Pty Ltd (in liquidation) ACN 091 518 302)	Respondent

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JUDGES:	McLEISH JA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2021
DATE OF JUDGMENT:	14 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 279

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PRACTICE AND PROCEDURE – Security for costs – Applications for leave to appeal – Whether risk that any costs order in respondent’s favour would go unsatisfied – Whether applicant impecunious – Whether open to infer applicant impecunious – Applicant declined requests to provide evidence as to financial position – Applicant yet to pay taxed costs order in related proceeding – Evidence that applicant has unencumbered interest in land – Party seeking security bears onus of establishing impecuniosity – Onus not discharged – Risk not established – Application dismissed – Supreme Court (General Civil Procedure) Rules 2015 r 64.38(2).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Levine	Maciel Pizzorno & Co
For the Respondent	Ms C Gobbo	Mills Oakley

McLEISH JA
MACAULAY AJA:

Introduction

The respondent, Mr Rohrt, is the liquidator of ACN 091 518 302 Pty Ltd, which it is convenient to describe as ‘the company’. The applicant, Mr Djordjevich, is aggrieved by the conduct of the liquidation.

Mr Djordjevich has filed two applications for leave to appeal decisions of a judge of the Trial Division. By the first, he seeks to challenge the judge’s dismissal of his application for an investigation of Mr Rohrt’s conduct of the liquidation of the company, pursuant to sch 2 of the Corporations Act 2001 (Cth).[1] By the second, he seeks to challenge the judge’s order that he pay Mr Rohrt’s costs of the dismissed application, in part upon an indemnity basis.
[1]Djordjevich v Rohrt [2021] VSC 178 (Delaney J).

Mr Rohrt now applies for an order that Mr Djordjevich provide security for his costs of the two applications for leave to appeal, in the amount of $108,474.15.[2]
[2]Supreme Court (General Civil Procedure) Rules 2015 r 64.38(2).

For the reasons that follow, the application will be dismissed.

Applicable principles

Rule 64.38(2) of the Supreme Court (General Civil Procedure) Rules 2015 provides:

A party may apply to the Court of Appeal for an order—
(a)that the applicant or appellant give security for the costs of the application or appeal, and for the manner, time and terms for giving the security;
(b)that the application or appeal be stayed until security is given; and
(c)that, if the applicant or appellant fails to comply with the order to provide security within the time specified in the order, the application or appeal be dismissed.

The principles which inform the exercise of this Court’s power to grant security for the costs of an application for leave to appeal are well established, and are not in dispute.

An order for security for costs of an application for…

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 Djordjevich v Rohrt

Details

AGLC: Djordjevich v Rohrt [2021] VSCA 279
Case: [2021] VSCA 279
Decision Date: 14 October 2021

CaseChat Overview and Summary

In the case of Djordjevich v Rohrt, the applicant sought leave to appeal a decision regarding the granting of security for costs under the Supreme Court (General Civil Procedure) Rules 2015. The application arose from a dispute between the parties concerning a claim for damages. The primary legal issue before the court was whether the applicant had discharged the onus of proving that there was a risk that any order for security for costs in the respondent’s favour would go unsatisfied, and specifically, whether the applicant was impecunious. The court had to consider whether the applicant’s refusal to provide evidence of their financial position and their failure to pay a taxed costs order in a related proceeding were sufficient grounds to infer impecuniosity. Additionally, the court needed to assess the significance of the applicant’s unencumbered interest in land in determining their financial status.

The court held that the onus of establishing impecuniosity lies with the party seeking security for costs. The applicant had declined to provide evidence regarding their financial position, which was a significant factor in the court's decision. Furthermore, the applicant had not complied with a taxed costs order in a related proceeding, suggesting potential financial difficulties. However, the court noted that the applicant owned unencumbered land, which could indicate financial stability. Despite these considerations, the court concluded that the applicant had not discharged the onus of proving impecuniosity. Consequently, the risk that any order for security for costs would go unsatisfied was not established. The application for leave to appeal was dismissed.

The court's decision emphasised the importance of providing evidence to support claims of impecuniosity and highlighted that the mere refusal to provide such evidence could be detrimental to an applicant's case. The court's ruling was based on the principle that the party seeking security for costs must establish the necessary criteria, and in this instance, the applicant had failed to meet this burden. The final orders of the court dismissed the application for leave to appeal, reinforcing the legal requirement for applicants to provide adequate evidence to substantiate their claims.

Orders