Djordjevich v Rohrt

Case [2021] VSCA 279


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

  1. 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. 

  1. 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. 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] 

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

Applicable principles

  1. 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.

  1. 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.

  1. An order for security for costs of an application for…

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Djordjevich v Rohrt [2021] VSCA 279
Case
[2021] VSCA 279
Decision Date

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

Orders of the court

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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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