Dogra v Dogra

[2024] NSWCA 127

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Dogra v Dogra [2024] NSWCA 127

Hearing dates:

27 May 2024

Date of orders:

27 May 2024

Decision date:

27 May 2024

Before:

Payne JA

Decision:

The first respondent’s notice of motion dated 28 March 2024 is dismissed with costs.

Catchwords:

COSTS – Security for costs – Relevant factors – Impecuniosity – no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 1.11, 51.50

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Hastings v Hasting [2009] NSWCA 294

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

PrestonvHarbour Pacific UnderwritingManagement Pty Ltd [2007] NSWCA 247

Saba vNationalAustralia Bank Ltd [1999] NSWCA 93

Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136

Category:

Procedural rulings

Parties:

Aruna Dogra (appellant)
Mamta Dogra (first respondent)
Kapil Dogra (second respondent/cross appellant)

Representation:

Counsel:
CD Freeman (appellant/first cross-respondent)
D O’Dea (solicitor) (first respondent/second cross-respondent)
J Capsanis (solicitor) (second respondent/cross-appellant)

Solicitors:
Goodwin & Co Lawyers (appellant/first cross-respondent)
O’Dea Lawyers (first respondent/second cross-respondent)
JP Capsanis & Co Lawyers (second respondent/cross-appellant)

File Number(s):

2024/8811

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1642

Date of Decision:

21 December 2023

Before:

Lindsay J

File Number(s):

2021/00151823

JUDGMENT

1. On 27 May 2024, the matter came before me in the Court of Appeal referrals list to deal with:

1. a notice of motion dated 28 March 2024; and

2. directions for the further conduct of the appeal.

2. Before the primary judge, Lindsay J, the appellant, Aruna Dogra, claimed a beneficial entitlement to the former matrimonial home of her son, the second respondent, and his former wife, Mamta Dogra, who is the first respondent. On 21 December 2023, Lindsay J rejected the appellant’s claim and made the following orders [2023] NSWSC 1642:

(1)    DECLARE that the plaintiff has no right, title or interest in the land contained in Certificate of Title folio identifier 16/18644 and known as XXXX Crescent, Hurstville.

(2)    ORDER that caveat number AP793162 be withdrawn forthwith.

(3)    ORDER that the plaintiff and the second defendant pay the first defendant’s costs of these proceedings.

(4)    NOTE that no orders are made as to the costs of the plaintiff and the second defendant to the intent that they each pay or bear their own costs.

3. A notice of intention to appeal was filed on 28 December 2023. A notice of appeal was filed on 20 March 2024. The second respondent filed a notice of cross appeal on 21 March 2024.

4. On 27 May 2024 I made the following orders:

1. The first respondent’s notice of motion dated 28 March 2024 is dismissed with costs.

2. Reasons reserved.

5. These are my reason for making those orders.

Notice of motion

6. On 28 March 2024, the first respondent filed a notice of motion seeking dismissal of the appeal (proposed order 2) and, in the alternative, security for costs (proposed orders 3 and 4). Proposed orders 1 and 5 are no longer relevant.

7. The evidence on the motion was:

1. an affidavit of the first respondent’s solicitor, Mr O’Dea, sworn 28 March 2024;

2. an affidavit of the appellant affirmed 24 April 2024; and

3. an affidavit of Kapil Dogra, the second respondent, affirmed 29 April 2024.

8. There was no objection to the affidavits of Mr O’Dea or Ms Dogra. The affidavit of Kapil Dogra was admitted, subject to relevance. This lengthy affidavit was not referred to in whole or in part by any party. I reject the affidavit of Kapil Dogra affirmed 29 April 2024 as being completely irrelevant to any issue on this motion.

Proposed order 2 – application for dismissal

9. The decision of the primary judge was handed down on 21 December 2023. It was common ground that the notice of intention to appeal was filed within time. As explained, a notice of appeal was filed on 20 March 2024 and a notice of cross appeal (on behalf of the second respondent) was filed on 21 March 2024.

10. Mr O’Dea, who appeared for the first respondent, the applicant on the motion, at first argued that the notice of appeal and notice of cross appeal were filed out of time. However, upon his attention being drawn to UCPR r 1.11, he withdrew this submission, and with it the application for dismissal.

11. Proposed order 2 should not be made.

Proposed orders 3 and 4 – security for costs

12. The Court may order security for costs on an appeal be ordered in special circumstances. UCPR r 51.50 provides:

51.50   Security for costs

(1)  In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal.

(2)  Subject to subrules (1) and (3), no security for costs of an appeal is to be required.

(2A)  If an appellant or cross-appellant fails to comply with an order under this rule, the Court may order that the appellant’s appeal or cross-appellant’s cross-appeal be dismissed.

(3)  Subrules (1), (2) and (2A) do not affect the powers of the Court under rule 42.21 (which relates to security for costs).

13. Impecuniosity should not preclude a party from obtaining a proper adjudication of the merits of their claim or defence: Saba v National Australia Bank Ltd [1999] NSWCA 93. The importance of this approach is emphasised by UCPR r 51.50(2). The weight of authority is that impecuniosity, without more, is not a sufficient basis to constitute special circumstances justifying an order for security being made: Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [30]-[31]. In Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247, Basten JA (with whom Ipp JA and Hoeben J agreed in relevant respects) summarised the relevant principles as follows:

1. no order for security should be made in the absence of “special circumstances”;

2. consideration of what may constitute special circumstances should not be fettered by some general rule of practice;

3. impecuniosity, without more, will usually be insufficient;

4. an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature;

5. where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and

6. the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.

14. Mr O’Dea on behalf of the applicant accepted that impecuniosity of the appellant was an insufficient basis to establish special circumstances. He submitted, that in the present case, I should be satisfied that the appellant might be able to obtain funding from other sources and that this consideration was dispositive in his favour. Mr O’Dea referred to Hastings v Hasting [2009] NSWCA 294 at [14]:

I also take into account the fact (as to which see Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344; (2007) 65 ACSR 383 at [51]) that a finding or concession that a plaintiff is impecunious does not of itself establish that the relevant proceeding would be stultified. The possibility remains in many cases that there are others, such as litigation funders, family or associates, who may step in to assist the plaintiff (see also by way of example Bell Wholesale Co Ltd v Gates Export Corp (No 2) (1984) 2 FCR 1 at 4). In the present case, the parties’ agreement as to the effect of a security order obviates the need to consider such a possibility. I note that in Pirus v Egan, where the order for security made by the Registrar was affirmed, Bryson JA concluded that despite the claimant’s apparent impecuniosity, the claimant had resources available to him which would enable him to conduct the litigation, apparently whether or not the security was ordered.

15. In the present case, the evidence establishes that the appellant is an 80-year-old widow in poor health who has exhausted her savings in relation to this and related Family Court litigation. Her daughter Punam has lent her over $100,000 to participate in the litigation. The appellant gave uncontested evidence that Punam is not prepared to lend her additional money to pay security for costs. The appellant is unable to pay security for costs from her own finances. I accept that evidence. I find that if security for costs is ordered the appeal will be stultified.

16. As to whether the present is a bona fide and reasonably arguable appeal, Mr O’Dea submitted that the appellant’s case was a weak one. Mr Freeman, who appeared for the appellant, candidly admitted that by reason of the demeanour-based credit findings made by the primary judge the appellant faced significant hurdles: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]

17. Nevertheless, I have concluded that, to the extent it is necessary to do so, I am satisfied that the appellant’s case is brought bona fide and reasonably arguable, albeit that it faces significant hurdles of the kind identified by Mr Freeman.

18. Accordingly, I have decided that an order for security for costs should not be made here.

19. It follows that proposed orders 3 and 4 of the notice of motion should not be made.

Conclusion

20. For these reasons, on 27 May 2024 I dismissed the notice of motion with costs.

Directions relating to the further conduct of the appeal

21. After dismissing the notice of motion, and after consulting each of the parties, I made the following case management orders:

1. Vacate the directions hearing listed before the Court of Appeal Registrar on 3 June 2024.

2. Appeal listed for a one-day hearing before the Court of Appeal on Tuesday 27 August 2024. 

3. Direct that by 4 pm Friday 28 June 2024 the appellant and cross-appellant file and serve the Blue and Black Books, suitably marked up to indicate where material was not admitted by the primary judge or was subject to an order limiting its use. If any party wishes to adduce evidence not before the primary judge, that evidence must be contained in a separate Blue Book.

4. Direct that the cross-appellant file and serve submissions in chief by 4 pm Friday 28 June 2024.

5. Direct that the first respondent file and serve submissions in reply to the appeal and cross-appeal, with a 30-page limit, by 4 pm Friday 19 July 2024.

6. Direct that the appellant and cross-appellant file and serve submissions in reply by 4 pm Thursday 8 August 2024.

7. Direct that the Orange Book be filed and served by 4 pm Thursday 15 August 2024.

8. Liberty to apply to the chambers of Payne JA with 24 hours’ notice.

22. The parties were directed, before any breach of the timetable occurred, to exercise the liberty to apply to my chambers.

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Amendments

29 May 2024 - Typographical error amended at [13]

17 September 2024 - Parties amended on coversheet.

Decision last updated: 17 September 2024