Elskaf v GIO General Limited

[2018] NSWCA 207

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Elskaf v GIO General Limited [2018] NSWCA 207
Hearing dates:	17 September 2018
Date of orders:	17 September 2018
Decision date:	19 September 2018
Before:	Sackville AJA
Decision:	1. Grant leave to the respondent to amend its notice of motion filed on 4 September 2018 to substitute “Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50” for “UCPR Rule 42.21”. 2.   Direct the respondent to file the amended notice of motion within seven days. 3.   Order the appellant to provide within fourteen days security in the sum of $15,000 for the respondent’s costs of the appeal by payment of that amount into Court or in such form as the appellant and respondent may agree. 4.   Stay the proceedings until the appellant has provided security for the respondent’s costs of the appeal in accordance with Order 3. 5.   The appellant pay the respondent’s costs of the amended motion for which leave to file has been granted.
Catchwords:	PROCEDURE – application for security for costs – no point of principle
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW) Supreme Court Rules 1970 (NSW), Part 51, r 16
Cases Cited:	Ali Elskaf v GIO General Ltd unrep, District Court, 13 April 2018 New South Wales Crime Commission v Elskaf [2018] NSWSC 259 New South Wales Crime Commissioner v Elskaf [2017] NSWSC 681 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Xenos v FAL Healthy Beverages Ltd [2017] NSWCA 240
Category:	Procedural and other rulings
Parties:	Ali Elskaf (Appellant) GIO General Limited (Respondent)
Representation:	Counsel: No appearance (Appellant) Mr D Hanna (Respondent, applicant on motion)   Solicitors: Ligeti Partners (Respondent, applicant on motion)
File Number(s):	2018/148552
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 13 April 2018 Before: Wass SC DCJ File Number(s): 2013/292649

Judgment

1. SACKVILLE AJA: In this matter the respondent to an appeal filed a motion seeking an order for security for its costs of the appeal. The appellant was served with GIO’s notice of motion and the supporting affidavits but did not appear at the hearing.

2. At the conclusion of the hearing I made the following orders:

1.   Grant leave to the respondent to amend its notice of motion filed on 4 September 2018 to substitute “Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50” for “UCPR Rule 42.21”.

2.   Direct the respondent to file the amended notice of motion within seven days.

3.   Order the appellant to provide within fourteen days security in the sum of $15,000 for the respondent’s costs of the appeal by payment of that amount into Court or in such form as the appellant and respondent may agree.

4.   Stay the proceedings until the appellant has provided security for the respondent’s costs of the appeal in accordance with Order 3.

5.   The appellant pay the respondent’s costs of the amended motion for which leave to file has been granted.

3. I indicated that reasons for those orders would be provided. These are the reasons.

4. The appeal is from a decision entering a verdict and judgment for the respondent (GIO) in proceedings instituted by the appellant. [1] In those proceedings, the appellant claimed the sum of $185,000 from GIO under an insurance policy. This sum was the agreed value of a Ferrari motor vehicle (Vehicle) covered by the policy. On the appellant’s case, the Vehicle sustained “non-repairable damage” when it was driven into flood waters and the cabin was inundated to a level higher than the inner doorsill (this being the standard for a so-called “statutory write-off”).

   1.    Ali Elskaf v GIO General Ltd unrep, District Court, 13 April 2018 (Primary Judgment).

5. The primary Judge stated that the factual issue to be determined was whether or not the appellant had persuaded her on the evidence that it was more likely than not that the water inundated the cabin of the Vehicle to a point above the doorsill. [2] Her Honour found that the appellant’s evidence was “wholly unreliable” and that part of his account was “inherently unbelievable”. [3] Her Honour accepted expert evidence adduced by GIO to the effect that the water never rose to the level claimed by the appellant. [4] Since the appellant abandoned an alternative claim for the cost of repairs to the Vehicle, the primary Judge gave judgment for GIO.

   2. Primary Judgment at [127].

   3. Primary Judgment at [128].

   4.    Primary Judgment at [130], [132].

6. The notice of motion originally filed by the respondent seeking an order for security for costs identified the relevant rule as UCPR r 42.21. In fact the relevant rule is UCPR r 51.50, which provides as follows:

“(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).”

7. UCPR r 42.21 provides that the Court may order security for costs on the application of a defendant in specified circumstances. None of those circumstances applies in the present case.

8. The principles governing the concept of “special circumstances” in r 51.50(1) were summarised in Preston v Harbour Pacific Underwriting Management Pty Ltd [5] 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.”

5. [2007] NSWCA 247 at [18] (Basten JA, Ipp JA and Hoeben J agreeing). The summary referred to the predecessor to r 51.50(1): Supreme Court Rules 1970 (NSW), Part 51, r 16.

9. Mr Hanna, who appeared for GIO on the application, ultimately relied on two matters as establishing “special circumstances” for the purposes of r 51.50(1):

(i)   the inability of the appellant to satisfy any costs order made in favour of GIO; and

(ii)   the absence of any seriously arguable grounds of appeal.

10. The evidence reveals that an assets forfeiture order and unexplained wealth orders have been made pursuant to the Criminal Assets Recovery Act 1990 (NSW) (Recovery Act) against the appellant on the application of the New South Wales Crime Commission. [6] Orders have also been made pursuant to s 10B of the Recovery Act for the New South Wales Trustee and Guardian to take control of certain property of the appellant subject to earlier orders. [7] The value of this property apparently exceeds $625,000. In addition, it appears that orders have been made against the appellant forfeiting property to the value of $450,000.

    6. New South Wales Crime Commission v Elskaf [2017] NSWSC 681 (Harrison J).

    7. New South Wales Crime Commission v Elskaf [2018] NSWSC 259 (Rothman J).

11. Impecuniosity of itself is not sufficient to constitute special circumstances within r 51.50(1), but it may do so when combined with other factors. [8] The present appellant may or may not be impecunious but the evidence establishes that GIO is at serious risk, in the absence of an order for security for costs, of being unable to recover any costs order made in its favour. The appellant has not adduced any evidence that an order for security would stultify the appeal. [9]

    8. Xenos v FAL Healthy Beverages Ltd [2017] NSWCA 240 (Xenos) at [27] (Gleeson JA).

    9. Xenos at [28].

12. The notice of appeal challenges the primary Judge’s findings of fact, including the credit-based findings adverse to the appellant. The only substantive basis for challenging the findings that can be discerned from the grounds of appeal is that there was a delay of eleven months between the hearing and the delivery of judgment. [10]

    10.    Ground 2 in the notice of appeal suggests that her Honour took into account her belief that the appellant deliberately drove into floodwaters despite expressly stating that he did not do so. In the absence of further material supporting this ground it must be regarded as baseless.

13. The grounds identified in the notice of appeal do not necessarily demonstrate that the appeal is hopeless, but they suggest that it has very low prospects of success. The failure of the appellant to appear and oppose the respondent’s application did nothing to dispel that impression.

14. In these circumstances I was satisfied that the respondent had shown “special circumstances” warranting the making of an order for security for costs. The affidavit from the appellant’s solicitor suggested that the order should require the appellant to provide security in the amount of $24,000. In the absence of particulars supporting that estimate I considered that the orders should require the appellant to pay the sum of $15,000 as security for the costs of the appeal.

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Endnotes

Decision last updated: 19 September 2018