Emanuele v Boscaini & Eighty Two Pty Ltd No. DCCIV-01-772 - [2002] SADC 74

EMANUELE v BOSCAINI & EIGHT TWO PTY LTD
[2002] SADC 74
Judge Robertson
Civil
Introduction

This is an Appeal from a decision by a Master in which the Plaintiff was ordered to provide security for costs in the sum of $25,000 pursuant to the provisions of Rule 100 of the District Court Rules 1992 (“the Rules”). In making his order, the Master found that special circumstances existed within the meaning in Rule 100.01 (e) of the Rules. The Rule provides that the Court may order security for costs “… where for special circumstances the justice of the case so requires”.
The Appeal is brought pursuant to the terms of Rule 97 of the Rules. It is an Appeal by way of rehearing. I agree with Martin J in O’Brien Lovrinov Crafter Pty Ltd v Corradine (1999) SASC 159 (at 5) that Rule 97.01 makes it plain that in an Appeal from a Master, where the Master has exercised his discretion, a Judge may exercise his own discretion without regard to the manner in which the discretion was exercised by Master.
Nature of the Proceedings
Apart from the pleadings, the Master had regard to the affidavit of the Defendant (“Mr Boscaini”) sworn on 20 June 2001, an affidavit of the Plaintiff dated 17 September 2001 and the affidavits of Antonio Tropeano dated 31 May 2001 and 8 June 2001 respectively.
The Plaintiff’s claim is for breach of contract. The Plaintiff’s case is that he entered into an oral agreement with Mr Boscaini whereby it was agreed that a property situated at 81 King William Street, Adelaide (“the property”) would be purchased through a company to be nominated by them. Further, that the shares in the company would be held equally by the Plaintiff and Mr Boscaini. The Plaintiff said in his affidavit that it was a term of the agreement that Mr Boscaini would provide the purchase price for the property, namely $1.3 million by way of loan. It is further said by the Plaintiff that both he and Mr Boscaini agreed that the Second Defendant (“Eighty Two”), would be used to purchase the property. At that time, Mr Boscaini was the beneficial owner of all of the issued shares in Eighty Two. Eighty Two purchased the property for $1.3 million. The Plaintiff claims that the Defendants, in breach of the oral agreement, have refused to transfer one half of the issued shares in Eighty Two to him. The Plaintiff seeks (inter alia) specific performance of the agreement and damages.
It is Mr Boscaini’s case that he never entered into any agreement with the Plaintiff whether of the nature alleged by the Plaintiff or at all. Mr Boscaini says that the Plaintiff introduced him to the property and made certain representations regarding the property and its value. Mr Boscaini further says, that as a result of a request by the Plaintiff, he caused Eighty Two to take an assignment from a person called Antonio Tropeano (“Mr Tropeano”) of a written contract…

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.

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Details

Case: [2002] SADC 74
Decision Date: 29 May 2002

CaseChat Overview and Summary

In the matter of Emanuele v Boscaini & Eighty Two Pty Ltd, the plaintiff, Emanuele, appealed against a decision by a Master to order him to provide security for costs in the sum of $25,000. The plaintiff claimed that he had entered into an oral agreement with Mr. Boscaini, whereby a property would be purchased through a company to be nominated by them, and that the shares in the company would be held equally by the plaintiff and Mr. Boscaini. The plaintiff sought specific performance of the agreement and damages. The defendants, Mr. Boscaini and Eighty Two, denied entering into any agreement with the plaintiff.

The Master found that special circumstances existed for the ordering of security for costs and ordered the plaintiff to provide security for costs. The plaintiff appealed, arguing that the Master had erred in the exercise of his discretion. The court found that the Master had erred in concluding that the plaintiff had very poor prospects of success and that the agreement could well fail for uncertainty. The court also found that the Master had not considered all relevant factors in exercising his discretion.

The court considered the factors relevant to the exercise of the discretion to order security for costs. The court found that the plaintiff was impecunious and that Mr. Tropeano, the plaintiff's solicitor, was funding the plaintiff's litigation. The court also found that Mr. Tropeano had the financial capacity to meet an order for security for costs made against the plaintiff. The court found that the absence of a plea by the plaintiff that an order for security for costs would stultify the proceedings indicated that the plaintiff had financial support if an order for security for costs was made. The court concluded that special circumstances existed for the ordering of security for costs and ordered the plaintiff to provide security for costs.

In conclusion, the court found that the Master had erred in the exercise of his discretion in ordering security for costs. The court found that the plaintiff was impecunious, that Mr. Tropeano was funding the plaintiff's litigation, and that Mr. Tropeano had the financial capacity to meet an order for security for costs made against the plaintiff. The court also found that the absence of a plea by the plaintiff that an order for security for costs would stultify the proceedings indicated that the plaintiff had financial support if an order for security for costs was made. The court ordered the plaintiff to provide security for costs.

Orders