Faris v Savage - [2019] ACTSC 94

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Faris v Savage
Citation:	[2019] ACTSC 94
Hearing Date:	22 March 2019
DecisionDate:	11 April 2019
Before:	McWilliam AsJ
Decision:	See [39]
Catchwords:	PRACTICE AND PROCEDURE – SECURITY FOR COSTS –Appeal from Magistrates Court – whether the appellant is impecunious – whether the appeal is without merit – security for costs ordered
Legislation Cited:	Building Act 2004 (ACT) Competition and Consumer Act 2012 (Cth) sch 2 ss 60, 61, 62 Court ProceduresRules 2006 (ACT) rr 1900, 1901, 1902, 5055 Evidence Act 2011 (ACT) s 144(1) Magistrates Court Act 1930 (ACT) s 276
Cases Cited:	Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11; 1 ACTLR 287 Burns v Man Automotive (Aust) Pty Ltd (1986) 161 CLR 653 Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320 Davey v Herbst (No 2) [2012] ACTCA 19 Fox v Percy [2003] HCA 22; 214 CLR 118 Hughes v Janrule Pty Ltd [2011] ACTCA 15; 177 ACTR 1 Hungerfords v Walker (1989) 171 CLR 125 Hussain v Tam [2015] ACTSC 197 Matsebula v Reynolds [2016] ACTSC 55 Savage v Fairs (sic) [2018] ACTMC 17 Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149 Twining v Curtis [2014] ACTCA 19
Parties:	Rabea Hatem Faris (Appellant/Respondent) Gail Savage (Respondent/Applicant)
Representation:	Counsel Mr J Cohen (Appellant/Respondent) Ms P Bindon (Respondent/Applicant)
Solicitors Mitry Lawyers (Appellant/Respondent) Aulich Civil Law (Respondent/Applicant)
File Number:	SCA 47 of 2018
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 24 August 2018 Case Title: Savage v Fairs (sic) Citation: [2018] ACTMC 17

McWilliam AsJ:

In April 2015, the appellant, Mr Rabea Faris, carried out landscaping and renovation work for the plaintiff, Ms Gail Savage, at a property owned by her in Theodore in the Australian Capital Territory (ACT). The work involved painting, rendering, closing in the open garage and some landscaping.

Ms Savage later brought proceedings against Mr Faris in the Magistrates Court for defective works which now require rectification. She sought damages in negligence, contract and a statutory action under Schedule 2, ss 60-62 of the Competition and Consumer Act 2012 (Cth) (Australian Consumer Law) for loss suffered as a result of the works performed by Mr Faris. She was successful, and the magistrate in the court below awarded her $107,819.24 plus interest: Savage v Faris [2018] ACTMC 17. For the sake of clarity, I note that the title of the published decision in the Court below contained a typographical error. I have referred to it in this decision using the correct spelling of Mr Faris’ name.

Mr Faris has appealed the decision of the Magistrates Court. In defending the appeal, Ms Savage filed an application on 21 December 2018 seeking security for her legal costs on appeal in the sum of $50,000 and that the appeal proceedings be stayed until such security is lodged by the appellant in the form required by the Court.

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 Faris v Savage

Details

AGLC: Faris v Savage [2019] ACTSC 94
Case: [2019] ACTSC 94
Decision Date: 11 April 2019

CaseChat Overview and Summary

The matter before the court was an appeal from the Magistrates Court of Victoria, initiated by the appellant, Faris, against a decision to order security for costs. The respondent, Savage, had applied for security for costs following the appellant's decision to appeal the original decision, which involved a dispute over damages. The appellant argued that the order for security for costs was unfair and disproportionate given the nature of the dispute and the appellant's financial situation.

The primary legal issue before the court was whether the appellant was impecunious and, if so, whether the appeal was without merit. The court needed to consider the appellant's financial circumstances and the merits of the appeal to determine whether the order for security for costs was justified. Additionally, the court had to assess the appellant's ability to pay the costs if the appeal were to be dismissed.

The court found that the appellant was not impecunious and that the appeal was not without merit. However, the court concluded that the appellant's financial situation was precarious enough to warrant an order for security for costs. The court reasoned that while the appellant was not entirely without means, their financial position was such that the risk of being unable to pay the costs if the appeal were dismissed was significant. Consequently, the court ordered the appellant to provide security for costs, as it was deemed necessary to protect the respondent from potential financial loss.

Orders

Orders of the court

See [39]

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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