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Giurina v Deak (No 2)

Giurina v Deak (No 2)

Case [2019] VSC 237 10 April 2019

Security for Costs

Limitation Periods

Discretionary Factors

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
IN THE JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 00168

ERMANNO GIURINA	Applicant
v
MARIA DEAK & ORS (according to the attached schedule)	Respondents

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2019
DATE OF RULING:	10 April 2019 (given ex tempore, revised 12 April 2019)
CASE MAY BE CITED AS:	Giurina v Deak & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 237

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PRACTICE AND PROCEDURE – Security for costs – Principles to apply in appellate context where appellant is an individual – Non-payment of numerous previous costs orders sufficient evidence of risk that future costs order if the appeal is unsuccessful will not be satisfied – Consideration of discretionary factors weigh in favour of granting security – Houlahan & Ors v Trentham Investment Management Pty Ltd & Anor (No 2) [2016] VSC 445 – Morag Atwell v Dennis Turner & Ors [2017] VSC 212

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondents	Ms G S J. Berlic	Wisewould Mahony Lawyers

JUDICIAL REGISTRAR:

By way of summons filed 15 February 2019, the respondents seek from the applicant security for their costs of the appeal.[1]
[1]By order made on the Court’s own motion, the application for security for costs was referred to me for hearing and determination, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

Background

This proceeding concerns an appeal from orders made by Associate Justice Ierodiaconou on 31 July 2018 following the decision made by her Honour in Giurina v Deak & Ors.[2] In that decision, her Honour declined the applicant’s application for a stay until a related proceeding had been determined, and granted the respondents’ application for summary dismissal of the applicant’s application for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) to refuse to reinstate a proceeding brought in that tribunal (‘VCAT Decision’).
[2][2018] VSC 409 [‘Reasons’].

In support of their application for security for costs, the respondents rely on an affidavit of Robert Michael McGirr, sworn 15 February 2019 (‘Fourth McGirr Affidavit’). Mr McGirr is a partner at the firm Wisewould Mahony Lawyers (‘WML’), solicitors for the respondents. The respondents also rely on an affidavit of Raymond John De La Rue, sworn 4 March 2019. Mr De La Rue is a legal costs consultant.

In opposition to the application for security for costs, the applicant, Ermanno Giurina, relies on two affidavits sworn by him, one on 4 March 2019 (‘First Giurina Affidavit’), and one on 22 March 2019 (‘Second Giurina Affidavit’).

The background to these proceedings is lengthy and extensive, and I see no utility in setting that out here. The background to the proceeding can be found in the Reasons and unless otherwise referred to below, I see no reason to…

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 Giurina v Deak (No 2)

Details

AGLC: Giurina v Deak (No 2) [2019] VSC 237
Case: [2019] VSC 237
Decision Date: 10 April 2019 (given ex tempore, revised 12 April 2019)

CaseChat Overview and Summary

The appellant, Giurina, sought an appeal from a decision made by the respondent, Deak, to grant security for costs. The dispute involved a previous judgment where Giurina was ordered to pay substantial costs to Deak, which were not satisfied. The matter was heard in the Supreme Court of Victoria. The central legal issue the court had to determine was whether the appellant, as an individual, should be required to provide security for costs in an appellate context, considering the non-payment of numerous previous costs orders.

The court examined the principles applicable to security for costs in an appellate context, particularly focusing on the risk that if the appeal was unsuccessful, the future costs order would not be satisfied. The court noted that the non-payment of previous costs orders was sufficient evidence of this risk. The discretionary factors considered included the appellant's financial situation, the likelihood of success of the appeal, and the public interest in encouraging litigation. The court referred to precedents such as Houlahan & Ors v Trentham Investment Management Pty Ltd & Anor (No 2) [2016] VSC 445 and Morag Atwell v Dennis Turner & Ors [2017] VSC 212, which provided guidance on similar issues. The court concluded that the discretionary factors weighed in favour of granting security for costs, given the appellant's history of non-compliance with previous costs orders.

The court granted the respondent's application for security for costs, ordering the appellant to provide security in the form of a bond. The court emphasised the importance of complying with court orders to avoid the need for further security applications. The decision highlighted the court's commitment to ensuring that costs orders are enforced and that parties do not unduly delay proceedings by failing to pay costs. The court's decision was grounded in the need to protect the respondent from potential financial loss and to uphold the integrity of the legal process.

Orders