Giza v Waybecca Pty Ltd - [2016] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0002

RICHARD GIZA	Applicant
v
WAYBECCA PTY LTD (ACN 143 303 511)	Respondent

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 AUGUST 2016
DATE OF JUDGMENT:	1 AUGUST 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 184

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PRACTICE AND PROCEDURE – Costs – Security for costs – Application for security for costs of application for leave to appeal and appeal – Applicant seeking leave to appeal from order to which he is not a party – Applicant seeking leave to appeal a costs order made against him – Proceeding concerning property of modest value – Whether proposed grounds of appeal disclose sufficiently arguable claim of error – Failure to confine proceeding within reasonable bounds – Applicant for leave to appeal impecunious – Whether compliance with overarching obligations – Costs out of proportion to value of property in dispute – Civil Procedure Act 2010, ss 19,23 and 24 – Application for security for costs granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr P Baker	Falcone and Adams Lawyers

REDLICH JA
BEACH JA:

This is an application for security for costs brought by Waybecca Pty Ltd against Mr Richard Giza. The security is sought in respect of Waybecca’s costs of defending Mr Giza’s application for leave to appeal and (if leave is granted) Mr Giza’s appeal from orders made by Lansdowne AsJ on 30 November 2015. Waybecca seeks security from Mr Giza in the sum of $35,000.

History of the proceeding

The origins of the present application can be traced back to a proceeding in the Magistrates’ Court between Waybecca and one Joseph Vella. Mr Giza was not a party to this proceeding.

On 6 June 2014, a magistrate ordered that a registrar of the Magistrates’ Court execute a transfer of land to give effect to the settlement of a contract whereby Waybecca agreed to purchase a parking lot from Mr Vella for the sum of $15,000 plus GST. Subsequent to the making of this order, Mr Giza, a person not qualified as an Australian legal practitioner, purported to commence an appeal in the Supreme Court on behalf of Mr Vella.

On 13 August 2014, Lansdowne AsJ refused Mr Giza leave to appear on behalf of Mr Vella. Mr Giza, on behalf of Mr Vella, then sought to appeal the decision of Lansdowne AsJ. On 12 September 2014, Hargrave J dismissed this appeal, principally on the basis that Mr Giza’s proposed representation of Mr Vella was unlawful under the Legal Profession Act 2004, and ordered costs against Mr Vella and Mr Giza.[1] On 22 September 2014, Hargrave J ordered that the appeal from the Magistrates’ Court be referred to Lansdowne AsJ for hearing and determination pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005.[2]
[1]Vella v Wybecca Pty Ltd (Scil, Vella v Waybecca Pty Ltd) [2014] VSC 443.
[2]These rules were repealed and replaced…

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: [2016] VSCA 184
Decision Date: 1 AUGUST 2016

CaseChat Overview and Summary

Giza and Waybecca Pty Ltd were involved in a dispute concerning property of modest value, which was heard in the Supreme Court. Giza sought leave to appeal from an order made in the Land and Environment Court, to which he was not a party, and a costs order made against him. The court was required to determine whether Giza's proposed grounds of appeal disclosed a sufficiently arguable claim of error and whether the proceeding had been confined within reasonable bounds. Additionally, the court had to consider whether Giza's application for leave to appeal was compliant with overarching obligations, particularly in light of his impecuniosity and the disproportionate costs relative to the property value.

The court examined the proposed grounds of appeal and found them to be insufficiently arguable. It was noted that the proceeding had not been confined within reasonable bounds, leading to the conclusion that Giza's application for leave to appeal was not compliant with overarching obligations. Given Giza's impecuniosity and the disproportionate costs relative to the property value, the court considered that the applicant had not demonstrated a reasonable prospect of success on the appeal. Consequently, the court granted the application for security for costs.

In reaching its decision, the court considered the provisions of the Civil Procedure Act 2010, particularly sections 19, 23, and 24, which address security for costs. The court held that the applicant had not demonstrated a reasonable prospect of success on the appeal, and the costs of the application and appeal were out of proportion to the value of the property in dispute. The court also highlighted the importance of compliance with overarching obligations, particularly in cases involving parties of modest means.

The final orders of the court were that the application for security for costs was granted, and Giza was required to provide security for the costs of the application for leave to appeal and the appeal itself. The court emphasised the need for compliance with overarching obligations and the importance of proportionality in determining security for costs.

Orders