Gustin v Shalev (No 2)

[2020] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION:

Gustin v Shalev (No 2) [2020] QDC 2

PARTIES:

RICHARD GUSTIN
(appellant)

v

KUTY SHALEV
(respondent)

FILE NO/S:

1345/2019

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

15 January 2020

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

Written submissions 13 and 14 January 2020

JUDGE:

Reid DCJ

ORDER:

The appeal should be allowed.1.          

The judgments of the Magistrate’s Court of 12 October 2018 and of 16 April 2019 should be set aside.2.          

The appellant should pay the respondent’s costs of and incidental to the application for summary judgment of 12 October 2018 to be assessed on a standard basis.3.          

The appellant should pay the respondent’s costs of and incidental to the application to set aside the summary judgment, filed in the Magistrates Court on 12 December 2018, up to and including 30 January 2019, to be assessed on a standard basis. Thereafter costs of that application are each parties’ costs in the cause.4.          

The respondent pay the appellant’s costs of and incidental to the appeal, to be assessed on the standard basis.5.          

CATCHWORDS:

APPEAL – CIVIL PROCEDURE – COSTS – APPEAL FROM MAGISTRATE’S REFUSAL TO SET ASIDE SUMMARY JUDGMENT – whether to order successful appellant to provide security as condition of defending proceedings – alleged shadowy defence – where appellant previously self-represented – costs of application for summary judgment where defendant failed to appear – costs of application to set aside summary judgment where defence not properly articulated – costs of the appeal.

Brypat Pty Ltd v Endless View Holdings Pty Ltd [2005] QSC 171

Beynon v Aikman Stoddart Accountants Pty Ltd [2004] QSC 387.

COUNSEL:

P.D Tucker for the appellant
P.W Wacker for the respondent

SOLICITORS:

Aitken Whyte Lawyers for the appellant
Results Legal for the respondent

1. Following delivery of my judgment in respect of the substantial issues in the appeal of this matter I made orders for delivery of written submission concerning the orders to be made, including in relation to costs. A number of issues have arisen about the appropriate costs orders.

1. The first issue to resolve concerns the respondent’s submission that it is in the particular circumstances of this case appropriate to order that the appellant have leave to file its proposed amended defence and counterclaim only on condition that it first make payment of the sum of $US 63697 into court, or otherwise provide security in that sum in a form suitable to the registrar.

1. That submission finds its genesis in observations I made as to possible credit issues that the appellant may have, in view of email correspondence referred to in my judgment which may appear to cast doubt on his credibility.

1. In support of the submission counsel for the respondent referred to two decisions of Supreme Court judges; namely Brypat Pty Ltdv Endless View Holdings Pty Ltd [2005] QSC 171 at [39] and Beynon v Aikman Stoddart Accountants Pty Ltd [2004] QSC 387.

1. In my view this case is distinguishable from the circumstances in both those cases where the defences were referred to as “shadowy” or “apparently dubious”.  In this case the proposed amended defence and counterclaim and the Supreme Court statement of claim referred to in my judgment articulate apparently valid claims. Difficulties referred to in my judgment concerning the original defence can be seen to arise from the appellant’s use of language in emails and in that defence are perhaps explained by the fact that the appellant was self-represented and did not in either his pleading or correspondence use the language of a lawyer or of a more sophisticated business person when referring to a transaction in which he did in fact receive a loan or advance. Whilst acknowledging that fact, he did not clearly articulate the circumstances in which that sum was to be repaid; that is from future bonus payments as he now pleads.  Ultimately I do not think that the appellant’s case can be described as sufficiently “dubious” or that it so “stretches credulity” – descriptions used in Beynon v Aikman Stoddart Accountants Pty Ltd (supra) – as to justify the order sought.

1. The issue remains as to the appropriate orders as to costs of the appeal and of the application for summary judgment and to set it aside.

1. The appellant contends I should order:

1.          There be no order as to costs of the application for summary judgment of 12 September 2018.

2.          The parties’ costs of the application to set aside the summary judgment up to 29 February 2019 (mistakenly said to be 29 February 2020 in submissions) be the parties’ costs in the cause.

3.          The respondent pay the appellant’s costs of that application from “30 February 2020” (presumably 30 January 2019, being the date when the respondent received a copy of the appellant’s draft amended defence and counterclaim – see paragraph 5(c) of the respondent’s submission as to costs) on a standard basis.

4.          The respondent pay the appellant’s costs of the appeal.

1. By contrast the respondent sought orders that the costs of the appeal and costs associated with the summary judgment of 12 October 2018 and the Magistrate’s judgment of 16 April 2019, being the judgment appealed from, be costs in the cause.  Alternatively the respondent supported the orders foreshadowed in paragraph 42 of my earlier judgment.

1. In my view there is nothing to overcome my initial view that the appellant should pay the respondent’s costs of the application for summary judgment of 12 October 2018.  His failure to appear on that day led directly to the orders being made and materially contributed to the need to apply to set it aside.  Although the appellant contends that the respondent “was broadly aware of the substantive defence of the appellant since May 2018” by reason of the appellant’s defence, in my view that pleading does not reasonably articulate the defence on which he now relies.  The respondent was justified in then bringing the application, since he did not receive the draft amended defence and counterclaim until 30 January 2019. Only then was the real nature of that dispute reasonably evidenced.  Even then, no doubt, the respondent’s view of the merits of the appellant’s application to set aside the summary judgment filed on 12 December 2018 were clouded by the understandable view it took of email correspondence, some of which I have referred to in the judgment.  It is understandable that the respondent did not simply consent to the orders allowing the appeal and setting aside the summary judgment. 

1. Ultimately issues of costs must involve a moderately broad-brush approach.  I have ultimately concluded:

1.          The appeal should be allowed.

2.          The judgments of the Magistrate’s Court of 12 October 2018 and of 16 April 2019 should be set aside.

3.          The appellant should pay the respondent’s costs of and incidental to the application for summary judgment of 12 October 2018 to be assessed on a standard basis.

4.          The appellant should pay the respondent’s costs of and incidental to the application to set aside the summary judgment, filed in the Magistrates Court on 12 December 2018, up to and including 30 January 2019, to be assessed on a standard basis. Thereafter costs of that application are each parties’ costs in the cause.

5.          The respondent pay the appellant’s costs of and incidental to the appeal, to be assessed on the standard basis.