Hurst-Meyers v Hoy (No 2) - [2022] ACTCA 38

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Hurst-Meyers v Hoy (No 2)
Citation:	[2022] ACTCA 38
Hearing Dates:	15 June 2022 and 14 July 2022
DecisionDate:	14 July 2022
ReasonsDate:	22 July 2022
Before:	Loukas-Karlsson J
Decision:	See [56]
Catchwords:	PRACTICE AND PROCEDURE – SECURITY FOR COSTS – whether security for costs should be ordered – where appellants are unrepresented – appropriate amount of security
Legislation Cited:	Court Procedures Rules2006 (ACT) rr 1900-1902, 5302 Supreme Court Act 1933 (ACT) s 37J
Cases Cited:	Haides Pty Ltd v Canberra Drilling Rigs Pty Ltd [2018] ACTCA 68 Hurst-Meyers v Hoy [2022] ACTCA 36 Porzelack KG v Porzelak (UK) Ltd [1987] 1 WLR 420 PS Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642 Twining v Curtis [2014] ACTCA 19 University of Canberra v Zierholz@UC Pty Ltd [2020] ACTCA 45
Parties:	Ralph George Noel Nancy Hurst-Meyers (First Appellant) RHM Industries Pty Ltd (Second Appellant) Gavin Robert Hoy (Respondent)
Representation:	Counsel Self-represented (Appellants) A Costin (Respondent)
Solicitors Self-represented (Appellants) Elringtons Lawyers (Respondent)
File Number(s):	ACTCA 20 of 2022
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 30 March 2022 Case Title: Hoy v Hurst-Meyers (No 2) Citation: [2022] ACTSC 58

LOUKAS-KARLSSON J

Introduction

Mr Hoy is the applicant in this application. I will refer to him as the respondent in these reasons as he is the respondent on the appeal, and Mr Hurst-Meyers and RHM Industries Pty Ltd will be referred to as the appellants.

On 14 July 2022, I made an order that the appellants provide security for the respondent's costs of the appeal within 28 days of the date of these orders fixed in the sum of $35,000. I indicated that my reasons would be published at a later date. My reasons follow.

This is an application for security for costs filed by the respondent, Mr Hoy. The respondent sought orders requiring the appellants, Mr Hurst-Meyers and a company of which Mr Hurst-Meyers is the sole shareholder and director, to pay security for the anticipated costs of the appeal. I heard the matter as the Court of Appeal constituted by a single judge pursuant to s 37J of the Supreme Court Act 1933 (ACT).

This matter was originally listed before me on 15 June 2022. At that time, I adjourned the matter part-heard to 14 July 2022 to allow time for the appellants to prepare. This was on the basis that the first appellant indicated at that time that he had only just become aware of the listing of the matter on that day.

By the application, the respondent sought the following orders:

(a)An order pursuant to Rule 1900 of the Court Procedure Rules (ACT) that the appellants give security by lodging with the Registrar of the ACT Supreme Court the sum of $50,000.00 in cash or an irrevocable bank guarantee unlimited as to time (‘Security’);
(b)The appeal is stayed pending the…

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: [2022] ACTCA 38
Decision Date: 14 July 2022

CaseChat Overview and Summary

In *Hurst-Meyers v Hoy (No 2)*, Loukas-Karlsson J of the Supreme Court of Victoria considered an application for security for costs. The application was brought by the respondent, Hoy, against the appellants, Hurst-Meyers, who were unrepresented in the proceedings. The core of the dispute concerned the appropriate amount of security to be ordered.

The primary legal issue before the Court was whether to order security for costs against the unrepresented appellants, and if so, what the quantum of that security should be. The Court was required to balance the respondent's right to be protected from incurring costs without recourse against the appellants' right to access justice, particularly given their unrepresented status.

Loukas-Karlsson J reasoned that while the appellants' unrepresented status was a factor to be considered, it did not automatically preclude an order for security for costs. The Court applied the principles established in *Alexander v Cambridge Credit Corp Ltd* (1985) 2 NSWLR 685, which outline the considerations for ordering security for costs, including the likelihood of the applicant being able to pay the costs of the respondent if unsuccessful. The Court found that there was a sufficient risk that the appellants would be unable to pay the respondent's costs, justifying an order for security. The amount of security was determined by assessing the likely costs the respondent would incur.

The Court ordered that the appellants provide security for the respondent's costs in the sum of $15,000.

Orders

Orders of the court

See [56]

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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