Hussain v Ngep

[2015] ACTCA 46

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Hussain & Anor v Ngep & Anor

Citation:

[2015] ACTCA 46

Hearing Date:

5 August 2015

DecisionDate:

5 August 2015

Before:

Murrell CJ

Decision:

The second appellant is to provide security for the first and second respondents' costs of the proceedings in the amount of $9,500.

Category:

Interlocutory application

Catchwords:

PROCEDURE – Costs – security for costs – appellant – corporation

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1901

Parties:

Mohammad Hussain (First Appellant)

M.M. International (Australia) Pty Ltd (Second Appellant)

Sok Kheng Ngep (First Respondent)

Angkor What Pty Ltd (First Respondent)

Representation:

Counsel

No appearance (First and Second Appellant)

Mr R Barnett (First and Second Respondent)

Solicitors

No appearance (First and Second Appellant)

A Backhouse & Associates (First and Second Respondent)

File Number:

ACTCA 25 of 2015

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Mossop M

Date of Decision:         1 April 2015

Case Title:  Hussain & Anor v Ngep & Anor

Citation: [2015] ACTSC 71

MURRELL CJ:

1. I am satisfied that the application for security for costs was served on the appellants; Mohammad Hussain and M.M. International (Australia) Pty Ltd.  The application was returnable on an earlier date, and on that date the application was adjourned to today. I am satisfied that the appellants received notice of the adjourned date.

1. The appellants were called at 10.20am today and there was no appearance. The Court was provided with an email dated 23 July 2015.  The email indicates that the first appellant, Mr Hussain, suffers from medical problems, including depression.  He is involved in numerous proceedings in New South Wales and the ACT.  The email says that Mr Hussain is unable to prosecute the various proceedings because he suffers from depression and, possibly, because he suffers from other medical issues.

1. However, there is no information explaining why the appellants are not represented today.  Yesterday, Mr Hussain delivered subpoenas to the solicitors for the respondents, and was observed to be in apparent good health.

1. In these circumstances, I am prepared to proceed with the application for security for costs.

1. The original proceedings came before the Magistrates Court. In those proceedings, the respondents claimed damages based on a contract for sale of a vehicle to the appellants.  On 7 October 2014, the Magistrates Court gave judgment for the respondents in the sum of $18,034.27.

1. The appellants sought to appeal to this Court, but the appeal was lodged out of time.

1. Mossop M (as his Honour then was) refused the appellants’ application for leave to proceed out of time.  The appellants then lodged an appeal to the Court of Appeal.

1. The judgment for $18,034.27 has never been stayed. 

1. The respondents made a statutory demand on the second appellant. The demand was not answered.  There was no application to set aside the demand.

1. As a consequence, the second appellant is deemed to be insolvent.

1. There is other supporting evidence indicating that the second appellant is insolvent. The respondents issued a subpoena to a taxi service of which the second appellant is a member.  The documents produced in response to the subpoena indicate that the second appellant may be trading while insolvent.

1. The respondents issued subpoenas requiring the first appellant to produce financial records, but there has been no response, causing further concern regarding the solvency of the appellants.

1. The fact that the appellants have failed to appear in response to this application reinforces my concern about their solvency.

1. The respondents estimate that the likely costs of defending the appeal are $9,500. I consider that to be a modest assessment.

1. The Court retains a general discretion in relation to costs, but is guided by the Court Procedures Rules 2006 (ACT) (CPR).

1. The rules governing security for costs are contained in Div 2.17.8 of the CPR. Pursuant to r 1901 of the CPR:

The court may order [an appellant] to give security for costs only if satisfied:

(a)   the plaintiff is a corporation and there is reason to believe the plaintiff will not be able to pay the defendant's costs if ordered to pay them.

1. The other parts of r 1901 of the CPR are not relevant for present purposes.

1. The second appellant satisfies the requirements of r 1901 of the CPR; it is a corporation and there is reason to believe that it would be unable to pay the respondents’ costs, if ordered to do so.

1. There is no equivalent sub-rule enabling the Court to make an order for security for costs against the first appellant.

Orders

1. I make the order sought in paragraph 1 of the application filed on 30 June 2015.

1. The second appellant is to provide security for the first and second respondents' costs of the proceedings in the amount of $9,500.

1. That sum is to be paid into Court within 14 days, i.e. by 19 August 2015.

1. I reserve the costs of this application.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: 28 August 2015