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…