Hussain v Ngep (No 3)
[2015] ACTCA 50
•16 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Hussain & Anor v Ngep & Anor (No 3) |
Citation: | [2015] ACTCA 50 |
Hearing Date: | 16 September 2015 |
DecisionDate: | 16 September 2015 |
Before: | Murrell CJ |
Decision: | All matters listed before Robinson AJ on 24 September 2015. Appellants to be notified of listing by registered post. |
Category: | Interlocutory application |
Catchwords: | PROCEDURE – Costs – security for costs – strike out for non-payment of security PROCEDURE – Costs – security for costs – appeal from order to make payment for security of costs |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 37J(1) Court Procedures Rules 2006 (ACT) rr 425, 1901, 1904, 5012 |
Cases Cited: | Hussain & Anor v Ngep & Anor [2015] ACTCA 46 Hussain & Anor v Ngep & Anor (No 2) [2015] ACTCA 42 Hussain & Anor v Ngep & Anor [2015] ACTSC 71 |
Parties: | Mohammad Hussain (First Appellant) M.M. International (Australia) Pty Ltd (Second Appellant) Sok Kheng Ngep (First Respondent) Angkor What Pty Ltd (Second 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:
The Application
By an application filed in the Court of Appeal on 27 August 2015, the respondents sought an order that the appeal filed on 30 June 2015 by the first and second appellants be struck out pursuant to r 425 of the Court Procedures Rules 2006 (ACT) (CPR) on the ground that the second appellant has failed to comply with an order for security for costs that I made when sitting as the Court of Appeal on 5 August 2015: Hussain & Anor v Ngep & Anor [2015] ACTCA 46.
Rule 425 provides:
(1)The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading –
(a)discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or
(b)may tend to prejudice, embarrass or delay the fair trial of the proceeding; or
(c)is frivolous, scandalous, unnecessary or vexatious; or
(d)is otherwise an abuse of the process of the court.
History of the Matter
On 12 December 2012 the respondents commenced proceedings in the Magistrates Court, claiming damages 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. This judgment has never been stayed.
On 24 November 2014 the appellants sought leave to appeal out of time to the Supreme Court.
On 1 April 2015 Mossop M (as his Honour then was) refused leave to appeal, observing that the appeal appeared to be unmeritorious, and ordered the appellants to pay the respondents’ costs: Hussain & Anor v Ngep & Anor [2015] ACTSC 71.
By a document entitled “appeal from Master or Registrar – notice of appeal” referring to r 5012 of the CPR which was filed on 12 May 2015, the appellants sought to appeal that decision. This was not an appropriate way in which to commence proceedings in the Court of Appeal.
The respondents made a statutory demand on the appellants, which was not answered. There has been no application to set aside the statutory demand. As a consequence, the second appellant is deemed to be insolvent.
The respondents applied for security for costs of the “appeal” to the Court of Appeal, citing the deemed insolvency of the second appellant resulting from the statutory demand, and other evidence indicating that the appellants were insolvent.
On 5 August 2015, the application came before me sitting as a single judge constituting the Court of Appeal pursuant to s 37J(1) of the Supreme Court Act 1933 (ACT) (SCA).
The appellants did not appear on the application, although they had been served. However, the first appellant provided information to the Court to the effect that he was suffering from depression and other medical conditions. The evidence was vague. The respondents provided evidence that the first appellant had recently attended the office of the respondents’ solicitor in apparent good health.
Pursuant to r 1901 of the CPR, on 5 August 2015 I made an order for security for costs against the second appellant on the basis that it was a corporation and there was reason to believe that it was insolvent. The second appellant was ordered to pay $9500 (the estimated costs of the respondents in defending the appeal) within 14 days, i.e. by 19 August 2015.
On 12 August 2015, the appellants filed an application for leave to appeal to the Court of Appeal from the interlocutory order made on 5 August 2015.
On 19 August 2015, that application came before Robinson AJ. His Honour noted that he had no apparent jurisdiction to deal with the matter because there was no apparent right to appeal against a decision of the Court of Appeal constituted by single judge under s 37J(1) of the SCA. His Honour stood the application over to a date to be fixed: Hussain & Anor v Ngep & Anor (No 2) [2015] ACTCA 42. The matter is currently listed before the Deputy Registrar at 2:30PM on 24 September 2015
On 27 August 2015, the first respondent filed the current application seeking an order pursuant to r 425 of the CPR. The application was served on the appellants.
On 14 September 2015 the first appellant filed an affidavit in which he asserted that he was suffering from depression and physical ailments related to a recent change in cardiac medication. The affidavit annexed brief medical certificates and a letter from a counsellor. The letter indicated that, at least for the period mid-July to mid-August 2015, the first appellant suffered from stress, depression and anxiety and physical problems due to a medication change. Some of the first appellant’s problems were associated with accommodation difficulties. There was brief mention of the fact that, for periods during July/August 2015, the first appellant had to care for his sick wife. The first appellant also stated that, on 27 August 2015, his son was admitted to Canberra Hospital with dengue fever.
The affidavit went on to state that, despite these many difficulties, on 7 September 2015 the first appellant attended the Supreme Court for the purpose of seeking a subpoena that was designed to obtain evidence which would establish that the decision of the Magistrates Court was wrong.
Further, despite his illnesses, which have to date prevented the first appellant from attending Supreme Court hearings, the primary reason that the first appellant is unable to attend the Court today is because a matter is listed before the Sydney Local Court at 9:30AM today. Inferentially, the first appellant is travelling to Sydney to attend those proceedings.
Consideration of the Application before the Court
There are a number of difficulties associated with the strike out application before the Court today.
First, the associated application for leave to appeal the order for security for costs (non-payment of which is said to be the foundation for the strike out application) is not before the Court.
Second, in any event, it would be inappropriate for me to deal with the application for leave to appeal the security for costs order that I made.
Third, r 425 of the CPR is concerned with deficient pleadings but the respondents’ strike out application relies upon failure to pay security for costs rather than deficient pleadings.
After that difficulty was pointed out to the respondents, on 16 September 2015 the respondents sought and were granted leave to amend their application to seek dismissal of the proceedings pursuant to r 1904 of the CPR. Rule 1904 relevantly provides:
(1)This rule applies if the court orders the plaintiff to give security for costs.
...
(3)If security is not given under the order—
...
(b)the court may, on the defendant's application, dismiss all or part of the proceeding.
Fourth, the application was expressed to have been made on behalf of the first respondent. The respondents sought to amend the application by adding the second respondent. Leave was granted.
Finally, there may be a fundamental difficulty with the appellants’ appeal. As the order made by Mossop M refusing leave was an interlocutory order, it would be necessary for the appellant to be granted leave to appeal that decision to the Court of Appeal. Without the grant of leave, the Court of Appeal could not review the decision of Mossop M. As previously mentioned, as far as I am aware, no application for leave to appeal has been lodged.
In the hope that outstanding issues may be resolved, I make the following orders:
(a)The listing before the Deputy Registrar at 2:30PM on 24 September 2015 is vacated.
(b)The appellants’ application (to appeal the security for costs decision), the appellants’ “appeal” and the respondents’ application (to strike out or dismiss the appeal) are listed before Robinson AJ at 9:30AM on 24 September 2015.
(c)I direct the Registry to notify the appellants by registered mail posted today, 16 September 2015, that all matters connected with the Court of Appeal proceedings have been listed before Robinson AJ at 9:30AM on 24 September 2015 and that, in the event that they fail to appear, the appeal may nevertheless be struck out or dismissed on that day. The Registry is to notify the appellants by registered mail addressed to the appellants’ current address for service and any other address that has been advised to the Registry by email or otherwise. The Registry should ensure that clear evidence of service by registered mail is placed upon the file.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 22 September 2015 |
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