Hussain v Ngep (No 3) - [2015] ACTCA 50

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…

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: [2015] ACTCA 50
Decision Date: 16 September 2015

CaseChat Overview and Summary

This matter concerned an appeal from an order made by Robinson AJ requiring the appellants to provide security for costs. The primary dispute involved an application to strike out the appellants' proceedings due to their failure to comply with the earlier order for security for costs. The appeal was heard by Murrell CJ in the Supreme Court of New South Wales.

The central legal issue before Murrell CJ was whether the order striking out the appellants' proceedings for non-payment of security for costs was appropriate, or if the court should have granted an extension of time for the appellants to comply with the security order. This required consideration of the principles governing the grant of security for costs and the circumstances under which a party may be relieved from the consequences of non-compliance.

Murrell CJ reasoned that the appellants had not demonstrated sufficient grounds to warrant an extension of time for compliance with the security for costs order. The court applied the principles that security for costs is a mechanism to protect respondents from the risk of an impecunious appellant being unable to pay costs if unsuccessful, and that orders for security must generally be complied with. In the absence of compelling reasons, such as a genuine inability to comply coupled with a strong prospect of success in the substantive proceedings, an extension would not be granted.

The appeal was dismissed. All matters were to be listed before Robinson AJ on 24 September 2015, with the appellants to be notified of this listing by registered post.

Orders

Orders of the court

All matters listed before Robinson AJ on 24 September 2015. Appellants to be notified of listing by registered post.

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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