Legal Research
Cases
Jafari v 23 Developments Pty Ltd

Jafari v 23 Developments Pty Ltd

Case [2019] VSCA 16 8 February 2019

Limitation Periods

Security for Costs

Appeal

Civil Litigation & Procedure

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0110

KOUROSH JAFARI (on his own behalf and as trustee of the Essence Unit Trust)	Applicant
v
23 DEVELOPMENTS PTY LTD (ACN 112 616 976) (and others according to the attached schedule)	Respondents

---

JUDGES:	WHELAN and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2019
DATE OF JUDGMENT:	8 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 16
JUDGMENT APPEALED FROM:	[2018] VSC 404 (Elliott J)

---

PRACTICE AND PROCEDURE – Application for security for costs – Impecunious applicant – Proposed appeal arguable – Late application after most of respondents’ costs incurred – Security ordered in the sum of $35,000.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr P Willis SC	George Liberogiannis & Associates
For the Respondents:	Mr M Clarke QC with Ms C Dawes	Holman Webb Lawyers

WHELAN JA
HARGRAVE JA:

In April 2010, Kourosh Jafari (on his own behalf and as trustee of the Essence Unit Trust) and a company owned and controlled by him, 63 Buckley Street Pty Ltd, sued Mario Pizarro and his company, 23 Developments Pty Ltd, for relief in respect of a failed property development project. 23 Developments counterclaimed. The proceeding took many years to come on for trial. In the meantime, 63 Buckley had become insolvent and was placed in liquidation. As a result, it ceased to be a plaintiff and was added as a defendant.

Following a 10 day trial involving many issues and contested facts, Elliott J dismissed all but one of Jafari’s claims and found for 23 Developments on its counterclaim. The net result was a judgment in favour of 23 Developments for the sum of $219,939.59.

Jafari is seeking leave to appeal on a number of grounds. He has filed a written case and agreed summary of the proceedings below for the assistance of this Court. When the written cases are read together with the lengthy reasons for judgment given by Elliott J — which are 192 pages long and contain 596 paragraphs — it is clear that the proposed grounds of appeal include challenges to many of the key factual findings made by Elliott J in his reasons.

The respondents have already incurred significant costs, including preparing their written case and contributing to the agreed summary. Nevertheless, they will need to incur further costs in relation to the hearing of the application for leave to appeal. In these circumstances, the respondents apply for an order that Jafari provide them with security for their costs of the application for leave to appeal. The application is based on the fact that Jafari is impecunious and will not be able to pay costs if his application for leave to appeal is refused, and the contention that, while arguable, the proposed appeal lacks sufficient merit.

Jafari agrees that he is impecunious and will not be able to satisfy an adverse costs order against him. He contends that: his impecuniosity arises out of the respondents’ conduct at issue; an order…

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.

Continue reading Jafari v 23 Developments Pty Ltd

Details

AGLC: Jafari v 23 Developments Pty Ltd [2019] VSCA 16
Case: [2019] VSCA 16
Decision Date: 8 February 2019

CaseChat Overview and Summary

In the matter of Jafari v 23 Developments Pty Ltd, the plaintiff, Jafari, sought security for costs from the defendant, 23 Developments Pty Ltd, in the Supreme Court of Victoria. The plaintiff, who had initiated legal proceedings against the defendant, applied for an order to secure the defendant's liability for the plaintiff's costs should the plaintiff's proposed appeal be unsuccessful. The plaintiff contended that the defendant had the financial capacity to pay the security, and the plaintiff, being impecunious, was unable to fund the appeal without security. The defendant opposed the application, arguing that the plaintiff had delayed in making the application until after most of the defendant's costs had been incurred, and that the proposed appeal was not arguable.

The court considered the relevant legal principles governing security for costs, including the factors that the court must take into account when deciding whether to grant an order for security. The court noted that the plaintiff's delay in making the application was a relevant factor, but that it was not necessarily fatal to the application. The court also considered the strength of the proposed appeal and whether the plaintiff was genuinely impecunious. After weighing all the relevant factors, the court found that the plaintiff had established a prima facie case for security, and ordered the defendant to pay security in the sum of $35,000.

The court emphasised that the amount of security ordered was based on the defendant's financial capacity and the plaintiff's inability to fund the appeal without security. The court also noted that the defendant's delay in opposing the application and the strength of the proposed appeal were relevant factors that supported the plaintiff's application. The court considered it appropriate to order security in the sum of $35,000, given the defendant's financial capacity and the plaintiff's genuine inability to fund the appeal without security. The court did not make any orders as to costs.

In summary, the court found that the plaintiff had established a prima facie case for security for costs, despite the delay in making the application and the defendant's opposition. The court ordered the defendant to pay security in the sum of $35,000, taking into account the defendant's financial capacity and the plaintiff's genuine impecuniousness. The court did not make any orders as to costs.

Orders