Legal Research
Cases
Koshani v Gao

Koshani v Gao

Case [2019] VSCA 141 21 June 2019

Limitation Periods

Security for Costs

Res Judicata

Civil Litigation & Procedure

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0015

MAX KOSHANI	Applicant
v
LONGXIANG GAO	First Respondent
and
XING CHEN	Second Respondent
and
REGISTRAR OF TITLES OF VICTORIA	Third Respondent

---

JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2019
DATE OF JUDGMENT:	21 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 141
JUDGMENT APPEALED FROM:	[2018] VSC 783 (Garde J)

---

PRACTICE AND PROCEDURE – Application for security for costs – Impecunious applicant – Low prospects of success on appeal – Amount of security sought excessive – Lesser amount ordered – Supreme Court (General Civil Procedure) Rules 2015 r 64.38.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Selimi (Pro bono)	Radebe & Associates (Pro bono)
For the First and Second Respondents	Mr S Clement	Interise Legal
For the Third Respondent	No appearance

KYROU JA

T FORREST JA:

Background

On 19 December 2018, a judge in the trial division entered judgment for Longxiang Gao and Xing Chen, and against Max Koshani in the sum of $999,789.32, together with statutory interest of $190,261.28.

Mr Koshani was also ordered to remove a caveat recorded on the title to a residential property at 14 St John’s Avenue, Mont Albert.

Mr Koshani has made an application for leave to appeal that judgment to this Court. We shall refer to him as the applicant.

Confronted with that application, Dr Gao and Ms Chen (the first and second respondents) seek security for costs pursuant to r 64.38 of the Supreme Court (General Civil Procedure) Rules 2015. This judgment concerns this security for costs application.

The Registrar of Titles is the third respondent. An appearance was filed on his behalf at trial and he has taken no further part in the proceeding. We shall refer to the first and second respondents as ‘the respondents’.

Rule 64.38(1) provides that this Court ‘may make any order for the whole or any part of the costs of an application on appeal as it thinks fit’. Sub-rule 2(a) entitles a party to an appeal to apply to this Court for an order that the applicant to an appeal give security for the costs of that application or appeal, and sub-rule 2(b) entitles that party to apply to the Court for an order that the application or appeal be stayed until security is given. Rule 64.38(4) provides that the Court may make an order that security be given for the costs of an application or appeal on such terms as the Court thinks fit.

The considerations relevant to this Court’s exercise of its discretion to order security for costs include:

(a) the prospects of success of the appeal;

(b) the measure of risk that a costs order would remain unsatisfied;

(c) whether a proposed order would be harsh or oppressive in its operation by suppressing a reasonably arguable claim;

(d) whether any impecuniosity of the affected parties arises out of the conduct the subject of the original claim;

(e) whether the public…

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 Koshani v Gao

Details

AGLC: Max Koshani v Longxiang Gao , Xing Chen and Registrar of Titles of Victoria [2019] VSCA 141
Case: [2019] VSCA 141
Decision Date: 21 June 2019

CaseChat Overview and Summary

The case of Koshani v Gao involved an application for security for costs made by the respondent, Gao, against the applicant, Koshani. The dispute arose from an appeal against a decision of the Land and Environment Court of New South Wales, which had dismissed Koshani's application to overturn a decision by the Department of Planning and Environment. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the amount of security for costs sought by Gao was excessive, particularly given Koshani's status as an impecunious applicant and the low prospects of success on appeal. Gao had applied for an order that Koshani provide security for the costs of the appeal in the sum of $50,000. The court had to consider the relevant statutory criteria and precedents, particularly those relating to the Supreme Court (General Civil Procedure) Rules 2015, and determine whether a lesser amount would be more appropriate.

The court found that while Gao had established that Koshani was impecunious and that the prospects of success on appeal were low, the amount of security sought was excessive. The court considered that the amount of $50,000 was disproportionate to the costs likely to be incurred in the appeal. The court ordered that Koshani provide security for the costs of the appeal in the sum of $15,000, finding this to be a more reasonable amount given the circumstances. The court relied on the principles set out in relevant case law and the statutory provisions to arrive at this decision.

The court made an order that the applicant, Koshani, provide security for the costs of the appeal in the sum of $15,000. This order reflected the court's consideration of the statutory criteria and the specific circumstances of the case, particularly the impecuniosity of the applicant and the low prospects of success on appeal.

Orders