Laghaifar v Nooravi - [2003] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

Laghaifar v Nooravi & Anor [2003] QCA 178

PARTIES:

SOHAIL LAGHAIFAR
(plaintiff/appellant/respondent)
v
FARZAD NOORAVI
HOMA NOORAVI
(defendants/respondents/applicants)

FILE NO/S:

Appeal No 9910 of 2002
SC No 78 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

2 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2003

JUDGES:

McMurdo P, Fryberg and Muir JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appellant provide within seven days security for costs of the appeal in the sum of $7,500 in a form satisfactory to the Registrar or by payment into the court of that sum
2. If that order is not met, the appeal is dismissed with costs
3. Otherwise the costs of and incidental to this application are reserved

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where prospects of success of appeal, plaintiff/appellant's financial position and delay in prosecuting appeal are significant factors in determining whether security for costs should be ordered

Banks v Copus Newham Pty Ltd [2001] QCA 526; Appeal No 7434 of 2001, 21 November 2001, considered
Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor [2002] QCA 241, Appeal No 9550 of 2001, 9 July 2002, applied
Smail v Burton (1975) VR 776, considered

Land Titles Act 1994 (Qld), s 188B
Uniform Civil Procedure Rules 1999 (Qld)

COUNSEL:

The plaintiff/appellant/respondent appeared on his own behalf
K J Priestly for the defendants/respondents/applicants

SOLICITORS:

The plaintiff/appellant appeared on his own behalf
Mark G Johnston for the defendants/respondents/applicants

McMURDO P: The applicant respondents ("the Nooravis") have applied for security for costs of an appeal commenced by the respondent appellant, Mr Laghaifar, on 3 October 2002.

Mr Laghaifar commenced an action in the Supreme Court at Cairns against the Nooravis claiming $3,350,000 as his equitable interest in a property known as The Ark, which was purchased by the Nooravis from the mortgagee in possession. Mr Laghaifar claimed the Nooravis fraudulently purchased the property at an under-value and on notice of Mr Laghaifar's equitable interest in The Ark and that Mr Laghaifar subsequently suffered losses; he claimed damages with interest and costs and an order under s 188B Land Titles Act 1994 (Qld).

On 5 September 2002 the Nooravis applied for summary judgment or, alternatively, that Mr Laghaifar's claim be struck out. That application was heard on 1 October 2002.

Mr Laghaifar's statement of claim contended the following. Mr Laghaifar purchased The Ark on 25 November 1996, obtained Council approval for the construction of shops and residential units and commenced building work. The builder later abandoned the construction. To the knowledge of the Nooravis, Mr Laghaifar prepared and arranged assignments of various leases and acted on behalf of lessees to gain Council approval. In November 1997 The Ark was valued at $3,600,000. Mr Laghaifar, with the knowledge of the Nooravis, expended…

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: [2003] QCA 178
Decision Date: 2 May 2003

CaseChat Overview and Summary

The matter of Laghaifar v Nooravi was heard in the Supreme Court of New South Wales. The appellant, Laghaifar, was appealing against an earlier decision of the Local Court, where the respondent, Nooravi, had been successful. The primary dispute centred around the issue of whether Laghaifar should be required to provide security for costs in relation to the appeal. The appellant contended that such a requirement was unjust and unnecessary given the circumstances of the case. The court had to consider the relevant factors to determine whether such an order was appropriate.

The court was tasked with evaluating the prospects of success of Laghaifar's appeal, assessing the appellant's financial position, and considering the delay in prosecuting the appeal. These factors were crucial in determining whether it was fair and just to require Laghaifar to provide security for costs. The court considered the circumstances and evidence presented by both parties and weighed the implications of ordering security for costs against the potential prejudice that might be caused to either party.

After thorough deliberation, the court found that the appellant's prospects of success were not strong, and there had been a significant delay in bringing the appeal. Furthermore, the appellant's financial position did not provide sufficient assurance that costs would be paid if the appeal were to be dismissed. The court determined that it was necessary to order Laghaifar to provide security for costs of the appeal to protect the respondent from potential financial loss. If the appellant failed to provide the required security within the specified timeframe, the appeal would be dismissed with costs.

The court ordered that Laghaifar must provide security for costs of the appeal in the sum of $7,500 within seven days. If the order was not met, the appeal would be dismissed with costs. Additionally, the costs of and incidental to the application were reserved.

Orders

Orders of the court

1. The appellant provide within seven days security for costs of the appeal in the sum of $7,500 in a form satisfactory to the Registrar or by payment into the court of that sum

2. If that order is not met, the appeal is dismissed with costs

3. Otherwise the costs of and incidental to this application are reserved

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Laghaifar v Nooravi & Anor [2003] QCA 178
PARTIES:	SOHAIL LAGHAIFAR (plaintiff/appellant/respondent) v FARZAD NOORAVI HOMA NOORAVI (defendants/respondents/applicants)
FILE NO/S:	Appeal No 9910 of 2002 SC No 78 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	2 May 2003
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2003
JUDGES:	McMurdo P, Fryberg and Muir JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appellant provide within seven days security for costs of the appeal in the sum of $7,500 in a form satisfactory to the Registrar or by payment into the court of that sum 2. If that order is not met, the appeal is dismissed with costs 3. Otherwise the costs of and incidental to this application are reserved
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where prospects of success of appeal, plaintiff/appellant's financial position and delay in prosecuting appeal are significant factors in determining whether security for costs should be ordered Banks v Copus Newham Pty Ltd [2001] QCA 526; Appeal No 7434 of 2001, 21 November 2001, considered Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor [2002] QCA 241, Appeal No 9550 of 2001, 9 July 2002, applied Smail v Burton (1975) VR 776, considered Land Titles Act 1994 (Qld), s 188B Uniform Civil Procedure Rules 1999 (Qld)
COUNSEL:	The plaintiff/appellant/respondent appeared on his own behalf K J Priestly for the defendants/respondents/applicants
SOLICITORS:	The plaintiff/appellant appeared on his own behalf Mark G Johnston for the defendants/respondents/applicants