Love v Roads Corporation
[2012] VSCA 269
•14 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0015 | |
| THOMAS JAMES LOVE | Appellant |
| v | |
| ROADS CORPORATION | Respondent |
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| JUDGES | REDLICH JA and DAVIES AJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 14 September 2012 | |
| DATE OF JUDGMENT | 14 September 2012 | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 269 | |
| JUDGMENT APPEALED FROM | [2010] VSC 537 (Vickery J) | |
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APPEAL – Security for costs – Impecuniosity of appellant – Whether sufficient justification for order – Estimates of preparation time and duration of appeal not accepted – Security ordered.
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APPLICATION ON SUMMONS
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J Delany SC with Mr S Goubran | Garland Hawthorn Brahe |
| For the Respondent | Mr G Uren QC with Mr D Deller | Blue Rock Law |
REDLICH JA:
DAVIES AJA:
The respondent by summons seeks an order pursuant to Order 64.24(2) of the Supreme Court (General Civil Procedure) Rules 2005 that the appellant provide security for costs in the sum of $255,230.70, or any other such sum as the court deems appropriate and that the appeal be stayed if security for costs is not provided.
There have been a number of proceedings between the parties, all of which arise out of compulsory land acquisition of the appellant’s property by Roads Corporation (‘the Corporation’). On 11 February 2002, the Corporation compulsorily acquired land belonging to the appellant, comprising 25.62 hectares of land at 410 Cooper St, Epping, by notice published in the Government Gazette. The land had been held in Mr Love’s family since 1915. The land was acquired for the purpose of constructing the Craigieburn Bypass pursuant to Part 2 of the Land Acquisition and Compensation Act 1986 (Vic) (‘the LAC Act’).
The Corporation offered the appellant $2,488,295 by way of compensation for the acquisition and paid the appellant an advance on that amount on 9 January 2004. The following year the Corporation advanced a further amount of $218,700 in line with a revised offer of $2.7 million. The appellant disputed the compensation amount initially claiming that he was entitled to $8.9 million and later claiming a total of $45.27 million plus interest.
The trial proceeding was commenced, by the Corporation, on 28 June 2004 by way of referral of a disputed claim under s 80 of the LAC Act. The Corporation made an offer without prejudice save as to costs of $5.96 million plus interest and costs on 20 March 2008, that was rejected by the appellant. The trial commenced on 10 May 2010 and involved 33 days of evidence and two days of final address. The appellant was unrepresented for much of the proceeding. At trial the parties remained approximately $28 million dollars apart as to the appropriate compensation which was explained by the parties’ differing views of the ‘highest and best use to which the land might be put.’
On 26 November Vickery J published lengthy reasons in which he rejected the appellant's contention that a combined future quarry landfill operation represented the highest and best use of the land at the relevant date and found that the highest and best use of the land was and remains, future industrial use, as the Corporation had argued. Accordingly, Vickery J awarded the appellant $2.5 million for the market value of his property and a number of other sums for other claims, making a total compensation amount of $2.822 million.
Justice Vickery delivered a separate costs decision,[1] in which his Honour ordered the appellant to pay the Corporation’s costs:
on a party-party basis up to 15 November 2007;
on a solicitor-client basis from 16 November 2007 up until the completion of the trial; and
of the costs application heard 6 December 2010.
[1]Roads Corporation v Love [2010] VSC 581.
His Honour found that the appellant had unreasonably refused the Calderbank offer in all the circumstances, which justified making costs orders against him.
The appellant appealed against the judgment of Vickery J and the costs decision.
Strike out application
By summons dated 2 March 2011, the Corporation sought orders striking out grounds of the appellant’s Notice of Appeal and the appellant then sought leave to amend his Notice of Appeal. The application was heard by Warren CJ and Cavanough AJA on 7 March 2012. Their Honours dismissed the Corporation’s summons and gave leave to the appellant to file an amended Notice of Appeal which was filed on 8 March 2012.
Security for costs application
Rule 64.24 of the Supreme Court Rules relevantly that
(2)The Court of Appeal may in special circumstances make an order that security be given for the costs of an appeal.
The question is whether the court considers that the combination of circumstances are special so as to render it just to make the order sought. The factors constituting ‘special circumstances’ will vary depending on the circumstances of each particular case.[2]
[2] King v Commercial Bank of Aust (1920) 28 CLR 289, 292 (Rich J).
The grant of an order for security for costs being discretionary, there has probably been far too much said over recent years about what constitutes ‘special circumstances’ which bear on its exercise.[3]
[3]Cretazzo v Lombardi (1975) 13 SASR 4, 11 (Bray J).
The following matters have been repeatedly recognised as relevant to the exercise of the discretion:
(a) the prospects of success of the appeal
(b) the risk that a costs order would not be satisfied because of the appellant’s impecuniosity;
(c) whether the making of an order would be oppressive in that it would stifle a reasonably arguable claim;
(d) whether any impecuniosity of the appellant arises out of the conduct complained of;
(e) whether there are other aspects of public interest which weigh in the balance against such an order; and
(f) whether there are any other particular discretionary matters peculiar to the circumstances of the case.[4]
[4]Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972; applied by this court in Maher v Commonwealth Bank of Australia [2008] VSCA 122; Li v Herald and Weekly Times (Unreported, court of Appeal, Nettle and Redlich JJA, 25 July, 2007).
The appellant’s asserted impecuniosity
The Corporation submits that Mr Love’s impecuniosity constitutes special circumstances and justifies the making of an order for costs as Mr Love would not be able to satisfy any order made requiring him to pay the costs of the appeal. The Corporation has referred the Court to a number of cases where security for costs was ordered in circumstances where the appellant was impecunious.[5] None are authority for the proposition that it is not necessary to take account of all other relevant considerations. An appellant's impecuniosity may prove to be a significant factor in making such an order but that will be so because there are no other factors which militate against the making of the order so that the circumstances of the particular case require that it be given decisive weight.[6]
[5]See Li v Herald and Weekly Times (Unreported, Court of Appeal, Nettle and Redlich JJA, 25 July, 2007); McDonald v Finlayson [2009] VSCA 76; Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd [2004] 9 VR 382 (Callaway J); Mobilia v Voudiotis [2002] 4 VR 327 (Batt JA); Scerri v Northam Holdings Pty Ltd [1967] VR 674.
[6]Ibid.
The Corporation submitted that Mr Love currently has substantial liabilities that include his own costs of litigation that are in excess of $16 million. It deposes that it believes that the appellant would not be able to satisfy an order requiring him to pay the costs of the appeal. It outlined the following approximate amounts owed by the appellant in relation to various proceedings with the Corporation; $10.7 million to the Corporation subject to taxation of various costs orders; $1.65 million to the State of Victoria; $4 million to his former solicitors.
The Corporation relies on the fact that in 2011 there was a sale of some of the appellant's property that in July 2012 the appellant's mortgagees forcibly sold two of four parcels of land then owned by him. The remaining parcels of land are mortgaged and the financial institutions have lodged caveats. It also relies on the fact that on 8 May 2012, Ms Love lodged caveats over all of Mr Love's remaining land claiming an interest in fee simple. The Corporation has submitted that the caveat is ‘an attempt by Mr and Mrs Love, who remain husband and wife and living together at Cooper Street, Epping to seek to place Mr Love’s assets, such as they are, out of the reach of the Corporation and to avoid complying with any costs order of this Court.’[7]
[7]Corporations submissions filed 24 August, 2012.
The Corporation also submits that during the course of another proceeding[8] Mr Love gave evidence of his deteriorating financial position: ‘we were lumbered with so much debt… that we were not in a financial position to do anything’. The Corporation further noted that a second mortgagee sale has occurred, at a much lower price per hectare than the 2011 mortgagee sale.
[8]The O’Herns Road Proceeding, relating to he compulsory acquisition of 1.999 hectares of Mr Love’s land along O’Herns Rd. The matter commenced before McMillan J on 25 July 2012. Judgement is reserved.
The appellant relies upon the delay by the corporation in seeking an order for security for costs, the delay being something in the order of 18 months since the appeal was instituted. The appellant points to the fact that he has incurred costs since the appeal was instituted and prior to the corporation making the present application. Of significance, however, is the fact that the appellant does not say that he cannot meet a security for costs order. The appellant submits that the Corporation has failed to establish that he is impecunious and that even if that were so impecuniosity alone is not enough to justify the court ordering security for costs. The appellant is not bankrupt and is still in possession of most of his assets. He relied upon the fact that most of his present financial difficulties arise directly as a result of the litigation that he is involved in with the Corporation and that if he is successful in his appeal, a substantial part of his present financial difficulties will be removed.
The Corporation has not demonstrated, in our view, that the appellant would not be able to satisfy a costs order at the conclusion of the appeal. However it has shown that the appellant is presently very heavily in debt and that there is a very real risk that by the time of the appeal, he may be unable to pay the Corporation’s costs, should he fail in his appeal.
The appellant contends that he has at least shown that the judgment below is not free from doubt. The first ground of appeal relates to the conduct of the trial itself. Following the 35 day trial Vickery J ordered that the parties prepare and submit draft judgments. The Corporation had been represented through out the trial, by senior counsel and two junior counsel, the appellant was self represented.
The Corporation submitted a draft judgment in excess of 200 pages, the appellant submitted a draft judgment of 50 pages. It is contended that the trial judge, by requesting that draft judgments be submitted by the parties, offended procedural fairness by adopting a rarely used procedure that unfairly disadvantaged the appellant, a self represented litigant, The appellant further submits this raised an important public interest issue. The Corporation has advanced no written argument addressing the merit of the appeal and its prospects of success. The dismissal of the Corporation's strike out application and the grant of leave to file an amended Notice of Appeal supports the view at least that the appeal is not hopeless or has a high degree of probability of failure.[9]
[9]Kenyon v Akeroyd [2007] VSCA 70, [13].
The grounds of appeal relied upon by the appellant raise reasonably arguable questions of law and at least the first ground is said to have a wider public interest implication. These are circumstances which militate against the imposition of a costs order or at least an order of the magnitude proposed.
The amount of $255,230.70 sought as security for its costs is based on a report compiled by Megan Austin, a costs lawyer in the employ of Harris Cost Lawyers Pty Ltd.[10] The amount is far in excess of the amounts commonly sought by way of security for costs of an appeal. It is explained by reference to the vast amount of material that would comprising the appeal books, the amount of preparation which would involve senior and junior counsel over a protracted period and an anticipated five day appeal. It is accepted that an appeal of that duration would be quite extraordinary.
[10]See ‘Report dated 10 August 2012’ being exhibit A to the affidavit of Megan Kay Austin (sworn 10 August 2012).
The appellant submits that the instructions upon which the costs consultant’s estimate rests resulted in a considerable inflation of the work required for the
appeal.[11] Although the Corporation denies this is so, we are far from persuaded that a number of the assumptions upon which the costs estimate rests are correct. We accept that they have been calculated on a party/party basis but they involve a quite extraordinary preparation time and the anticipated length of 5 days is also exceptional. We are not satisfied that we should make an order for costs in the amount for which security is sought, it being an amount well beyond the usual orders that are made for security.
[11]Appellant’s Outline of Submissions on Security for Costs (dated 3 September 2012), [26].
Although there are, considerations which lead both ways on this application, significantly, the appellant has not stated that he would be unable to meet any security for costs order or that he would be unable to proceed with his appeal if such an order is made.
We have come to the conclusion that it is appropriate to order that the appellant provide security for the Corporation’s costs in the amount of $85,000 to cover a modest amount of preparation and an appeal of much shorter duration than that presently envisaged by the Corporation. We will require the appellant to give security for the Corporations costs within 14 days and that failing such payment, the appeal be stayed. Such orders will not preclude the appellant from seeking relief in the event that he is unable to comply with the order.
The orders of the Court will therefore be as follows:
1.The appellant give security for the respondent's costs in the sum of $85,000 within 14 days of the date of this order.
2.If the appellant does not comply with para.1 of these orders, the appeal is stayed.
(Discussion re costs)
3.That the appellant pay the respondent's costs of and incidental to the summons.
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