Luc v Sazzi (SA) Pty Ltd - [2011] SASCFC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
LUC v SAZZI (SA) PTY LTD
[2011] SASCFC 137
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Kourakis)
16 November 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
PROCEDURE - COSTS - SECURITY FOR COSTS - OTHER MATTERS
Application for permission to appeal to the Full Court in private - the action involves Sazzi (SA) Pty Ltd ("the company") and five defendants - the action arises out of the circumstances under which the first four defendants terminated the company's lease of a premises, and the fifth defendant acquired a lease of the premises from the first four defendants - a Master of the District Court made an order that Sazzi (SA) Pty Ltd provide security for costs in the amount of $28,000 - a Judge of the District Court allowed an appeal against the decision by the Master and set it aside - the Judge then ordered that one of the shareholders of the company, the present respondent, give a personal guarantee in respect of the costs of the fifth defendant - the Judge also ordered that the director give an undertaking not to dispose of assets - whether it was reasonably arguable that the Judge placed too much weight on a relevant consideration.
Held: the Court is generally reluctant to grant permission to appeal against interlocutory orders in civil proceedings, and in particular against orders relating to questions of costs - however, this particular case raises several issues of principle - firstly, it is arguable that the Judge placed too much weight on a relevant consideration, and it is reasonably arguable that the decision to allow the appeal was wrong, for the same reason - secondly, the interrelationship between the principles governing applications for security for costs against natural persons and the principles applicable to corporations in circumstances such as these warrants closer consideration.
Permission to appeal to the Full Court in private granted, subject to the appellant satisfying the Full Court that the appeal lies to the Full Court and not to a single Judge.
District Court Act 1991 (SA) s 43(2); Surpeme Court Civil Rules 2006 (SA) r 280, referred to.
Sazzi (SA) Pty Ltd v Chang & Ors [2011] SADC 120; Epping Plaza Fresh Fruit and Vegetables Pty Ltd v Bevendale Pty Ltd [1999] VSCA 43; [1999] 2 VR 191; Specialised Explosives Blasting and Training Pty Ltd v Huddy's Plant Hire Pty Ltd [2009] QCA 254; (2009) 259 ALR 387; Harper v Ariadne Australia Ltd [1984] 2 Qd R 523, discussed.

LUC v SAZZI (SA) PTY LTD
[2011] SASCFC 137
Full Court: Doyle CJ, Kelly and Kourakis JJ

THE COURT: The appellant has applied for permission to appeal against a decision by a Judge of the District Court.
The Judge allowed an…

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: [2011] SASCFC 137
Decision Date: 16 November 2011

CaseChat Overview and Summary

This matter concerned an application for permission to appeal to the Full Court of South Australia. The original action involved Sazzi (SA) Pty Ltd and five defendants, arising from the termination of the company's lease and the subsequent granting of a new lease to one of the defendants. An initial order by a Master of the District Court required Sazzi (SA) Pty Ltd to provide security for costs amounting to $28,000. A Judge of the District Court subsequently allowed an appeal against this order, setting it aside and instead ordering that a shareholder of the company provide a personal guarantee for the costs of the fifth defendant, and that the company's director give an undertaking not to dispose of assets.

The Full Court was required to determine whether it was reasonably arguable that the District Court Judge had placed undue weight on a relevant consideration when allowing the appeal against the Master's order. The court also considered the interrelationship between the principles governing applications for security for costs against natural persons and those applicable to corporations in the circumstances presented.

The court acknowledged its general reluctance to grant permission to appeal against interlocutory orders, particularly those concerning costs. However, it found that this case raised several issues of principle. It was considered arguable that the Judge had given too much weight to a relevant consideration, potentially rendering the decision to allow the appeal erroneous for the same reason. Furthermore, the court identified a need for closer examination of how principles for security for costs apply differently to natural persons and corporations in such situations.

Orders