Legal Research
Cases
Mitrov Homes Pty Ltd v Mustafa

Mitrov Homes Pty Ltd v Mustafa

Link copied

Case Copied 30 August 2022 78 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2019 05718

MITROV HOMES PTY LTD (ACN 618 266 247)	Plaintiff
v
BUJAR MUSTAFA	First Defendant
NEZ LOCI	Second Defendant

---

JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2022
DATE OF JUDGMENT:	30 August 2022
CASE MAY BE CITED AS:	Mitrov Homes Pty Ltd v Mustafa
MEDIUM NEUTRAL CITATION:	[2022] VSC 501

---

PRACTICE AND PROCEDURE – Security for costs – General principles – Whether reason to believe company will be unable to pay costs – Weighing of discretionary factors – Whether ordering security would stultify proceedings – Whether person standing behind the plaintiff will benefit from the litigation if successful – Claimed inability to provide security for costs - Whether plaintiff’s impecuniosity caused by defendants – Delay – Period where first defendant was self-represented and did not seek security for costs – Self-represented defendant and security for costs – Threshold requirements conceded – Merits of claim – Existence of counterclaim – Counterclaim to be discontinued – Whether claim is defensive – Discontinuance of counterclaim – Corporations Act 2001 (Cth), s 1335(1) – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 62.02.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Levine	Maciel Pizzorno & Co Lawyers & Consultants
For the First Defendant	G Nip	CAV Law Pty Ltd
For the Second Defendant	No Appearance

HIS HONOUR:

Introduction

The first defendant, Bujar Mustafa (Mr Mustafa), seeks:

(a) security for Mr Mustafa’s costs of the proceeding from the plaintiff in the sum of $95,848 up to and including the first day of trial, pursuant to s 1335 of the Corporations Act 2001 (Cth) (Act) or r 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules);

(b) an order that the proceeding be stayed until security for costs is given by the plaintiff; and

(c) an order that the plaintiff pay the first defendant’s costs of the application.

The plaintiff opposed the application. The second defendant (Ms Loci), who is self-represented, did not take any position on the application or appear at the hearing.

Mr Mustafa relied upon his affidavit filed on 28 April 2022 and two affidavits of his solicitor, Claudio Venegas, filed on 18 February 2022 and 27 April 2022 respectively. He also relied upon a written submission filed on 24 June 2022, which was supplemented orally by his counsel at the hearing. Counsel for Mr Mustafa also tendered (without objection) a document headed ‘Key procedural dates’ (Dates Document) and an ASIC company search extract of the plaintiff obtained on 1 August 2022 (Company Search).

The plaintiff relied upon the affidavit of a director, Mr Nikola (Nik) Mitrov (Mr Mitrov), filed on 22 July 2022, and a written submission filed on 14 July 2022, which was supplemented orally at the hearing by counsel for the plaintiff.

Neither Mr Mustafa nor the plaintiff sought…

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.

Keep reading for free

Create a free CaseChat account to read Mitrov Homes Pty Ltd v Mustafa and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] VSC 501
Decision Date: 30 August 2022

CaseChat Overview and Summary

Mitrov Homes Pty Ltd brought an action against Mustafa and another defendant, seeking damages for breach of contract and other claims. The defendants opposed the claim and applied for security for costs, arguing that Mitrov Homes would be unable to pay the costs of the proceedings if they were unsuccessful. The dispute was heard in the Supreme Court of Victoria. The central legal issues were whether Mitrov Homes was likely to be unable to pay the costs of the proceedings if they were unsuccessful, and whether ordering security for costs would stultify the proceedings or unfairly benefit a person standing behind Mitrov Homes.

The court found that there was no evidence to suggest that Mitrov Homes would be unable to pay the costs if they were unsuccessful. It also noted that the plaintiff’s impecuniosity was not caused by the defendants, and that the defendants had delayed in seeking security for costs. Furthermore, the court found that ordering security for costs would not stultify the proceedings, and that there was no evidence that a person standing behind Mitrov Homes would benefit from the litigation if successful. The court also found that the claim was not defensive and that the counterclaim would be discontinued. The court considered the relevant statutory provisions and rules, including section 1335(1) of the Corporations Act 2001 (Cth) and rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The court concluded that there was no reason to believe that Mitrov Homes would be unable to pay the costs of the proceedings if they were unsuccessful, and that ordering security for costs would stultify the proceedings. The court also found that there was no evidence that a person standing behind Mitrov Homes would benefit from the litigation if successful. Therefore, the application for security for costs was dismissed. The counterclaim was also to be discontinued.

Orders