Mitrov Homes Pty Ltd v Mustafa (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2019 05718

MITROV HOMES PTY LTD (ACN 618 226 247)	Plaintiff
v
BUJAR MUSTAFA	First Defendant
NEZ LOCI	Second Defendant

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JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2023
DATE OF JUDGMENT:	7 July 2023
CASE MAY BE CITED AS:	Mitrov Homes Pty Ltd v Mustafa (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 386

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PRACTICE AND PROCEDURE — Application to set aside judgment given pursuant to a self-executing order — Failure to pay security for costs — Extension of time sought to comply with a self-executing order that has become operative and dismissed the proceeding against a defendant — Self-executing orders made by consent — Discretion to extend time for compliance — Power to set aside or vary an order or judgment — Power to set aside or vary any order for security for costs — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 3.02, 24.05, 24.06, 62.05 — General principles regarding extensions of time and applications pursuant to Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 24.06 — Whether unjust to deny plaintiff a trial — Effect of consent orders — Consent orders general observations — Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110 — R D Werner & Co v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 — Siebe Gorman and Co Ltd v Pneupac Ltd [1982] 1 WLR 185 — Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 — Time to comply with self-executing order extended — Considerations under ss 7, 8 and 9 of the Civil Procedure Act 2010 (Vic) — Application to set aside judgment and extend time to provide for security for costs successful — Undertaking to pay security for costs into court — Conditional relief granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Levine	Maciel Pizzorno & Co Lawyers & Consultants
For the First Defendant	C Fitzgerald	CAV Law Pty Ltd
For the Second Defendant	No Appearance	Self-represented

TABLE OF CONTENTS

Introduction and Summary............................................................................................................. 1

Brief background, the plaintiff’s claim, and Mr Mustafa’s counterclaim.............................. 4

Affidavit material.............................................................................................................................. 7

..... Affidavits filed on behalf of the plaintiff................................................................................... 7

..... Affidavits filed on behalf of Mr Mustafa................................................................................ 11

Submissions...................................................................................................................................... 14

..... Plaintiff’s submissions............................................................................................................... 14

..... Mr Mustafa’s submissions......................................................................................................... 19

Relevant rules, principles and observations.............................................................................. 26

..... Rules 3.02, 24.05 and 24.06........................................................................................................ 26

..... Some relevant case law.............................................................................................................. 27

Consideration and disposition..................................................................................................... 38

Rules 3.02 and 24.06 are engaged and the court’s discretion is enlivened......................... 39
Exercise of the court’s discretion in the circumstances......................................................... 40
Circumstances in which the Security Extension Order and SE Order were made.. 41
Reason why the plaintiff failed to comply with the Security Extension Order and the SE Order was triggered.............................................................................................. 44
Comparative prejudice of the plaintiff and Mr Mustafa............................................. 48
Additional matters............................................................................................................ 52
Exercise of discretion conclusion.................................................................................... 36

Conclusion and proposed orders.................................................................................................. 56

HIS HONOUR:

Introduction and summary

These reasons concern an application by the plaintiff to:

(a) extend the time (now for then) by which the plaintiff was required to provide security for the first defendant’s (Mr Mustafa) costs pursuant to orders made on 21 February 2023:

(i) extending the time by which the plaintiff was to provide $62,000 security for Mr Mustafa’s costs (Security) to 4:00pm on 17 March 2023 (Security Extension Order); and

(ii) ordering that if the Security was not provided by 4:00pm on 17 March 2023 (Security End Date), the plaintiff’s claim against Mr Mustafa is dismissed (SE Order); and

(b) set aside the SE Order or set aside the dismissal of the plaintiff’s claim against Mr Mustafa that resulted from the triggering of the SE Order consequent upon the failure by the plaintiff to provide the Security by the Security End Date.

Mr Mustafa 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 of the application.

The time extension application is made pursuant to r 3.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) and the set aside application is made pursuant to r 24.06 of the Rules.

Following a contested hearing on 2 August 2022 (Security Application), I made an order on 30 August 2022 requiring the plaintiff to provide to the Associate Judge who is the Senior Master of the Court, by 4:00pm on 9 September 2022, $62,000 by way of security for Mr Mustafa’s costs of and incidental to the proceeding up to and including the first day of trial (Security Order).

I also ordered that:

(a) the Security be provided by way of payment into court or by way of a bank guarantee that is in a form acceptable to the Senior Master;

(b) the proceeding against Mr Mustafa is stayed until the plaintiff provides the Security;

(c) Mr Mustafa has liberty to apply in respect of any further security for costs to be sought by him in the future;

(d) the plaintiff is to pay Mr Mustafa’s costs of and incidental to the Security Application, to be taxed on a standard basis if not agreed; and

(e) the proceeding be listed for further directions on 21 October 2022.

My reasons for requiring the plaintiff to provide the Security were published on 30 August 2022 in Mitrov Homes Pty Ltd v Mustafa [2022] VSC 501 (Security Reasons). These reasons should be read together with, and assume a knowledge of, the Security Reasons.

At a directions hearing on 21 October 2022 the plaintiff sought additional time to provide the Security and the proceeding was listed for further directions on 17 February 2023. Shortly prior to the 17 February 2023 hearing the court was provided with proposed consent orders that extended the period for providing security for costs from 9 September 2022 to 17 March 2023, and included a self‑executing order providing for the dismissal of the claim against Mr Mustafa if the Security was not provided by the Security End Date.

On 21 February 2023 the court made the consent orders in the following terms:

THE COURT ORDERS BY CONSENT THAT:
1.The date in paragraph 1 of the orders of Justice Connock made on 30 August 2022 (by which the plaintiff is to provide to the Associate Judge who is the Senior Master of the court $62,000 by way of security for the first defendant’s costs of and incidental to this proceeding up to and including the first day of trial) is extended from 9 September 2022 to 4:00pm on 17 March 2023.
2.In the event that the plaintiff does not comply with order 1 above, the proceeding against the first defendant is dismissed pursuant to r 62.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
3.If the proceeding against the first defendant is dismissed pursuant to r 62.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the plaintiff shall pay the first defendant’s costs of and incidental to the proceeding forthwith, to be taxed on a standard basis if not agreed.
4.The directions hearing listed on 17 February 2023 is adjourned to 10:00am on 24 March 2023 before Justice Connock.
5.Subject to order 3 above, costs are otherwise reserved.
6.There is liberty to apply.

The plaintiff relied upon an affidavit of its solicitor, Sam Angelatos sworn on 21 April 2023, an affidavit of a director of the plaintiff, Nikola Mitrov sworn on 16 May 2023, and an affidavit of Leo Chellicovski sworn on 17 May 2023. The plaintiff also relied upon a written submission filed on 16 May 2023 (Plaintiff’s Outline), which was supplemented by oral submissions made by the plaintiff’s counsel.

Mr Mustafa relied upon affidavits of his solicitor, Claudio Venegas, sworn on 15 February 2023 and 31 May 2023. He also relied upon a written submission filed on 31 May 2023 (Mustafa Outline), which was supplemented by oral submissions made by his counsel.

Since about 20 April 2023 the plaintiff’s solicitor has been holding $62,000 for the Security in his trust account pending the hearing and determination of this application. During the hearing the plaintiff by its counsel undertook to the court to forthwith pay $62,000 into court by way of security for Mr Mustafa’s costs in the event that the time for providing the $62,000 security for costs is extended to a date after the date of the hearing and determination of this application.

Neither the plaintiff nor Mr Mustafa sought to cross-examine any of the deponents.

For the reasons that follow I have determined that, provided $62,000 is paid into court by or on behalf of the plaintiff by 4:00pm on 10 July 2023 as security for the first defendant’s costs, then orders should be made:

(a) setting aside the judgment dismissing the plaintiff’s claim against Mr Mustafa that was consequent upon the plaintiff’s failure to comply with the Security Extension Order and SE Order by the Security End Date; and

(b) extending the time, now for then, by which the plaintiff is required to provide the Security.

I will address with the parties the precise form of the orders and the making of directions and orders for the future conduct of the proceeding.

Brief background, the plaintiff’s claim, and Mr Mustafa’s counterclaim

I previously set out the background to the proceeding in the Security Reasons. It is efficient to re-state that background in almost identical terms.[1]
[1]Noting also that it is largely derived from the material filed in the Security Application.

Mr Mitrov has been a registered builder for over 40 years. He was a friend of Ms Loci’s mother, which played a part in Mr Mustafa and Ms Loci becoming involved with Mr Mitrov’s building business during 2016 and working with him. Mr Mustafa and Ms Loci were then married but are now separated. With the assistance of accountants, the plaintiff was incorporated in March 2017 and the building business was carried out through the plaintiff thereafter. At the time of its incorporation the directors were Mr Mitrov and Mr Mustafa.

There were and remain 200 ordinary shares in the plaintiff and it has paid-up capital of $200. At the time of incorporation Mr Mitrov and Mr Mustafa each held 100 ordinary shares. Mr Mustafa was also the company secretary. In about September 2019 the shareholdings in the plaintiff changed, with Mr Mitrov holding 10 shares, Ms Loci holding 96 shares, and Mr Mustafa holding 94 shares.

Mr Mustafa remained a director until he resigned in the second half of 2019. The company search of the plaintiff records that Mr Mustafa’s director ‘cease date’ was 5 July 2019. Mr Mustafa’s evidence was that he and Ms Loci ceased working with Mr Mitrov and the plaintiff in about September 2019. For a period thereafter, Mr Mitrov was the sole director of the plaintiff until January 2021, when a person recorded as Mehdi Sayed was appointed until he ceased his appointment on 2 June 2021. A person recorded as Sayed Mehdi was appointed on 9 September 2021 and the company search records a director cease date of 5 July 2022, although this sat in tension with an aspect of Mr Mitrov’s evidence. Counsel for the plaintiff confirmed at the Security Application that the court should proceed on the basis that Mehdi Sayed and Sayed Mehdi are one and the same person Sayed Mehdi is also recorded as now owning the 190 shares previously owned by the defendants.

By its claim against Mr Mustafa the plaintiff alleges, among other things, that during the period of 29 March 2017 to 31 December 2019 Mr Mustafa owed to the plaintiff fiduciary and statutory duties as a director under ss 180, 181 and 182 of the Corporations Act2001 (Cth). At the heart of the claims by the plaintiff against Mr Mustafa are allegations that he breached the fiduciary and statutory duties owed to the plaintiff by, among other things, making, facilitating or participating in the making of, unauthorised payments to himself, Ms Loci and others with company funds or credit facilities. The alleged transactions are particularised in Annexures A, B and D to the plaintiff’s statement of claim, which reveals that there are literally hundreds of alleged unauthorised transactions and payments that are said to have been carried out in the relevant period up to December 2019 (Alleged Wrongful Payments). Many of the Alleged Wrongful Payments involve small amounts, including some claims for under $5.00.

Among other things, the plaintiff claims damages, interest and other relief from Mr Mustafa in respect of the Alleged Wrongful Payments. The plaintiff also alleges that, by reason of the Alleged Wrongful Payments, it is entitled to an equitable charge over a property said to be owned by Mr Mustafa (Hughes Street Property), and/or that the Hughes Street Property is subject to a constructive or resulting trust in favour of the plaintiff.

Related allegations are made against Ms Loci, with the hundreds of alleged wrongful payments and transactions in which she was said to be involved (Loci Alleged Wrongful Payments) being detailed in annexures A, C and D to the plaintiff’s statement of claim. The plaintiff also claims against Ms Loci that, by reason of the Loci Alleged Wrongful Payments, the plaintiff is entitled to an equitable charge over property said to be owned by Ms Loci (Loci Property), and/or that it is subject to a constructive or resulting trust in favour of the plaintiff.

Mr Mustafa admits that he owed certain fiduciary and statutory duties to the plaintiff whilst a director of the plaintiff during the period 29 March 2017 to 5 July 2019, but denies that he breached the duties as alleged. His defence pleads little more than bare denials and non-admissions in relation to the breach allegations regarding the Alleged Wrongful Payments. The defence also raises a set-off in relation to the loss and damage claimed by Mr Mustafa in his counterclaim. Mr Mustafa’s affidavit in the Security Application reveals that he alleges that most of the payments relate to business expenses of the plaintiff, with others being payments to Mr Mitrov himself and for wages that Mr Mitrov agreed could be paid. This is disputed by Mr Mitrov.

By his counterclaim, Mr Mustafa alleged that the plaintiff lodged caveats over the Hughes Street Property without reasonable cause that resulted in the loss of a sale of that property, and the consequent suffering of loss and damage. Among other things, by the counterclaim Mr Mustafa sought compensation pursuant to s 118 of the Transfer of Land Act 1958 (Vic) together with costs.

At the Security Application hearing Mr Mustafa sought leave pursuant to r 25.02(3) of the Rules to discontinue the counterclaim. Counsel informed the court that the caveats had been removed and that the Hughes Street Property had been sold to a third party pursuant to an agreement reached between the plaintiff and Mr Mustafa, under which the sale proceeds are currently being held on trust by Mr Mustafa’s solicitors pending the outcome of this proceeding or agreement between the parties. The court was informed that the claim for compensation by Mr Mustafa was no longer being pursued because the sale price achieved on the sale of the Hughes Street Property exceeded the value of the lost opportunity referred to in the counterclaim.

At the Security Application hearing counsel for the plaintiff confirmed the position in relation to the sale of the Hughes Street Property and the existence of an arrangement between the parties, although the details of that arrangement were not addressed in the evidence or disclosed to the court. Although counsel for the plaintiff confirmed that the plaintiff did not wish to make any submissions against the grant of leave to Mr Mustafa to discontinue his counterclaim, he stated that the plaintiff was not consenting to it. In so doing, it was apparent that counsel was aware of the costs position under r 63.15 of the Rules.

On 2 August 2022 orders were made granting leave to Mr Mustafa to discontinue his counterclaim, with the discontinuance to take effect from the day of the hearing on 2 August 2022. Further, on the application of Mr Mustafa, it was ordered that the question of the determination of the costs of his counterclaim be reserved to a date to be fixed, which was a course not opposed by the plaintiff.

The procedural history of the proceeding up to the 2 August 2022 Security Application hearing date was addressed in the Security Reasons, including Annexure A thereto, to which I refer but will not set out. The chronology of what were said to be relevant events since the Security Order was made on 30 August 2022 was addressed in the affidavit material filed on this application and is addressed further below.

Affidavit material

I have read and considered the affidavit material relied upon by the parties.

Affidavits filed on behalf of the plaintiff

As mentioned, the plaintiff relied on an affidavit of its solicitor, Mr Angelatos, sworn 21 April 2023, an affidavit of Mr Mitrov sworn 16 May 2023 and an affidavit of Mr Chellicovski sworn 17 May 2023.

Mr Angelatos’ affidavit exhibited a letter of offer addressed to Mr Mitrov containing a conditional offer from Delcee Holdings Pty Ltd (Delcee) to loan him $65,000, which letter was received by Mr Mitrov on about 10 February 2023. The affidavit also exhibited what was described as written confirmation of unconditional approval of the loan from Delcee dated 17 March 2023. That ‘Loan Settlement Advice Letter’ appeared to be signed by Mr Chellicovski and recorded, among other things:

(a) a loan agreement date of 10 March 2023;

(b) that the date of the advance would not be before 13 March 2023;

(c) that the amount of the advance would be $63,000;

(d) that the facility limit would be $81,250, including capitalised interest;

(e) a fixed interest amount of $16,250 for six months;

(f) an authorised purpose to assist with the legal proceedings associated with the borrower, who was said to be the sole director of the plaintiff; and

(g) an obligation to repay the loan in full by the date which is six months after the interest commencement date.[2]

[2]As defined in the Loan Settlement Advice Letter.

At the end of the Loan Settlement Advice Letter the following appeared:

Dear Nikola,
We apologise for the delay in finalising the matter.
Apart from the delay caused by the valuation advice and other matters related to the due diligence process, we have also encountered an unexpected delay of a maximum of 3 (three) weeks in obtaining the necessary funds from our investors to fund your loan.
We anticipate making the advance on or before 6 April 2023.
Please do not hesitate to contact myself directly on the number provided bellow [sic], should you have any queries.
DATE:
17th of March 2023
Kind regards
Delcee Holding Pty Ltd
[handwritten signature of Mr Chellicovski]
Leo Chellicovski
Director
Mobile [stated in the letter but not necessary to include]

Mr Mitrov’s affidavit sworn on 16 May 2023 addressed a number of matters. It confirmed that the plaintiff consented to the SE Order and said that this was done because Mr Mitrov had secured on or about 10 February 2023 a loan from Delcee for the sum of $63,000 to enable the plaintiff to make the payment into court for security of costs. Mr Mitrov noted that the loan approval was subject to a satisfactory valuation of his home in Research Road, Lara, Victoria, which was to be used as security for repayment of the loan. Mr Mitrov deposed that he was at all times certain that the valuation of his home would be sufficient to meet the lender’s requirements, which it did. He said that he was not able to ascertain at the time, nor predict, that the lender would encounter difficulties resulting in unexpected delays in securing the necessary funds for the lender to complete the loan by advancing the loan funds to him in time.

Mr Mitrov deposed to the fact that between the time of the initial loan approval on 21 February 2023 and unconditional approval on 16 March 2023 he had contacted the lender by telephone to check on the progress of the loan application ‘… and to remind them of the deadline I needed the funds [by] and was reassured by the lender that the funds would be available before 17 March 2023 …’. Mr Mitrov said that on 16 March 2023 he was notified by the lender that the valuation of the property was satisfactory but they had encountered unexpected delays of approximately three weeks that were entirely out of their control in finalising the loan advance to him. Mr Mitrov also exhibited the Loan Settlement Advice Letter, in an unsigned form, dated 16 March 2023.

As to the actual advance of the funds, Mr Mitrov said that the lender actually took even longer than the three weeks that was advised, as he did not receive the loan funds until 16 April 2023. He said that he then directed the lender to transfer the loan funds directly to his solicitor’s trust account, which they did.

Mr Mitrov said that if the plaintiff was unable to continue its legal action against Mr Mustafa it will substantially restrict its ability to recover any judgment awarded in its favour as the second defendant is not likely to satisfy any judgment debt. Mr Mitrov said that the plaintiff will be unable to litigate the cause of action against Mr Mustafa if an extension of time is not granted and it will therefore not be able to make a claim on the funds that are held on trust from the sale of the Hughes Street Property.

Mr Chellicovski is the sole director and secretary of Delcee, the lender of the funds to Mr Mitrov. In his short affidavit Mr Chellicovski deposed to the following:

(a) In early January 2023 Mr Mitrov approached him seeking financial assistance for the plaintiff to fulfil its obligation to pay into court $62,000 by way of the Security.

(b) Mr Chellicovski suggested to Mr Mitrov that he may be able to assist the plaintiff by lending the sum by utilising the equity in one of his properties, or by raising the amount through association with other private investors that might be willing to participate.

(c) Mr Mitrov ‘… agreed to proceed with the said loan on the clear understanding that clear funds had to be provide [sic] on or before 17 March 2023.’

(d) Delcee provided conditional loan approval on 10 February 2023 subject to undertaking due diligence and a current valuation of the security property, being Mr Mitrov’s residential home in Research Road, Lara.

(e) It was at all times understood that the funds were required to be advanced on or before 17 March 2023 in accordance with the Security Extension Order made on 21 February 2023, a copy of which had been provided to Mr Chellicovski.

(f) Throughout the period, being 10 February 2023 to 17 March 2023, Mr Chellicovski ‘… assured Nick [Mitrov] on a number of occasions when Nick [Mitrov] contacted me by telephone that we would be able to meet this date’.

Mr Chellicovski also said that Delcee’s due diligence took more time than anticipated and the loan was eventually unconditionally approved on 16 March 2023, with the loan funds to be advanced on 17 March 2023. However, when the loan funds were requested from ‘our investor’ that had agreed to provide the said funds by that date, Mr Chellicovski was advised that they were unable to provide the said loan funds as had been agreed. Consequently, so it was said, other sources had to be secured to enable the advance of loan funds to the plaintiff, which on 16 March 2023 had been predicted would be available by 8 April 2023 as outlined in the Loan Settlement Advice Letter dated 16 March 2023, a copy of which was exhibited in its unsigned form.

Affidavits filed on behalf of Mr Mustafa

Mr Mustafa relied upon the affidavits of his solicitor, Mr Venegas, sworn 15 February 2023 and 31 May 2023. The 15 February 2023 affidavit had been filed in connection with the directions hearing listed for 17 February 2023. This affidavit set out parts of the chronology from 30 August 2022 when the court had made the Security Order and correspondence between the solicitors for the plaintiff and Mr Mustafa since that time, noting, among other things, that:

(a) On 20 October 2022 Mr Mitrov had filed an affidavit referring to steps taken to obtain finance sufficient to meet the court’s order for Security, to a proposed loan from Oak Capital, and requesting an eight-week adjournment to provide the Security ordered by the court.

(b) The court adjourned the directions hearing on 21 October 2022 to 17 February 2023 to allow the plaintiff more time to obtain finance to meet the Security Order.

(c) Mr Mustafa’s solicitor had not received any update from the plaintiff’s solicitors regarding the finance application and the provision of Security as at 14 February 2023.

(d) The terms of the letter written by Mr Mustafa’s solicitor to the plaintiff’s solicitors of 14 February 2023, informing them that, among other things, nearly four months had elapsed since the last directions hearing; nothing had been heard from the plaintiff; and that Mr Mustafa proposed to seek an order at the upcoming directions hearing for the claim against him to be dismissed in accordance with r 62.04 of the Rules. The letter also requested the plaintiff to inform Mr Mustafa whether the plaintiff intended to oppose these orders being made and, if so, on what basis so the court could be informed of the parties’ position. In addition it made reference to the ‘Net Equity’ of $115,640 from the proceeds of sale of the Hughes Street Property being held in Mr Mustafa’s solicitor’s trust account and sought the plaintiff’s consent to the entirety of that amount being released to Mr Mustafa.

Mr Venegas’ 15 February 2023 affidavit also exhibited the plaintiff’s solicitors’ response of 14 February 2023.[3] That response stated that the plaintiff required an additional 28 days from 14 February 2023 to provide the Security for what were described as ‘the following reasons’:

1. Our client was unable to draw additional funds from the proceeds of the settlement of the original refinance due to unexpected interest rate increases and current market conditions that were beyond his control.
2. The extension of the time that was granted by the court on 21 October 2022 coincided with the Christmas and New Year’s holiday season which impeded our client’s ability to outsource the additional funds required from the several funding sources and acquaintances he had in place.

[3]The affidavit also referred to the plaintiff’s alleged failure to obtain transcripts for various hearings and correspondence regarding the same. It also noted that Mr Mustafa’s legal representation in the proceeding was on a conditional pro bono basis.

The plaintiff’s solicitor’s letter also attached a proposed draft consent order that, relevantly, provided for the directions hearing to be adjourned to a date not before 17 March 2023, reserving costs and liberty to apply.

Mr Venegas’ affidavit of 31 May 2023 referred to the affidavit of 15 February 2023 and also referred to what was described as ‘RELEVANT PROCEDURAL HISTORY’, the detail of which I have read and considered but is not necessary to recite.[4]
[4]Insofar as that history relates to the events leading up to the hearing of the Security Application, I again also refer to the Security Reasons, including Annexure A to those reasons.

In Mr Venegas’ 31 May 2023 affidavit reference was made to: the plaintiff having not provided discovery of documents pursuant to previous orders; Mr Mustafa’s solicitor having received no contact from the plaintiff prior to the time for the provision of the Security expiring on 9 September 2022; Mr Mustafa’s solicitor’s letter of 14 February 2023 earlier referred to; the plaintiff’s solicitors’ email of 14 February 2023 seeking a further 28 days from 17 February 2023 to provide the Security; Mr Mustafa’s solicitor sending a copy of their proposed consent orders in response to the email of 14 February 2023 which provided for an extension to 17 March 2023 but also the inclusion of the SE Order; the correspondence between solicitors at that time; and receipt of the plaintiff’s signed consent order containing the SE Order on 16 February 2023 at 1:27pm.

Mr Venegas also deposed to the fact that he had received no correspondence from the plaintiff or its solicitors between the time the SE Order was made on 21 February 2023 until after the date for compliance with the SE Order had passed on 17 March 2023. In this regard, emphasis was placed on the following:

(a) The court having sent an email to the parties on 20 March 2023 at 12:29pm in advance of the directions hearing scheduled for 24 March 2023, seeking the parties’ proposed orders.

(b) Mr Mustafa’s solicitors having emailed the court at 3:17pm on 20 March 2023, copied to other parties, noting that the SE Order had taken effect after 17 March 2023 and seeking that Mr Mustafa be excused from taking part in the proceeding.

(c) Mr Mustafa’s solicitor receiving an email from the plaintiff’s solicitors at 3:34pm that same day stating as follows:

… We have been instructed that our client has obtained unconditional finance and will be in a position to pay the amount of security for costs on or about 6 April 2023. Our client will be instructing us to make an application for an extension of time for the payment of security for costs pursuant to Rule 62.05 of the Supreme Court (General Civil) Procedure Rules 2015.
There is no prejudice to our [sic] client if a short extension of time is granted to our client to make the payment for security for costs.

(d) Mr Mustafa’s solicitor responding by email later that day informing the plaintiff that Mr Mustafa would oppose the foreshadowed application.

(e) At the directions hearing on 24 March 2023 the court made various orders facilitating the filing and service of any application by the plaintiff to set aside the SE Order and extend the time to comply with the Security Order, with any such application to be filed by 21 April 2023.

Submissions
Plaintiff’s submissions

The plaintiff relied upon its written submissions in the Plaintiff’s Outline, which were supplemented orally by counsel.

The plaintiff submitted that justice required that the time for compliance with the Security Extension Order be extended pursuant to r 3.02 of the Rules; that justice required the judgment against the plaintiff consequent upon the triggering of the SE Order be set aside pursuant to r 24.06 of the Rules, or the setting aside of the SE Order; and that the time for providing the Security should be extended to a date shortly after the determination of this application pursuant to r 3.02 of the Rules.[5]
[5]Reference was also made to the power in r 62.05 to vary or set aside, requiring the payment of security for costs, but counsel confirmed that this was no longer relied on.

With respect to the extension of time it was submitted that the court has the power to extend the time for compliance with a self-executing order that has expired and when the proceeding has been dismissed, and that the court also has the power to relieve a party from the consequences of non-compliance with a self-executing order that was made by consent. In this context it was submitted that to hold otherwise would impermissibly fetter the court’s discretion provided for in rr 3.02 and 24.06 of the Rules.

Reference was made by the plaintiff to a number of the well-known authorities, with particular emphasis being placed on Jorgensen v Slater & Gordon Pty Ltd (Jorgensen).[6] Emphasis was also placed on the observations of the Western Australian Court of Appeal in Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd (Sommerville).[7] In particular, it was submitted that this supported the contention that where there was a reasonable prospect of success on the merits, then the litigation should ideally be determined on the merits and that a non-defaulting party’s loss of a procedural advantage through the loss of a default judgment did not occasion substantial injustice and did not impact its substantive rights.
[6][2008] VSCA 110, [9]–[11].
[7][2023] WASCA 45.

With respect to the operation of r 24.06 of the Rules, it was submitted that the court has the power to set aside a self-executing order, or a judgment consequent upon non‑compliance with such an order, where it would be unjust to deprive the plaintiff of the right to a trial on the merits, even though the self-executing order was properly made. In this context reference was made to the frequently cited observations of Hargrave J in Ridge Lane Pty Ltd v Gadzhis (Ridge Lane).[8]
[8][2007] VSC 212, [39].

Reliance was also placed on what were said to be the observations of Pagone J in Re Saeco Australia Pty Ltd (Re Saeco),[9] and it was further submitted that the principles that apply to an extension of time to comply with a self-executing order should also be applied to an application under r 24.06 of the Rules.
[9][2010] VSC 161, [14], but note that the observations were of Davies J, not Pagone J.

With respect to the application of the principles to the facts at hand, it was submitted that it would be unjust to deprive the plaintiff of a trial on the merits in the circumstances. In the Plaintiff’s Outline it was contended that the following matters demonstrated that it would be unjust not to extend the time for compliance with the Security Extension Order and set aside the judgment dismissing the claim against Mr Mustafa:

(a) The plaintiff has a bona fide cause of action with a reasonable prospect of success.

(b) Such further delay as there has been is not inordinate.

(c) Mr Mustafa would not suffer any substantive prejudice and the only prejudice was the loss of the procedural advantage flowing from the triggering of the SE Order.

(d) The plaintiff had not been inattentive or acted in a contumelious manner towards the court.

(e) The plaintiff took steps to secure a loan to pay the Security and, at the time of agreeing to the Security Order and the SE Order, the loan had been approved in principle subject to a successful valuation. Further, the lender had reassured the plaintiff that the loan was being provided on the basis of the security of his home and the plaintiff was confident that the valuation would be acceptable.

(f) The loan was delayed because of the lender’s own problems that took some time to be resolved, which were caused by events outside the plaintiff’s control and knowledge and could not reasonably have been anticipated by the plaintiff.

(g) The loan was approved unconditionally on 16 March 2023, which was one day before the Security End Date, and the funds were advanced shortly thereafter.

(h) The plaintiff would suffer severe prejudice because it will be unable to litigate the causes of action against Mr Mustafa if an extension of time is not granted and will not be able to make a claim to the funds that are held in trust from the sale of the Hughes Street Property.

(i) The consequences to the plaintiff will be severe if an extension of time is not granted.

(j) If an extension of time is granted and the dismissal is set aside the plaintiff will be able to pay the Security. This is because the Security is currently held in a trust account of the plaintiff’s solicitors, as it has been since about 20 April 2023.

In oral submissions counsel for the plaintiff emphasised his primary contention that it was in the interests of justice to extend the time and to set aside the dismissal, and that it was unjust to deprive the plaintiff of the opportunity to have the issues determined at trial on their merits. In so doing, reference was made in different ways to many of the factors referred to above.

In connection with Mr Mustafa’s contentions regarding agreement and the orders being made by consent, counsel for the plaintiff submitted that:

(a) The orders being made by consent were more akin to a non-objection to the SE Order rather than reflecting some underlying agreement of the kind referred to by Lord Denning in Siebe Gorman and Co Ltd v Pneupac Ltd (Siebe).[10]

(b) In any event, in Australia the primary consideration is what is just in the circumstances whether consent orders reflect an underlying agreement or otherwise, and the nature and content of the consent orders is just one of the matters to be weighed in the balance when looking at the substantive justice considerations.

(c) Each case is dependent on its own facts and other cases are of limited assistance. In any event, the decisions in Mighty River International Ltd v Mineral Resources Ltd (Mighty River),[11] Saltmarsh v Westpac Banking Corporation (Saltmarsh),[12] and Steicke v Pederick (Steicke),[13] referred to by Mr Mustafa, were distinguishable on the facts.

[10][1982] 1 WLR 185.

[11][2020] WASCA 44.

[12][2022] TASFC 8.

[13](2019) 134 SASR 114.

With respect to the claimed dilatory conduct on the part of the plaintiff, it was said that although there had been some initial delay by the plaintiff in preparing a schedule of payments, subsequent delays in the proceeding rested more at the feet of the defendants, and particularly whilst they were unrepresented. In this context reference was also made to Mr Mustafa not having provided a responsive table to the extensive schedule of payments filed by the plaintiff as required by the orders of 16 December 2021. Ultimately this issue was not heavily pressed as the plaintiff was not in a position to indicate what had occurred or point to any evidence on the topic.[14] To the extent there had been delay in discovery by the plaintiff, it was said that this can be addressed by other orders if the dismissal is set aside and the matter proceeds.
[14]Although it may be noted that in the Security Reasons I observed that Mr Mustafa’s defence pleads little more than bare denials. Security Reasons, [13].

It was further contended that the past chronological history is of limited weight in any event, and that the focus of the court ought to be on the events surrounding the making of the Security Extension Order and the SE Order and the plaintiff’s non‑compliance with it — as referred to by the Court of Appeal in Jorgensen.[15]
[15][2008] VSCA 110.

Having regard to the evidence in Mr Mitrov’s affidavit and Mr Chellicovski’s affidavit, it was submitted that the plaintiff acted reasonably and that its conduct was not contumelious and did not involve an intentional breach of the order. It was submitted that the plaintiff was not indifferent and took the necessary steps to obtain funds and did obtain funds only days after the Security End Date. This short delay, so it was said, was due to circumstances beyond the control of the plaintiff. It was further submitted that because the plaintiff reasonably expected to receive the loan funds in time to pay the Security into court before the Security End Date, the plaintiff ought not to be criticised for not having raised the matter with the court prior to 20 March 2023, which was shortly before the directions hearing scheduled for 24 March 2023.

It was also said that the application the subject of these reasons was foreshadowed promptly after the 17 March 2023 Security End Date and emphasis was placed upon the plaintiff’s solicitor’s email of 20 March 2023.

During the course of the submissions an enquiry was made of counsel from the Bench as to whether the funds held in trust by the plaintiff’s solicitor for the Security had now been paid into court by way of security for Mr Mustafa’s costs and, if not, what was proposed. The court was informed that the funds had not been paid into court, with counsel noting that the proceeding against Mr Mustafa currently stood dismissed. Following further exchanges and instructions being obtained, counsel for the plaintiff gave the following undertaking to the court on the plaintiff’s behalf:

The plaintiff by its counsel undertakes to forthwith pay $62,000 into court by way of security for costs in the event that the time for providing $62,000 by way of security for costs is extended to a date after the date of the hearing and determination of this application.[16]

[16]Although not expressly referred to in the undertaking, the reference to security for costs was plainly a reference to security for Mr Mustafa’s costs the subject of the Security Order. See transcript 27 June 2023, 17–18 and 23–25.

Counsel concluded his submissions by again underscoring the plaintiff’s primary contention that justice required the extension of the time for providing the Security and the setting aside of the dismissal of the plaintiff’s claim against Mr Mustafa, and that it would be unjust to deprive the plaintiff of a trial of the issues on their merits — also emphasising that the plaintiff’s claim was bona fide and had reasonable prospects of success.

Mr Mustafa’s submissions

Mr Mustafa relied upon his submissions in the Mustafa Outline, which were ably and succinctly elaborated upon orally by his counsel.[17]
[17]Who the evidence suggested appeared pro bono for Mr Mustafa. As I have previously observed elsewhere, it is difficult to overstate the benefit to the community, in all of its forms, of the pro bono assistance given by members of the legal profession to litigants who would otherwise likely be unrepresented. The court and the administration of justice was indeed assisted by the pro bono involvement of Mr Mustafa’s counsel — and that of his colleague, Mr Terzic, who jointly prepared the Mustafa Outline. If it is the case that Mr Mustafa’s solicitors are also acting on a pro bono basis, these observations apply equally.

The Mustafa Outline sets out submissions under the headings, ‘Overview’, ‘Context’, ‘Relevant Principles’, ‘The Application Should be Dismissed’, and ‘Disposition’. By way of overview it was submitted that the application should be dismissed, and it was confirmed during the hearing that Mr Mustafa relied upon the affidavits of Mr Venegas sworn 15 February 2023 and 31 May 2023. With respect to the context, reference was made to the chronology referred to in the evidence, with particular emphasis on the period from the time of the hearing of the Security Application on 2 August 2022.

In the context of the chronology, and the consent to, and non-compliance with, the Security Extension Order and the SE Order by the plaintiff, the submissions emphasised that the plaintiff had consented to the orders being made in circumstances where it was legally represented; where Mr Mustafa had threatened to apply for dismissal due to the plaintiff’s non‑compliance with the earlier order; where the plaintiff had confirmed that it would pay the Security within 28 days of 14 February 2023; and where at that time the plaintiff had not disclosed to Mr Mustafa the existence of the conditional loan agreement with Delcee. It was also emphasised that the Security End Date came and went without contact from the plaintiff or its solicitors. It was said that there had been no suggestion during the intervening period that the plaintiff would be unable to meet the Security End Date.

Having regard to the chronology of events Mr Mustafa emphasised that:

(a) Unconditional loan approval was only received on 16 March 2023.

(b) Mr Mitrov was aware by 16 March 2023 that funding would not be received by 17 March 2023.

(c) These matters were only recently disclosed — and were not disclosed to the court or Mr Mustafa prior to the passing of the Security End Date.

(d) It was most unsatisfactory that the issue was not disclosed to the court or Mr Mustafa prior to the Security End Date.

(e) It was only after the 20 March 2023 exchange of correspondence that the plaintiff’s solicitors forwarded the ‘Loan Settlement Advice Letter’ from Delcee, noting also that it was sent to Mr Mitrov on 16 March 2023.

(f) It was now over three years since the proceeding was commenced and over seven months from the time Security was initially ordered to be provided.

The Mustafa Outline addressed a number of relevant principles and judicial observations. These were not in dispute between the parties, and relevant principles and observations are referred to later in these reasons.

Mr Mustafa’s headline contention was, in substance, that having regard to the circumstances of this case, the plaintiff had not established that justice required that the dismissal of the plaintiff’s claim against Mr Mustafa be set aside, or that justice required that the time for providing the Security be extended. Briefly, the primary matters relied upon in this context were as follows:

(a) The history of the proceeding, as referred to in part B of the Mustafa Outline.

(b) A ‘critical if not dispositive’ feature of the case being that the orders were made by consent by the plaintiff who was at all times legally represented. In this context it was said that the parties negotiated and agreed the orders through the sequence of correspondence and events earlier referred to.

(c) The circumstances in question were said to be distinguishable from the case in FAI General Insurance Co Ltd v Southern Cross Exploration NL (FAI),[18] where the self‑executing order concerning the provision of security was not made by consent. It was submitted that the circumstances were more closely aligned to the facts in the decisions in Saltmarsh,[19] Steicke[20] and Mighty River,[21] where the parties had agreed to self-executing orders by consent.
[18](1988) 165 CLR 269.
[19][2022] TASFC 8.
[20](2019) 134 SASR 114.
[21][2020] WASCA 44.

(d) The consent orders made, so it was said, reflected the agreement that the plaintiff would provide the Security by a particular date and that if it failed to do so then the proceeding against Mr Mustafa would be dismissed. That is to say, Mr Mustafa agreed to forego his entitlement to the Security for a defined period on the condition that a failure to provide the Security within that period would result in the dismissal of the proceeding against him. It was contended that as part of that agreement the plaintiff got the benefit of another extension of time within which to provide the Security ‘… on pain of the dismissal of its proceeding against Mr Mustafa’.

(e) This was said not to be a case where agreement was reached in discussions at the door of the court in the manner referred to in RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (RD Werner)[22] and there was not any suggestion that the plaintiff’s consent was procured by vitiating circumstances or that the plaintiff’s solicitors lacked the authority to sign the consent order. It was said in this context that there was no valid reason to go behind the consent.

(f) It was open to the plaintiff to come back to the court if it was having difficulty in meeting the Security End Date and apply for an extension. It did not do so, which, so it was contended, was said to weigh heavily against the plaintiff.

[22](1988) 18 FCR 389, 391.

With respect to the reasons for non-compliance, it was submitted that there was only limited evidence regarding the steps taken by the plaintiff to obtain finance, particularly in the period between September 2022 and February 2023. After referring to the relevant affidavit evidence it was submitted that the reason for non-compliance given by the plaintiff was inadequate and it was again emphasised that the position was only disclosed and addressed by the plaintiff after the Security End Date had passed. It was contended that it generally reflected how the plaintiff had engaged with Mr Mustafa and the court in other stages of the proceeding, and particularly since August 2021. It was submitted that this reflected the plaintiff’s indifference to the Security Extension Order and the SE Order, and that this also ought to weigh heavily against the plaintiff’s application.

As to the comparative prejudice that would be suffered if the plaintiff’s application was unsuccessful, Mr Mustafa appropriately recognised the seriousness of that consequence for the plaintiff but submitted that this did not of itself excuse the non‑compliance with the Security Extension Order by the Security End Date.[23] It was further submitted that the seriousness of the dismissal has to be viewed in the light of the fact that the proceeding had been effectively at a standstill for months prior to the Security Order being made.
[23]Referring in this context to Brakatselos v ABL Nominees Pty Ltd (2012) 36 VR 490, 503 [43] (Redlich JA, with whom Nettle JA and Davies AJA agreed).

As to Mr Mustafa’s claimed prejudice, it was stated that the prejudice faced by a party such as Mr Mustafa may be cured, at least to an extent, by an order for costs, but such a cure needed to be considered in context. It was noted that the court had previously observed in the Security Reasons that little of substance had occurred in the proceeding since the application for security for costs was foreshadowed in August 2021. It was contended that there were two reasons why costs may not cure the prejudice faced by Mr Mustafa.

First, it was said that the plaintiff had previously been found to lack sufficient assets to meet an adverse costs order. Except for the funds held in trust by the plaintiff’s solicitor for the purpose of the Security, it was submitted that there was no evidence to suggest that the plaintiff would be able to meet an additional costs order for costs attended by events that have taken place since September 2022, or that the plaintiff would comply with any order for further security should Mr Mustafa make such an application.

Second, it was said that Mr Mustafa faces ongoing risks occasioned by delays in the conduct of the proceeding, claiming that the plaintiff’s claim is largely unparticularised and its discovery remains incomplete. It was also contended that key aspects of the claim would need to be determined following consideration of oral evidence, and that the longer the matter proceeded without determination the greater the likelihood that the memory of key witnesses, including the defendants, would be adversely affected by the passage of time.

As to the merits of the underlying claim, it was not contended that the claim was not brought bona fide. Reference was also made to the court having stated in the Security Reasons that it was appropriate for the purposes of the Security Application to proceed on the basis that the plaintiff’s claim was bona fide and had a reasonable prospect of success.

Mr Mustafa also made reference to the court’s obligation to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) (CP Act) when exercising its powers, and the parties’ obligations to co-operate and to act promptly and minimise delays. It was submitted that a failure to comply with those overarching obligations may be taken into account by the court when exercising any of its powers, and that the plaintiff had approached the litigation in a dilatory and reactive fashion.

With respect to paragraph 9 of Mr Mitrov’s affidavit, in which it was stated by Mr Mitrov that if the proceeding was pressed against Ms Loci only then it was likely that she would not be able to satisfy a judgment, it was submitted that there was no evidence to support that position because there was no evidence regarding Ms Loci’s financial position.

As to the plaintiff’s contention that Mr Mustafa would have responded negatively had the plaintiff made a request for a further extension prior to the Security End Date, it was submitted that such an inference was not open and that there was nothing in the evidence to support that position.

Following an enquiry from the Bench as to whether Mr Mustafa contended that the court could and should infer (or be otherwise satisfied) that the failure to comply with the Security Extension Order and the SE Order was intentional or contumelious conduct by the plaintiff, counsel for Mr Mustafa clarified that Mr Mustafa did not make that submission and that, to the extent that this appeared in the Mustafa Outline, it was not relied upon. This was a responsible position for counsel to take on the evidence.

That said, Mr Mustafa maintained his submission that the conduct of the plaintiff reflected an indifference towards the Security Extension Order and the SE Order, and compliance with them prior to the Security End Date. In support of the contention that the court could infer such indifference, Mr Mustafa relied upon the fact that the plaintiff was legally represented; that he was aware of the effect of the SE Order when it was consented to; that the orders were made by consent in the context of the events earlier referred to; and that there was nothing that prevented the plaintiff approaching the defendants’ solicitors or the court prior to the Security End Date.

At one point during submissions Mr Mustafa raised the possibility of an inference being drawn that, given the limited information in the evidence regarding that which had occurred between October 2022 and early January 2023, the plaintiff had (or may have had) access to other funds from which the Security could have been paid earlier. Ultimately this contention was not pressed, which was also a responsible position for counsel to take given the absence of evidence from which such an inference could be drawn — and noting also that there was no cross-examination.

In the context of intention, counsel for Mr Mustafa emphasised that the onus was on the plaintiff clearly to show the reasons for non-compliance and that the conduct was not intentional or contumelious. It was submitted that the evidence on these matters was less than satisfactory.

With respect to the sequence of events, emphasis was placed on the correspondence passing between the solicitors leading to the Security Extension Order and SE Order being made by consent. It was submitted that this evidence supported the contention that the consent order reflected an agreement, although counsel appropriately volunteered that he was not contending that any agreement was akin to some form of settlement agreement.

When concluding his submissions counsel for Mr Mustafa drew attention to observations in the authorities regarding self-executing orders not being set aside lightly.

I add for completeness that counsel for Mr Mustafa also confirmed that the amount held in his solicitor’s trust account from the sale of the Hughes Street Property pending determination of this proceeding or further order is approximately $115,000, which was also referred to in the evidence.

Relevant rules, principles and observations
Rules 3.02, 24.05 and 24.06

Rule 3.02 of the Rules provides as follows:

3.02 Extension and abridgement
(1) The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time.
(2) The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires.
…

Rule 24.05 of the Rules is in the following terms:

24.05 Inherent jurisdiction
Nothing in this Order affects the inherent power of the Court—
(a) to dismiss any proceeding for want of prosecution; or
(b) to order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly.

Rule 24.06 of the Rules provides:

24.06 Setting aside judgment
The Court may set aside or vary—
(a) an order under this Order or an order referred to in Rule 24.05;
(b) a judgment entered or given upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step.[24]
[24]Rule 62.05 of the Rules states ‘The Court may set aside or vary any order requiring a plaintiff to give security for costs.’ However, as earlier mentioned, counsel for the plaintiff confirmed that the application was no longer being pressed under this rule.

Some relevant case law

On the topic of consent orders and the existence or otherwise of an agreement, in Siebe[25] Lord Denning said this:

We have had a discussion about “consent orders.” It should be clearly understood by the profession that, when an order is expressed to be made “by consent,” it is ambiguous. There are two meanings to the words “by consent”. That was observed by Lord Greene M.R. in Chandless-Chandless v. Nicholson. [1942] 2 K.B. 321, 324. One meaning is this: the words “by consent” may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words “by consent” may mean “the parties hereto not objecting.” In such a case there is no real contract. Between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without objection?
…
… It seems to me that all those cases can be – and should be – explained on the basis that there was a real contract between the ·parties evidenced by the order which was drawn up.
I cannot put any such interpretation on the order which was drawn up in this case. It often happens in the Bear Garden that one solicitor or legal executive says to the other, “Give me 10 days.” The other agrees. They go in before the master. They say, “We have agreed the order.” The master initials it. It is said to be “by consent.” But there is no real contract. All that happens is that the master makes an order without any objection being made to it.’ It seems to me that that is exactly what happened here. The solicitors for the plaintiffs were saying, “We do not object to the order. Give us the extra 10 days from the time of inspection, and that is good enough.” It seems to me quite impossible in this case to infer any contract from the fact that the order was drawn up as “by consent.”

[25][1982] 1 WLR 185, 189–190.

Consent orders, binding agreements and self-executing orders were addressed in part in RD Werner,[26] in connection with non-compliance with a self-executing order for security for costs made by consent. Although lengthy, the observations of Woodward and Foster JJ merit extraction given the application before me:[27]
[26](1988) 18 FCR 389.
[27]Ibid 391–393, 399.

It is not possible to set out all the indicia of a binding contract having been entered into in a particular case. The subject matter and the circumstances will both be important. In the present case there was a history of negotiation about the claim for security for costs which extended over several weeks. A number of letters were exchanged, and there was a good deal of discussion as to the appropriate sum in which security might be ordered, before the parties reached agreement as to the order which ought to be made. On the other hand there was nothing to indicate how the self-executing provision came to be introduced into the consent order. There is certainly nothing to show that this was insisted upon by the respondent and conceded by the appellant. It may be that, having been proposed by the respondent’s advisers, it was not closely considered by the appellant’s advisers because they had so much time to comply with the order. However, it is clear that it was agreed to before the consent order was made.
…
It is, we think, significant that the agreement in this case was entered into two days before Ryan J was asked to make the consent order. This was not a case where agreement was reached in discussions at the door of the court: cf Siebe Gorman, supra. Other factors which we think are significant are that a money sum for the security had to be negotiated, along with a method of providing security, that such negotiations occurred in writing and were spread over a period of time, and that a particular order for costs was also negotiated.
In these circumstances Northrop J found that there was an unconditional contract entered into between the parties on 22 July that a consent order be made. The order was duly made by consent, although it did not say so on its face. We note in passing that there is, of course, no suggestion that the court must make a particular consent order in an interlocutory matter simply because the parties have agreed to it. However, there appeared to be no reason in this particular case why Ryan J should not have made the order which was requested of him.
The appellant’s counsel argued that the agreement in the present case was
‘… no more than an arrangement of a type commonly made for the disposition of a procedural application upon certain terms. Essentially, the agreement was that the parties’ representatives would not oppose orders in the terms discussed.’

In our view, bearing in mind the significant factors we have identified, this argument cannot succeed. The consent order did give effect to a contract between the parties.
However, this is not the end of the matter. The court has an overriding power to control its own proceedings. The existence of that inherent power of courts has long been recognised and acted upon. The power to fix and extend times within which interlocutory steps are to be taken is a most common manifestation of the general power. It is now made explicit in rules of court to be found in all relevant jurisdictions. The power is discretionary and is exercised with due regard to all relevant circumstances. If it be legally open to the parties to oust this jurisdiction by agreement, then such ouster could be effected only by clear and express terms in the agreement and court order.
This view receives support from the judgments of the Court of Appeal in Siebe Gorman, supra. Lord Denning MR said (at 381):
‘As Eveleigh LJ said early on in this appeal, when people do not object to an order of this kind it is always on the terms that it is subject to the rules of court which enable an extension of time to be made.’

At the same page, Eveleigh LJ said:
‘If the court’s power under O 3, r 5 can be excluded by the agreement of the parties and if the intention was to exclude this jurisdiction, then to my mind it must be made abundantly clear. I am not satisfied on the facts of this case that the parties did agree to exclude the discretion of the court to extend time.’

Templeman LJ said (at 384):
‘… nor do I accept the submission that, if there was a contract, Purcell’s case compels the court in the instant case to find that one of the terms of the contract was that the jurisdiction of the court to extend time was ousted.’

His Lordship was, with respect, clearly right in this. In Purcell v F C Trigell Ltd [1971] 1 QB 358, Lord Denning MR said:
‘… there is no ground here so far as I can see for setting aside this consent order. It was deliberately made, with full knowledge, with the full agreement of the solicitors on both sides. It cannot be set aside. But, even though the order cannot be set aside there is still a question whether it should be enforced. The court has always a control over interlocutory orders. It may, in its discretion, vary or alter them even though made originally by consent.’

…
While the distinction between mere consent orders and orders giving effect to a contract is not always explicit in the passages cited, we think it is clear that the Court of Appeal has at least taken the view that interlocutory orders can be varied by the court, even where they have been made as the result of a binding contract between the parties, and, also, that any ouster of the court’s jurisdiction to make such a variation cannot be effected except by clear words.
It may be that the court’s control can never be ousted; see the recent decision of the New South Wales Court of Appeal in Morgan v 45 Flers Avenue Pty Ltd (9 November 1987, unreported) and the remarks of Sheppard J in E I du Pont de Nemours & Co v Commissioner of Patents (Federal Court, 9 February 1987, unreported) but it is not necessary to decide that ultimate question in this case.
…
In the light of these judgments, we think it may be said that the court may have power in all cases to extend the time for complying with a self-executing order even after the time originally limited by the order has expired, and that it certainly has such power in cases where the rules provide a relevant power to amend orders after they have been entered.[28]

[28]Later in RD Werner (1988) 18 FCR 389, 401, Jenkinson J stated:

Since an order extending the time limited by the order of Ryan J would not in my opinion have involved acceding to an application made in breach of contract, there is no occasion to consider whether the court can, or whether it should, in any circumstances accede to an application the making of which does constitute a breach of a contract between the applicant and another party to the proceeding: see E I du Pont de Nemours & Co v Commissioner of Patents (Full Federal Court; No G590 of 1986; 9 February 1987, unreported).

I agree that the circumstances justify an extension of the time. Accordingly I agree with the orders Woodward and Foster JJ have proposed.

In Ridge Lane,[29] Hargrave J discussed at some length the principles applicable to r 24.06 of the Rules in a different context. Given that which was later addressed by the Court of Appeal in Jorgensen,[30] it is not necessary to set out the relevant part of Hargrave J’s reasons, although as a reminder, the following general caution is worth noting:

[27] The terms of a self-executing order must be clear and unambiguous. The party against whom the order is made should know precisely what must be done in order to comply and avoid the automatic operation of the order. The terms of a self-executing order should not invite debate about whether or not the party required to comply, in order to avoid automatic operation of the order, has in fact complied.[31]

[29][2007] VSC 212, [27]–[38].

[30][2008] VSCA 110.

[31]Williams Civil Procedure Victoria, [I 24.02.35]; Reiss v Woolf [1952] 2 QB 557, 559; Broers v Foster (1981) 36 ALR 605, 612-14; Freeman v Rabinov [1981] VR 539, 545; Household Finance Services Ltd v Braybrook [1991] 2 VR 577, 584.

After extended references to the then relevant authorities, Hargrave J ultimately summarised the position as follows:[32]

[39] In summary, the cases establish the following propositions. First, the terms of a self-executing order should state with precision the act to be done in order to comply with the order. Second, where the act specified in the self-executing order involves the provision of information within a specified time, a document filed within that time and which constitutes a good faith attempt to provide that information will comply with the order. Third, where the self-executing order has been complied with but the information supplied is in fact deficient in some way, the Court retains the power to make further orders for the supply of the information. Fourth, where a self-executing order has not been complied with, the Court will vary or set aside the self-executing order where, in all the circumstances, it would be unjust to deprive the party adversely affected of the right to a trial on the merits of the proceeding.

[32]Ridge Lane [2007] VSC 212, [39]. There has been some controversy regarding the second point in the summary regarding a good faith attempt being sufficient, although it is not necessary to address this aspect on the application before me.

Jorgensen[33] is frequently cited as one of the leading authorities dealing with relieving a party from the consequences of a self-executing order and extending time for compliance. In that case, Maxwell ACJ and Forrest AJA said as follows:
[33][2008] VSCA 110.

What does justice require?
[9] The court has a wide discretion to relieve a party of the consequences of non-compliance with a self-executing order. The governing consideration, as in every aspect of practice and procedure, is what justice requires.[34] As Burt CJ said in Link Blocks Pty Ltd v Fullin,[35] all the circumstances must be weighed in the balance and
[34]See, eg, Southern Motors Pty Ltd v Australian Guarantee Corporation Limited [1980] VR 187, 193; Freeman v Rabinov [1981] VR 539, 549; Pereira v Beanlands [1996] 3 All ER 528, 536.
[35][1986] WAR 187, 190.
one must not … lose sight of the fact that the justice spoken of is an even-handed justice to [both sides].

[10] The power to relieve must be exercised with care. As Roskill LJ said in Samuels v Linzi Dresses Limited,[36] it is a power
[36][1981] 1 QB 115, 126.
which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored.

We respectfully agree with what was said by Newnes J in the Western Australia Supreme Court in MTQ Holdings Pty Ltd v Lynch, as follows:
The authority of the court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a [self-executing] order can be avoided by showing that non-compliance with [that] order came about by the same sort of inattention or laxity that caused the order to be made in the first place.[37]
[37]2007] WASC 49 (‘MTQ Holdings’), [51]; see also Van Blitterswyk v Sons of Gwalia Limited [No 2] [2008] WASC 22.

[11] We would also adopt what Newnes J said regarding the considerations which should ordinarily be brought to bear in considering the exercise of this discretion. The court should have regard at least to the following matters:
(a) the circumstances in which the self-executing order was made;
(b) the reasons for non-compliance with it;
(c) the prejudice to the defaulting party if relief were not granted; and
(d) the prejudice to the innocent party if relief were granted.[38]

[12] As to the reasons for non-compliance, it is of the first importance to ascertain whether the failure to comply was wilful, that is, was reflective of deliberate disregard of, or indifference to, the court’s order.[39] As Browne-Wilkinson VC said in Re Jokai Tea Holdings Limited:
The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.[40]

[38]MTQ Holdings [2007] WASC 49, [55].

[39]See Re Jokai Tea Holdings Limited [1993] 1 All ER 630, 637 (Browne-Wilkinson VC), 641 (Megaw LJ).

[40][1993] 1 All ER 630, 637.

Ultimately the court concluded in Jorgensen[41] that the appellant, Mr Jorgensen, should be relieved of the adverse consequence of the self-executing order. In this context the following observations were made regarding the nature of the prejudice and what justice requires:[42]
[41][2008] VSCA 110.
[42]Ibid.

[29] As matters stand, Mr Jorgensen’s appeal is at an end. As the case law in this area has consistently acknowledged, the loss of a right of action or appeal is a very severe penalty indeed. On the other hand, SG has already been caught up in this appeal for more than two years, with little progress having been made, and should not, it is now submitted, be exposed to the prospect of further delays before the appeal can finally be heard and determined.
[30] Ultimately, however, we have concluded that the interests of justice require that Mr Jorgensen be relieved of the consequence of the self-executing order. Critically, in our view, the conduct of Mr Jorgensen in the seven day period fixed by the court for compliance did not reflect either deliberate disregard of or indifference to the court’s order. On the contrary, as we noted earlier, Mr Jorgensen took active steps to secure fresh legal representation for the purposes of having the draft appeal index completed, as he had told the court on 31 March he would do. He cannot, in our view, be criticised for having directed some of his time and energy towards immediately pressing court commitments in which (as the representative of his companies) he was unavoidably involved.
[31] Contrary to his expectation, Mr Jorgensen was unable to retain alternative lawyers to carry out the task of revising the appeal book index and was obliged to carry out the task himself. It is also significant, in our view, that he remained in regular contact with SG, at all times acknowledging what was required of him by the order and promising that it would be done as soon as practicable. This is not, in our view, a case of the kind referred to by Newnes J in MTQ Holdings, where
non-compliance … came about by the same sort of inattention or laxity that caused the order to be made in the first place.[43]

[32] A self-executing order is, quite intentionally, penal in character. The order has several purposes – to signify the court’s disapproval of prior non-compliance; to emphasise the importance of obedience to court orders; and to secure the performance of the particular procedural step(s) the subject of the order. The imposition of a self-executing order in the present case has, in our view, secured all of these purposes. It sent the clearest message to Mr Jorgensen, and to others who will doubtless follow him, that disobedience to procedural orders will not be tolerated. It also secured, albeit two weeks late, the filing of a revised court book index.
[33] On an application such as this, for relief from the operation of a self-executing order, we think it proper to ask (as Parker LJ put it in Re Jokhai Tea Holdings Ltd) whether ‘the punishment fits the crime’.[44] Given the view we take of the circumstances of the non-compliance, we have concluded that the loss of Mr Jorgensen’s right of appeal would be a disproportionate punishment.

[43][2007] WASC 49, [51].

[44][1993] 1 All ER 630, 641.

In Re Saeco,[45] Davies J addressed the applicable principles in Jorgensen in the context of a court dismissing a proceeding for non-compliance with an order as opposed to the triggering of a self-executing order:

[14] The applicable principles governing the exercise of power were considered by the Court of Appeal in Jorgensen v Slater and Gordon Pty Ltd.[46] Although the Court was there concerned with the discretion under r 24.06 exercised with respect to a party who was in default under a self executing order, the principles are not relevantly different to the circumstance where a proceeding is dismissed by reason of non-compliance. …
[15] Thus, the consideration of “what justice requires” involves a broader inquiry than the exercise of power to dismiss a proceeding for non-compliance, where the condition for the exercise of power is the non-compliance itself. Obedience to the orders of the Court is the basis of r 24.02.[47] The interests of justice between the parties is the basis of the exercise of discretion under r 24.06.

[45][2010] VSC 161.

[46][2008] VSCA 110 (Unreported, Maxwell ACJ, Forrest AJA, 18 June 2008).

[47]Re Jokai Tea Holdings Ltd (1993) 1 All ER 630 referred to with approval in Jorgensen v Slater and Gordon Pty Ltd [2008] VSCA 110 (Unreported, Maxwell ACJ, Forrest AJA, 18 June 2008) [12].

In Brakatselos v ABL Nominees Pty Ltd and Others,[48] the Court of Appeal underscored the importance of addressing the question of what justice requires in the circumstances, referring also to the court’s wide discretion and the significance of injustice. Emphasis was also given to the importance of the explanation for non‑compliance and the need for the non-complying party to show that the non‑compliance was not in wilful disregard of the orders:

[40] Where a party is precluded from pursuing its claim or defence by reason of a self-executing order, the court has always had a wide discretion to set aside or vary the self-executing order if injustice flowed from its operation even though no fault was to be found in the making of the order at the time it was made.[49] In Jorgensen v Slater & Gordon Pty Ltd,[50] this court set out the principles governing the discretion to relieve a party of the consequences of non-compliance with self-executing orders:[51] …
[43] Plainly enough the applicants risked a great prejudice if these proceedings were undefended. While the seriousness of the consequences flowing from non-compliance with a court order may in some circumstances affect how severely the court should treat that non-compliance, it will not of itself excuse such disobedience. The nature of the non-compliance may be of such a serious order that its consequences cannot be mitigated. That outcome is even more likely where no satisfactory explanation is provided for the non-compliance. Failure to comply with a self-executing order which will result in the proceedings becoming undefended and where no adequate explanation for the failure to comply is provided falls into this category. So to say is to recognise that a litigant who disregards the dire natural consequences of disobedience to a court order does so at their peril.
[44] For the reasons I have already given, the applicants have not shown that their failure to comply within the known time limits was not wilful or reflective of deliberate disregard. On the state of the material before his Honour, it was open to infer that the applicants and their solicitor ignored the time limits of the order. Whether there was a lack of funds at that time or some other extraneous circumstances which contributed to their non-compliance with the order, and which has been insufficiently disclosed, the inference is unavoidable that the applicants and their solicitor knowingly failed to comply with the order.

Whilst the sequence of correspondence clearly shows that the Security Extension Order and the SE Order were made by consent following an exchange of correspondence between solicitors between 14 and 16 February 2023 (being the day before the scheduled directions hearing), this is only one (or part) of the circumstances properly to be taken into account when considering whether the plaintiff has established that justice requires that the relief sought by the plaintiff ought to be granted. So much was properly acknowledged by counsel for Mr Mustafa.

I make the following further observations regarding the consent order/agreement submissions made by the parties in this context.

First, I accept that agreement was reached between the parties regarding the making of the orders by consent on the papers in advance of the directions hearing, including the SE Order.

Second, counsel for Mr Mustafa was quite right to volunteer that the nature of the agreement was not alleged to be akin to a settlement agreement or something of that nature.

Third, a review of the correspondence, including the fact that it was initiated by correspondence from the court encouraging the parties to seek to agree consent orders on the papers in advance of the directions hearing, reveals in my view that the agreement was more akin to the second kind of agreement addressed by Denning LJ in Siebe[81] rather than the first type referred to in paragraph 84 above. This is further supported by the absence of other material terms — and noting, for example, that the provision of the Security had already been ordered after a contested hearing and in circumstances where the court had determined the amount, including disallowing amounts claimed by Mr Mustafa for anticipated senior counsel’s fees.
[81][1982] 1 WLR 185.

Fourth, given that: the correspondence process had been started by communications from the court encouraging the parties to narrow issues and provide consent or not opposed orders in advance of the directions hearing on 17 February 2023, that this occurred relatively swiftly, and that it occurred subsequent to the plaintiff proposing an order that simply adjourned the directions hearing to a date after 17 March 2023, in my view the run of correspondence is more in line with an agreement being reached at the ‘door of the court’ as opposed to that which was contended for by Mr Mustafa.

Fifth, and in any event, the agreement regarding consent orders was reached in an objective context where the parties were represented and the court’s powers to extend times and relieve parties from the effects of non-compliance with self-executing orders had existed, and been known to exist, as part of the relevant legal framework for a very long time.[82]
[82]In this context see also the observations of Eveleigh LJ in Siebe [1982] 1 WLR 185, as also addressed in RD Werner (1988) 18 FCR 389.

Further, there was no evidence to suggest, or submission made, that the parties sought to exclude by agreement the court’s power to extend the time for compliance with the Security Extension Order or grant relief in relation to any non-compliance with it.[83] There was also no evidence to suggest, and it was not submitted, that the plaintiff had somehow agreed or otherwise bound itself not to make an application to the court of the kind now under consideration if it could not provide the Security by the Security End Date.
[83]Even assuming for the moment that such an agreement would be effective, which in my view it would not be, although it is not necessary to address this further given the facts of this case.

The end point on this topic is as follows:

(a) Although agreement was reached between solicitors regarding the consent orders, it was more akin to the plaintiff not objecting to the SE Order that was being pressed for by Mr Mustafa in the diminishing time window leading up to the directions hearing, rather than an agreement of the more formal and substantive kind submitted by Mr Mustafa.

(b) In any event, and however the agreement is to be characterised,[84] the agreement did not seek to exclude the exercise of the court’s discretion to extend time or grant relief from the consequences of non-compliance with the SE Order, or involve any agreement on the part of the plaintiff not to seek to apply to the court for such relief.

(c) The agreement regarding consent orders is one (or part) of the relevant factors to take into account, but the existence of such an agreement, whatever be its correct characterisation, does not preclude the court from exercising its discretion in favour of the plaintiff if it is established that this is what justice requires in all of the circumstances.

Reason why the plaintiff failed to comply with the Security Extension Order and the SE Order was triggered

[84]And even if I am wrong and Mr Mustafa’s characterisation is more accurate.

Although I accept Mr Mustafa’s submission that there was scope for some more detail to be provided in the evidence regarding aspects of the events leading to the plaintiff’s failure to provide the Security by the Security End Date, and particularly in relation to the October 2022 to early-January 2023 period, taking into account all of the evidence I am satisfied that the explanation of the reason for the non-compliance is sound and sufficient for present purposes.

In large part this is because direct evidence is given by Mr Mitrov and Mr Chellicovski regarding the circumstances that resulted in non-compliance with the Security Extension Order. In my view this demonstrates that the plaintiff’s non-compliance: was not wilful or contumelious; did not reflect an indifference to the terms of the Security Extension Order or the SE Order; involved circumstances beyond the control of the plaintiff in connection with securing the loan advance to be used to provide the Security; did not involve unreasonable delay by the plaintiff; and resulted in the plaintiff being in a position to provide the Security a relatively short time after the Security End Date.

The evidence relied upon by the plaintiff demonstrates that the plaintiff’s breach was not wilful or contumelious. As at 16 February 2023 when consent was given to the Security Extension Order and the SE Order in advance of the directions hearing, the plaintiff had a reasonable basis for expecting to be in a position to provide the Security by the Security End Date. I refer in this regard to the conditional loan approval and Mr Mitrov’s evidence regarding the same — as well as the evidence of Mr Chellicovski regarding the loan.[85]
[85]See paragraphs 30 to 37 above.

Further, it is apparent that Mr Mitrov was chasing up the loan for the security as time progressed to ensure that the funds would be available by 17 March 2023 and was assured that the loan funds would be forthcoming in time. So much was also confirmed by Mr Chellicovski in his evidence. It was only on 16 March 2023 that it became apparent to Mr Mitrov that the funds could not be advanced before the end of the next day, which was the Security End Date.

The evidence of Mr Mitrov and Mr Chellicovski regarding the loan, which was unchallenged, makes good the plaintiff’s contention that these events were unexpected by Mr Mitrov, beyond the plaintiff’s control, and the central reason why the Security Extension Order was not complied with by the Security End Date and the SE Order was triggered.

Having regard to the above, it is in my view evident that the plaintiff’s breach was not wilful or contumelious. In any event, nothing more need be said on this topic because counsel for Mr Mustafa conceded as much during the hearing, which was a proper concession for counsel to make.

Having regard to the evidence of Mr Mitrov, Mr Chellicovski and Mr Angelatos that I have referred to, including the loan documents exhibited, I do not accept Mr Mustafa’s submission that the evidence and history demonstrates an indifference on the part of the plaintiff to compliance with the Security Extension Order or to the terms of the SE Order. Mr Mitrov’s evidence shows that the plaintiff wanted to provide the Security by the Security End Date, was seeking to do so, and was prevented from doing so for a short period by reason of unexpected last-minute delays with the loan which were not of its making, to its knowledge, or subject to its control.

As was submitted by Mr Mustafa, I accept that it is relevant and appropriate to take into account that the plaintiff was represented, that it consented to the Security Extension Order and the SE Order, that it did not seek an extension prior to the Security End Date, and that it was aware of the terms of the said orders. However, when viewed as part of the overall circumstances, including in the context of Mr Mitrov’s and Mr Chellicovski’s evidence, none of these circumstances, whether considered alone or in any combination, or in combination with any other circumstances, establishes or allows for an inference that the plaintiff was indifferent to the Security Extension Order or the SE Order.

I add that this remains the position even if it is assumed for the purpose of analysis that the plaintiff had been dilatory in connection with other aspects of the proceeding in the past in the manner alleged by Mr Mustafa. Whilst such (assumed) conduct would not reflect well on the plaintiff or those acting for it, given the direct evidence before the court regarding the efforts of the plaintiff to comply with the Security Extension Order prior to the Security End Date, such (assumed) dilatory conduct provides little, if any, support for the contention that the plaintiff was indifferent to the Security Extension Order or the SE Order.

In the particular circumstances of this case, I do not consider that the plaintiff’s failure to contact Mr Mustafa or the court to seek an extension prior to the Security End Date weighs particularly heavily against the grant of relief to the plaintiff. It may also be inferred that this was a judgment call of its lawyers, although the result would not change if that was not so. That said, I accept that it was desirable for the plaintiff’s solicitors to have better communicated with the solicitors for Mr Mustafa as the Security End Date approached, and to inform them of the position, even if compliance with the Security Extension Order was anticipated. It is to be remembered in this context that there had also been no relevant communications from the plaintiff’s solicitors between the October 2022 directions hearing until shortly before the 17 February 2023 directions hearing, which communication was instigated by correspondence sent by the court to the parties in advance of the 17 February 2023 directions hearing.

To the extent that it was submitted any lack of communication related to a likely refusal of a further extension by Mr Mustafa, I do not accept that submission, which was also not supported by any probative evidence. I also do not accept that it can be inferred that Mr Mustafa would have refused a request for a short extension if it had been made before the Security End Date. That would be speculation. The request was not made and it is not known what response Mr Mustafa would have given had it been made.

However, this lack of communication, although undesirable, does not weigh particularly heavily against the plaintiff because the evidence reveals that it was really only at the last minute, on 16 March 2023, that Mr Mitrov became aware that the loan was to be delayed until early April 2023. Given what was in my view the reasonable expectation of the plaintiff until 16 March 2023 that funds would be advanced in time to provide the Security before the passing of the Security End Date, and the late notice to the plaintiff of events that were beyond its control, the failure to seek an extension or notify the parties or the court at an earlier point in time ought not to weigh heavily against the grant of relief in the present circumstances.

That said, and although the failure to communicate earlier about the state of affairs has not ultimately weighed heavily against the grant of relief to the plaintiff in this case, I remain of the view that the plaintiff ought to have kept Mr Mustafa better informed of what was proposed in advance of the Security End Date — and certainly from 16 March 2023 when the plaintiff became aware that loan funds would not be advanced in time, even though that was only the day before the Security End Date.

Having regard to all of the evidence, in the circumstances I am satisfied that the plaintiff has established that its failure to comply with the Security Order by the Security End Date was not wilful, contumelious or indifferent. The failure to take steps at the last minute (or earlier) to seek a further extension was certainly not ideal, but does not in this case — whether alone or together with one or more of any of the other circumstances — weigh heavily against what justice requires, which is the granting of the relief sought by the plaintiff on this application.

Comparative prejudice of the plaintiff and Mr Mustafa

The prejudice to the plaintiff if the relief is not granted is real. The plaintiff will be deprived of the opportunity to have its claim determined on the merits at trial, being a claim that raises serious allegations and, on the material before the court in the Security Application, appeared to be brought bona fide with some real prospects of success. In this context I echo the observations of the Court of Appeal in Jorgensen[86] referred to in paragraph 89 above regarding prejudice of this kind. So much was also appropriately acknowledged by counsel for Mr Mustafa and no more need be said on this topic.
[86][2008] VSCA 110.

It was also said that the plaintiff would be deprived of the opportunity to seek to obtain the $115,000 net proceeds of sale of the Hughes Street Property that are being held on trust by Mr Mustafa’s solicitor pending agreement or further order in this proceeding. So much appeared to be accepted by Mr Mustafa. Whilst in a substantive sense that may be so, as things stand there is no claim in this proceeding to this amount, whether by the plaintiff or Mr Mustafa. It therefore appears that this aspect may require some further attention from the parties, although that is of course a matter for the parties and their respective advisers.

In any event, even if the $115,000 proceeds issue is put to one side, that does not alter the extent and nature of the prejudice to the plaintiff referred to in paragraph 135 above if relief is not granted.

As to the plaintiff’s claimed prejudice regarding the asserted financial position of Ms Loci, this should not be given any material weight in the circumstances. The only evidence on the topic is an asserted belief by Mr Mitrov, and there was no evidence about Ms Loci’s current financial position.[87] The issue was also only faintly pressed during submissions. This is sufficient to dispose of this aspect for present purposes.
[87]Although I note that the allegations in the statement of claim also suggest Ms Loci has an interest in some property.

In my view the prejudice to be suffered by Mr Mustafa if the relief is granted is materially less than that to be suffered by the plaintiff if relief is not granted. Primarily this is because although Mr Mustafa will be deprived of the procedural dismissal advantage gained from the plaintiff’s failure to comply with the Security Extension Order,[88] the substantive issues between Mr Mustafa and the plaintiff will still fall to be considered on their merits at trial. I refer in this regard to the observations of the Court of Appeal in Jorgensen[89] in paragraph 89 above, and the observations of the Western Australian Court of Appeal in Sommerville[90] in paragraph 94 above.
[88]And the consequent operation of the SE Order.
[89][2008] VSCA 110.
[90][2023] WASCA 45. But noting that in Sommerville it was the plaintiff who obtained the advantage from non-compliance.

To the extent that Mr Mustafa contended that the costs position contributed to the balance of prejudice weighing more heavily on Mr Mustafa than the plaintiff, I do not accept that contention. Security has been ordered and is to be provided in accordance with the plaintiff’s undertaking before any relief on this application is operative. Any relief on this application will be made conditional upon the timely payment into court of the $62,000 Security by or on behalf of the plaintiff.

Further, if there are grounds for seeking additional security for costs from the plaintiff then there are steps that Mr Mustafa can take, including by first communicating with the plaintiff’s solicitors about it. If a further application is made it will be determined on its merits in due course, taking into account the relevant circumstances and considerations at that time. To date no such request has been made and no application is before the court — which, for the avoidance of doubt, is not intended to convey any implied criticism of any party or practitioner.[91]
[91]It is also not intended to imply that I consider there to be a basis for such an application, which I have not considered.

Further, the plaintiff was in a position to provide the Security not long after the Security End Date and it promptly paid the loan funds received into its solicitor’s account for that purpose, which is where the funds remain. Through no fault of the plaintiff, those funds were not made available before the Security End Date. Had they been made available before the Security End Date it may be inferred that the Security would have been paid on time thereby lifting the stay on the proceeding, and leaving the issues between the parties to be determined at trial unless resolved beforehand. In that circumstance, the costs position would have been the same as it is now, except for the issue of costs in relation to this application.

As to the costs of this application, I have not yet heard argument in relation to this issue and I do not know what the parties’ respective positions will be. However, it will be open for each of the parties to make such submissions as they wish on this issue.

To the extent that Mr Mustafa pressed a contention that the delay and time taken in the proceeding to date weighs materially against the plaintiff in the balance for present purposes, including in connection with fading memories, I do not accept that submission, although I accept that it is appropriate for the court to take these matters into account, as I do. I make the following further brief observations in this context.

First, in my view the relevant delay is not significant when looked at in context and substantively. This is because the plaintiff was in a position to provide the Security from about mid-April 2023, which was a matter of a few weeks after the Security End Date.

Second, the plaintiff foreshadowed an application of this nature[92] promptly on 20 March 2023, being the first business day after the Security End Date and in advance of the directions hearing on 24 March 2023.
[92]In the correspondence of 20 March 2023 reference was made to the application being brought under r 62.05, although that is not material for present purposes.

Third, the time taken between 20 March 2023 and today has been associated with facilitating the hearing of this application, including the filing of evidence and submissions in advance, noting also that the application was firmly opposed by Mr Mustafa, as he was entitled to do.

Fourth, there was no evidence regarding any challenges being experienced with any particular witness or party due to the passage of time, although it is accepted that the court can take judicial notice of such matters in a general sense.

Fifth, in any event, given the timing and chronology of events, the additional time that will have elapsed as a result of non-payment of the Security before the Security End Date is not material in the overall context. Taken alone or together with any other circumstance, it does not outweigh the prejudice to be suffered by the plaintiff if relief is not granted. This remains so even if it is assumed that the plaintiff has been as dilatory as was submitted in connection with discovery and other matters.[93]
[93]Which is not necessary to decide or address further at this stage.

Sixth, it may be observed that there is an element of reciprocity about the asserted prejudice in connection with fading memories, noting in this context that Mr Mitrov is of advanced years.

The end point on the question of prejudice is that, taking into account all of the circumstances, the prejudice to be suffered by the plaintiff by the loss of its right to have the substantive issues between the parties determined on their merits at trial materially outweighs the prejudice to be suffered by Mr Mustafa if the relief is granted to the plaintiff.

Additional matters

I have noted above that I have taken into account relevant CP Act considerations when weighing the evidence and circumstances whilst undertaking the discretionary process. I add the following brief observations in this context.

In the exercise of my discretion under rr 3.02 and 24.06 of the Rules I have sought to give effect to the overarching purpose of facilitating the just, efficient, timely and cost‑effective resolution of the real issues in dispute. Taking into account the matters that I have addressed earlier in these reasons, it is my view that the grant of the relief sought to the plaintiff on this application will best facilitate the overarching purpose. Among other things, it will facilitate the just resolution of the real issues in dispute because it will facilitate the substantive issues between the parties being determined upon their merits at trial, and provide further opportunities for the parties to seek to resolve or narrow the issues between them by agreement.

Further, I propose to address with the parties directions for the future conduct of the proceeding that will, in part, be directed to how, from this point, facilitating the just resolution of the real issues in dispute may best be undertaken in an efficient, timely and cost-effective manner. It is also to be noted in this context that I have concluded that, in the overall scheme and history of the proceeding, such additional delay as there has been as a result of the failure to provide the Security by the Security End Date, is not relevantly significant.

When taking into account the relevant circumstances, undertaking the discretionary exercise, and seeking to give effect to the overarching purpose, I have also had regard to the objects referred to in s 9 of the CP Act. With respect to these matters, I briefly draw attention to the following:[94]
[94]See s 9 of the CP Act.

(a) The course proposed should well serve the object of the just determination of the proceeding.

(b) The future conduct of the proceeding will now provide further opportunities for settlement of the disputes between the parties prior to and during any trial of the proceeding.

(c) The aim of my proposed engagement with the parties regarding how best to efficiently conduct the proceeding from this point will be directed to various objectives, including: the efficient conduct of the business of the court; the efficient use of judicial and other resources; minimising delay between now and any trial where possible; the timely determination of the proceeding from a forward-looking perspective; and approaching the management of the matter in a manner that is proportionate to the character of the issues in dispute and the amount in dispute.

Given that I have determined that justice requires that relief ought to be granted, it will be appreciated that the failure to grant relief in the circumstances would not well serve the just resolution of the real issues in dispute nor the object of the just determination of the proceeding.

In reaching the conclusions referred to in these reasons I have taken into account the history of the proceeding, aspects of which are evident from the Security Reasons, the affidavits relied upon and a review of the orders made in this proceeding to date. I have also proceeded on the assumption, for the purposes of the analysis, that the plaintiff has in aspects of the past conduct of the proceeding acted in a dilatory and reactive manner as referred to in the affidavits of Mr Mustafa’s solicitor, Mr Venegas. Although these matters have been taken into account on that assumption, when considered together with all of the other circumstances referred to in the evidence and addressed earlier in these reasons, in my view the grant of the relief to the plaintiff is what justice requires in the circumstances and what best serves the overarching purpose. It also follows that it is neither necessary nor desirable to descend further into the detail of the chronological history of the proceeding or make any further findings about them for present purposes. I add for completeness that I accept that some of the delay associated with the proceeding has resulted from the defendants being self-represented for considerable periods of time, which of course is not a criticism of the defendants.

To the extent that Mr Mustafa contended that the reservation of liberty to apply in the orders made on 21 February 2023 materially assisted his contention that the failure to seek an extension at an earlier date weighed heavily against the plaintiff on this application, I do not accept that submission. My substantive views regarding non‑compliance and the absence of relevant communications or steps prior to the Security End Date have been expressed earlier. Whilst it is true that the reservation of liberty to apply existed in the orders, the position would have been no different if it were otherwise. This is because it would have been open to the plaintiff to make an application for an extension of time under r 3.02 and an order under r 24.06 of the Rules regardless of whether liberty to apply had been expressly reserved.

Insofar as Mr Mustafa sought to draw material support from the results in other cases, including in particular the decisions in Mighty River,[95] Saltmarsh,[96] and Steicke,[97] I did not find these submissions persuasive or regard them as providing any material support to Mr Mustafa’s opposition to the application. This is not because they were irrelevant. It is because they each involved relevantly different facts and circumstances. It is sufficient to say that so much is apparent from a review of each of these cases when compared with the evidence and circumstances in this case, and it is neither necessary nor desirable for present purposes to descend into the detail of these various differences. I also note the proper acknowledgement during the hearing by counsel for both parties regarding the limited utility of seeking to draw parallels with discretionary conclusions reached in other cases involving different facts and circumstances at different times.
[95][2020] WASCA 44.
[96][2022] TASFC 8.
[97](2019) 134 SASR 114.

I add for completeness that I also accept Mr Mustafa’s submission that the decision in FAI[98] is also relevantly distinguishable on its facts.
[98](1988) 165 CLR 269.

With respect to Mr Mustafa’s submissions regarding the claimed inadequacies in the plaintiff’s evidence regarding what happened to the proposed loan from Oak Capital that was referred to in Mr Mitrov’s affidavit of 20 October 2022, I have addressed this matter earlier in these reasons. As previously noted, in my view Mr Mustafa was correct in his submission that there was scope for greater explanation. However, having regard to the evidence of Mr Mitrov and Mr Chellicovski regarding events from early January 2023 until mid-April 2023, this consideration does not in my view weigh materially against the granting of the relief sought when considered together with all of the other circumstances.

Lastly, it is relevant that the Security has not yet been provided. As many of the authorities reveal, a material consideration on applications such as these is whether the relevant non-compliance has been rectified. Not infrequently, the decided cases in this context involve circumstances where a step such as filing an affidavit, filing a pleading, or filing another document, is the relevant obligation. As counsel for Mr Mustafa appropriately acknowledged, the failure to comply with the Security Extension Order is of a different character in various respects.

That said, if relief was to be granted in a case such as the present in circumstances which allowed scope for the Security not to be paid, that would give rise to greater and unacceptable prejudice to Mr Mustafa. It is unnecessary for me to address this issue further because the plaintiff by its counsel gave the undertaking on behalf of the plaintiff to pay the Security into court forthwith if the application was successful. Mr Mustafa understandably did not contend that this was unsatisfactory. In any event, the orders will be shaped to ensure that the relief does not become operative unless the Security is paid into court promptly.

Exercise of discretion conclusion

Taking into account all of the circumstances, it has been established by the plaintiff that justice requires that the time for compliance with the Security Extension Order be extended for a short time and that the plaintiff be relieved from the consequences of the triggering of the SE Order. The granting of such relief will be made conditional upon the prompt payment of the Security into court by or on behalf of the plaintiff.

Conclusion and proposed orders

The plaintiff has succeeded in its application to have the dismissal of its claim against Mr Mustafa consequent upon its failure to provide the Security by the Security End Date set aside, and succeeded in its application to extend the time by which it is required to provide the Security, now for then, for a short period.

Subject to addressing the precise form of orders with the parties, and noting the importance of the plaintiff’s undertaking to the court to pay the Security into court forthwith after the hearing and determination of this application if it is successful, I propose to make orders to the following effect:

1.Subject to $62,000 being paid into court by or on behalf of the plaintiff, by 4:00pm on 10 July 2023 as security for the first defendant’s costs, then:
(a)the date in paragraph 1 of the orders of Justice Connock made on 21 February 2023 (Orders) (by which the plaintiff is to provide to the Associate Judge, who is the Senior Master of the Court, $62,000 by way of security for the first defendant’s costs of and incidental to this proceeding up to and including the first day of trial) is further extended, now for then, from 4:00pm on 17 March 2023 to 4:00pm on 10 July 2023;
(b)the dismissal of the plaintiff’s claim against the first defendant that followed from the plaintiff’s failure to provide $62,000 security for the first defendant’s costs by 4:00pm on 17 March 2023 as required by paragraph 1 of the Orders and the triggering of the self-executing order in paragraph 2 of the Orders, is set aside; and
(c)the costs order in paragraph 3 of the Orders is set aside.

I will also address with the parties the question of costs of this application and the further directions and orders that should be made regarding the future conduct of the proceeding.

[2023] VSC 386

7 July 2023