Mohareb v Harbour Radio Pty Ltd - [2020] NSWCA 231

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231
Hearing dates: 15 September 2020
Date of orders: 24 September 2020
Decision date: 24 September 2020
Before: Bell P; Leeming JA; Simpson AJA
Decision:
(i) leave to appeal refused;
(ii) the applicant to pay the respondents’ costs of the application.

Catchwords:
APPLICATION FOR LEAVE TO APPEAL – COSTS — security for costs – Uniform Civil Procedure Rules 2005 (NSW), r 42.21 – inherent jurisdiction of Supreme Court – reluctance to make orders against natural person – delay in making application – applicant bankrupt – evidence of funds transferred to overseas bank account in applicant’s name – applicant evasive and untruthful about transferred funds – applicant’s history of non-payment of court orders – where applicant has a history of failure to comply with costs orders

Legislation Cited:
Bankruptcy Act 1966 (Cth), s 60(2), (4)
Civil Procedure Act 2005 (NSW), ss 56, 60
Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 42.21
Supreme Court Act 1970 (NSW), s 75A
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39
Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105
In the Will of Gilbert (dec) (1946) 46 SR (NSW) 318
Li v State of New South Wales [2013] NSWCA 165
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Mohareb v Fairfax Media Publications Pty Ltd; Mohareb v Harbour Radio Pty Ltd [2019] NSWSC 1685
Morris v Hanley [2001] NSWCA 374
Mr D v Ms P [2020] NSWCA 174
Palmer v Mohareb [2019] NSWSC 975
Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
The Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823

Category: Principal judgment
Parties:
Proceedings no. 2017/25606:

Nader Mohareb (Applicant)
Harbour Radio Pty Limited (First Respondent)
Ray Hadley (Second Respondent)
State of New South Wales (Third Respondent)

Proceedings no. 2017/35614:
Nader Mohareb (Applicant)
Fairfax Media Publications Pty Limited (First Respondent)
Louise Hall (Second Respondent)
State of New South Wales (Third Respondent)
Representation:
Counsel:
In person (Applicant)
M Richardson (1st and 2nd Respondents in each proceeding)
S T Chrysanthou (3rd Respondent in each proceeding)
Solicitors:
N/A
Banki Haddock Fiora (1st and 2nd Respondents in each proceeding)
Crown Solicitors Office (3rd Respondent in each proceeding)

File Number(s): 2019/401439
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Civil

Citation:

Mohareb v Fairfax Media Publications Pty Ltd; Mohareb v Harbour Radio Pty Ltd [2019] NSWSC 1685

Date of Decision:

29 November 2019

Before:

Adamson J

File Number(s):

2017/25606; 2017/35614

HEADNOTE

[This headnote is not to be read as part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 231
Decision Date: 24 September 2020

CaseChat Overview and Summary

Mohareb (the applicant) sought leave to appeal a decision of the primary judge concerning an application for security for costs made by Harbour Radio Pty Ltd and others (the respondents). The dispute arose from the respondents' application for security for costs under rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), which was granted by the primary judge. The applicant contended that the primary judge erred in exercising their discretion to order security for costs.

The central legal issues before the Court of Appeal were whether the primary judge erred in principle or fact in ordering security for costs against the applicant, and whether the Court of Appeal should grant leave to appeal that decision. This involved considering the applicant's financial position, including his bankruptcy, and the respondents' evidence regarding funds transferred by the applicant to an overseas bank account. The Court also had to assess the applicant's credibility and his history of non-compliance with court orders.

The Court of Appeal considered the principles governing applications for security for costs, particularly in circumstances where the applicant is bankrupt. It noted the general reluctance to make orders against a natural person, but emphasised that this is not an absolute bar. The Court found that the primary judge had ample evidence to conclude that the applicant was evasive and untruthful regarding the transferred funds, and that his history of non-payment of costs orders was a significant factor. The Court also considered the delay in the applicant seeking leave to appeal.

Consequently, the Court of Appeal refused the applicant's application for leave to appeal and ordered that the applicant pay the respondents' costs of the application.

Orders

Orders of the court

(i) leave to appeal refused;

(ii) the applicant to pay the respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231
Hearing dates:	15 September 2020
Date of orders:	24 September 2020
Decision date:	24 September 2020
Before:	Bell P; Leeming JA; Simpson AJA
Decision:	(i) leave to appeal refused; (ii) the applicant to pay the respondents’ costs of the application.
Catchwords:	APPLICATION FOR LEAVE TO APPEAL – COSTS — security for costs – Uniform Civil Procedure Rules 2005 (NSW), r 42.21 – inherent jurisdiction of Supreme Court – reluctance to make orders against natural person – delay in making application – applicant bankrupt – evidence of funds transferred to overseas bank account in applicant’s name – applicant evasive and untruthful about transferred funds – applicant’s history of non-payment of court orders – where applicant has a history of failure to comply with costs orders
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 60(2), (4) Civil Procedure Act 2005 (NSW), ss 56, 60 Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 42.21 Supreme Court Act 1970 (NSW), s 75A Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39 Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 In the Will of Gilbert (dec) (1946) 46 SR (NSW) 318 Li v State of New South Wales [2013] NSWCA 165 Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 Mohareb v Fairfax Media Publications Pty Ltd; Mohareb v Harbour Radio Pty Ltd [2019] NSWSC 1685 Morris v Hanley [2001] NSWCA 374 Mr D v Ms P [2020] NSWCA 174 Palmer v Mohareb [2019] NSWSC 975 Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 The Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823
Category:	Principal judgment
Parties:	Proceedings no. 2017/25606: Nader Mohareb (Applicant) Harbour Radio Pty Limited (First Respondent) Ray Hadley (Second Respondent) State of New South Wales (Third Respondent) Proceedings no. 2017/35614: Nader Mohareb (Applicant) Fairfax Media Publications Pty Limited (First Respondent) Louise Hall (Second Respondent) State of New South Wales (Third Respondent)
Representation:	Counsel: In person (Applicant) M Richardson (1st and 2nd Respondents in each proceeding) S T Chrysanthou (3rd Respondent in each proceeding) Solicitors: N/A Banki Haddock Fiora (1st and 2nd Respondents in each proceeding) Crown Solicitors Office (3rd Respondent in each proceeding)
File Number(s):	2019/401439
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Civil Citation: Mohareb v Fairfax Media Publications Pty Ltd; Mohareb v Harbour Radio Pty Ltd [2019] NSWSC 1685 Date of Decision: 29 November 2019 Before: Adamson J File Number(s): 2017/25606; 2017/35614