Richani v Martins Plaza Shopping Centre Pty Ltd (No 2)

[2022] SASCA 98

Supreme Court of South Australia

(Court of Appeal: Civil)

RICHANI v MARTINS PLAZA SHOPPING CENTRE PTY LTD (No 2)

[2022] SASCA 98

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

14 September 2022

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

On 28 July 2022 a single judge of this Court ordered that the applicant make payment of $15,000 into court as security for costs in an earlier appeal. The applicant now seeks leave to appeal that order. The applicant also seeks a stay of the security for costs order.

Held (the Court) refusing to grant leave to appeal:

1.      No arguable error in the judge’s decision has been identified.

2.      There is no utility in granting a stay.

3.      The appeal and interlocutory application are dismissed.

Uniform Civil Rules 2020 (SA) s 213.1, referred to.
Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168, considered.

RICHANI v MARTINS PLAZA SHOPPING CENTRE PTY LTD (No 2)
[2022] SASCA 98

Court of Appeal – Civil: Livesey P and Doyle JA

THE COURT (ex tempore):

1. By Notice of Appeal dated 12 September 2022, the applicant urgently seeks both a stay and leave to appeal against an order made by a single judge of this Court that he make payment of $15,000 into Court as security for costs for another appeal in this Court. 

2. In that earlier appeal, the applicant challenges a decision granting the respondent’s application for summary judgment on the applicant’s claim.  The judge stayed that appeal until security is given: he also ordered that the respondent have liberty to apply for summary dismissal if security is not given by close of business today. 

3. The applicant advances the sole ground of appeal that:

   To set aside the Order for my Security for costs the amount of $15000 as stated by the Honourable Justice Bleby on 17 August 2022 based on being a individual aged pension entitled to have my case heard. I understand that an order for security is generally not made against an individual party in proceedings.

4. Leave to appeal is required because the decision being appealed was interlocutory in nature.[1]  When considering whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three, inter-related questions.  They are:

   (1)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;

   (2)whether the decision raises an issue of principle or general importance; and

   (3)whether allowing the decision to stand would work a substantial injustice to the applicant. 

   [1]     Uniform Civil Rules 2020 (SA) r 213.1(1)(a).

5. The Court is reluctant to grant leave to appeal against interlocutory orders that do not, whether directly or by their practical effect, finally determine the substantive rights of the applicant.[2]

   [2]     Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168, [14] (Bleby J) citing Niemann v Electronic Industries Ltd [1978] VR 431; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40; Coles Myer Ltd v Bowman [1996] 1 VR 457.

6. The applicant’s submissions in support of his application for a stay and for leave to appeal the interlocutory decision do not identify any basis for the intervention of this Court.  The applicant has not demonstrated to this Court that any aspect of the judge’s reasoning was wrong or contrary to law, or that the exercise of any discretion miscarried.  There is no reason to doubt the correctness of the judge’s orders and the appeal appears to be without merit.

7. We refuse leave to appeal on the basis that the applicant has not identified any arguable error in the judge’s decision.  There is no utility in granting a stay and, in any event, no basis for a stay has been established.

   Conclusion

8. The applications for leave to appeal and for a stay are each dismissed.  The appeal is, for the avoidance of doubt, dismissed.