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Stuart v Said

Stuart v Said

Case [2021] VSCA 226 20 August 2021

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0113

RAYMOND JOHN STUART	Applicant
v
KEVIN SAID	Respondent

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JUDGES:	MAXWELL P and McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2021
DATE OF ORDERS:	5 August 2021
DATE OF PUBLICATION OF REASONS:	20 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 226
JUDGMENT APPEALED FROM:	[2020] VSC 658 (Kennedy J)

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PRACTICE AND PROCEDURE – Security for costs – Inherent jurisdiction – Plaintiff (applicant) a natural person – Plaintiff impecunious – Whether discretion to order security for costs requires ‘exceptional circumstances’ or ‘additional factor’ – Multiple versions of pleading – Plaintiff unable to formulate claim against defendant – Substantial costs incurred by defendant - Circumstances justifying exercise of discretion not confined to specified categories – Inadequacy or absence of pleadings relevant to exercise of discretion – No error shown – Leave to appeal refused - Lines v Tana Pty Ltd [1987] VR 641, considered, Von Marburg v Aldred [No 3] [2017] VSC 146, approved.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Evans QC with Mr W Stark	Mahons with Yuncken & Yuncken Lawyers
For the Respondent	Mr S R Horgan QC with Mr N A Frenkel	HWL Ebsworth Lawyers

MAXWELL P
McLEISH JA:

The respondent succeeded before an associate judge, and again in an appeal conducted by way of hearing de novo before a judge in the Trial Division, in obtaining an order that the applicant provide security for his costs of a proceeding pending in the Trial Division.[1] The applicant sought leave to appeal on the basis that the judge erred in finding, and relying on the fact, that the respondent had failed to articulate a properly defined claim despite extensive opportunities to do so.
[1]See Stuart v Mordialloc Sporting Club Inc [2020] VSC 658 (‘Reasons’).

In his written case, the applicant’s argument had two aspects. He contended that the finding that he had failed to articulate a properly defined claim against the respondent was in error. He also contended that the cases imposed a legal standard in this respect which the judge failed to apply in any event.

In oral argument, senior counsel for the applicant did not press the former argument. He properly conceded that the applicant had failed to articulate an adequately pleaded claim against the respondent, and that, in those circumstances, he had been responsible for excessive costs and delay. However, he maintained the submission that the judge had erred in law in relying on this finding as a basis for ordering security for costs.

The latter submission was advanced in various ways, as outlined below. Having heard full argument, we formed the view that the submission was wrong in law and we made orders refusing leave to appeal accordingly. Our reasons follow.

Principles

Rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 provides that, in specified circumstances, the Court may order that the plaintiff give security for the defendant’s costs of the proceeding and may stay…

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.

Continue reading Stuart v Said

Details

AGLC: Stuart v Said [2021] VSCA 226
Case: [2021] VSCA 226
Decision Date: 20 August 2021

CaseChat Overview and Summary

In the case of Stuart v Said, the plaintiff, Mr Stuart, sought security for costs from the defendant, Mr Said, who was represented by counsel. The dispute arose out of a legal action where Mr Stuart, who was impecunious, was unable to formulate a clear and concise claim against Mr Said. This led to multiple versions of pleadings being filed, which incurred substantial costs for Mr Said. The case was heard in the Supreme Court of Victoria, where the court was required to decide whether the discretion to order security for costs was confined to specified categories of circumstances or if it could be exercised based on additional factors.

The legal issues before the court were whether the discretion to order security for costs in cases involving an impecunious plaintiff required the presence of 'exceptional circumstances' or an 'additional factor', and whether the inadequacy or absence of pleadings could be relevant to the exercise of this discretion. The court considered previous cases such as Lines v Tana Pty Ltd and Von Marburg v Aldred, which had established that the circumstances justifying the exercise of this discretion were not confined to specified categories. The court also examined the impact of the plaintiff's inability to formulate a coherent claim and the substantial costs incurred by the defendant due to the multiple versions of pleadings.

The court determined that there was no error shown in the exercise of the discretion to order security for costs. It held that the inadequacy or absence of pleadings could indeed be relevant to the exercise of this discretion. The court found that the circumstances in this case justified the exercise of the discretion to order security for costs, taking into account the impecuniosity of the plaintiff, the substantial costs incurred by the defendant, and the plaintiff's inability to formulate a clear claim. The court approved the reasoning in Von Marburg v Aldred and considered the case of Lines v Tana Pty Ltd. Leave to appeal was refused.

The court did not make any further orders beyond those already mentioned. The ruling confirmed that the discretion to order security for costs was not strictly confined to specified categories, and the court had the authority to consider additional factors in exercising this discretion.

Orders