Boros v Pages Property Investments Pty Ltd

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. MEAGHER JA: In the proceedings at first instance, the respondent to this appeal, Pages Property Investments Pty Ltd (PPI), obtained money judgments against the appellant (Mr Boros) and Pages Equipment Holdings Pty Ltd (PEH) (in liq), as second defendant. The primary judge (Black J) upheld two of several claims made by PPI against Mr Boros as its sole director and secretary during the period from 3 March 2008 to 12 September 2016: Pages Property Investments Pty Ltd v Attila Boros [2020] NSWSC 1270. The first, as found, was for a breach of his duty to exercise care and diligence (Corporations Act 2001 (Cth), s 180) in taking steps to ensure that PPI as lessor received the benefit of indexed rent payments from PEH. The second claim, as found, involved a breach of fiduciary duty in causing PPI to pay moneys to the ANZ Bank for the benefit of PEH. The relevant transaction involved PPI drawing a further $1,658,931 on its Cash Advance Facility with the bank and using those funds to repay the balance then owing by PEH under its Asset Finance Facility.
2. In accordance with his later reasons determining the quantum of Mr Boros' liability (Pages Property Investments Pty Ltd v Attila Boros [2020] NSWSC 1474) the primary judge entered judgment against him for the amount of $2,538,656 (order 1) and against PEH in the amount of $2,617,085 (order 2). Mr Boros and PEH were also ordered to pay 60% of PPI's costs of the proceedings (order 3) and 60% of PPI's reasonable costs of retaining an expert, Ms Fiona Bateman, to the extent that those costs did not come within order 3 (order 4).
3. By his notice of appeal Mr Boros seeks to set aside each of those money judgments and the costs orders. There are six grounds of appeal. Grounds 1, 2, 3 and 4 address the first claim, and 5 and 6 the second. None of those grounds challenges the primary judge's exercise of discretion in awarding costs in terms of orders 3 and 4. PEH is presently neither an appellant nor respondent to the appeal.
4. By its notice of motion filed 23 December 2020, PPI seeks to have the appeal dismissed (either entirely or, alternatively, in so far as it concerns orders 2 to 4) on the basis that PEH has not been made a party to the appeal. In the alternative, PPI seeks an order that the appeal be stayed until Mr Boros satisfies orders 1, 3 and 4 of 23 October 2020 as well as a costs order made in the same proceedings by Rees J on 13 December 2019, which order is not the subject of any appeal. PPI also seeks security for its costs of the appeal.

Absence of PEH as a party

1. PPI contends that PEH is a necessary party to the appeal because Mr Boros seeks to aside the money judgment against PEH as well as the costs orders against him and PEH. As to the money judgment, Mr Boros does not purport to bring the appeal for or on behalf of PEH and has no standing to do so. Accordingly, that claim is misconceived and has no reasonable prospects of success. It should be struck out.
2. As to the costs orders, PPI submits that they are to be construed, as between Mr Boros and PEH, as giving rise to a joint and several liability to pay costs: as to which see Ryan v South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660 at 663 (Bowen CJ in Eq) and Tsu v Nemeth [2012] NSWCA 29 at [69] (Handley JA).
3. There is no appeal from the making of the costs orders. Accordingly, the order setting them aside is only sought in the event that Mr Boros' appeal is successful. Nevertheless, the position remains that PEH is a person directly affected by the relief sought. If Mr Boros' appeal is successful the costs orders would be set aside and, depending on whether the matter was remitted to the court below as is the relief presently sought, the costs of the underlying proceedings would fall to be redetermined, in this Court or by the court below. In either event PEH would be directly affected by the outcome of that exercise, as well as by the setting aside of the existing costs orders on the allowing of the appeal. (It is not necessary in this context to differentiate between the two costs orders, although that dealing with Ms Bateman's costs appears to have been made at least in part to compensate PPI for failures to maintain proper accounting records).
4. In the circumstances two orders should be made in response to the relief sought by paragraphs 1 and 2 of PPI's notice of motion.
5. First, in order 3 of the relief sought in the notice of appeal, the reference to order 2 made on 23 October 2020 should be struck out. The Court has inherent power "to strike out, or strike out of, a notice of appeal matter which is, eg, frivolous, vexatious, irrelevant or otherwise oppressive": Corporate Affairs Commission v Solomon [1989] NSWCA 51 at 2 (Mahoney AP); Kingsman v Health Administration Corporation [2000] NSWCA 163 at [3] (Giles JA, Meagher and Fitzgerald JJA agreeing); and Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2010] VSCA 218 at [21] (Redlich JA and Beach AJA).
6. It is unnecessary to consider the extent of this Court's express power to make that order under the UCPR by the route of r 51.1(3), which applies "other provisions" of the UCPR, so far as applicable, to proceedings in this Court: see by way of example Nobarani v Mariconte [2016] NSWCA 214 at [16]-[19].
7. Secondly, to permit Mr Boros the opportunity to address PEH's position as a necessary party to the appeal, an order should be made directing that any application by him for leave under Corporations Act 2001 (Cth), s 471B to proceed against PEH (in liq), and to join it as a respondent to the appeal, be made within 14 days. That order is made having regard to the terms of UCPR, r 51.4, which require that as a person "directly affected by the relief sought" PEH be joined as a respondent in the appeal. In the event that Mr Boros does not avail himself of that opportunity, the appeal should be stayed until further order.

Stay pending satisfaction of outstanding costs orders and judgment sum

1. During the interlocutory stages of the underlying proceedings, an order was made that Mr Boros and PEH pay the costs of two applications which were heard over several days between September 2018 and June 2019. The amount of those costs has not been agreed or assessed. Nor have the amounts payable under the two costs orders made by the primary judge been agreed or assessed.
2. By paragraphs 3 and 4 of its notice of motion, PPI seeks an order staying the appeal proceedings until such time as Mr Boros has satisfied the costs orders made on 13 December 2019 and alternatively, staying the appeal until the money judgment and the costs orders made by the primary judge have been satisfied. In neither case is the stay sought until Mr Boros provides security for the satisfaction of all or some of those orders.
3. A general power to stay proceedings is conferred by Civil Procedure Act 2005 (NSW), s 67. That power is subject to the rules, including r 12.4, on which the applicant relies. It supplements the court's inherent and incidental powers to prevent abuse of its processes and to control its ordinary procedures, as well as the further and more specific powers conferred by the rules.
4. In support of its application for an order staying the prosecution of the appeal until the various costs orders have been satisfied, PPI relied on the decision of this Court in Pi v Zhou [2016] NSWCA 148. There, an order was made staying an application for leave to appeal until costs orders made in two earlier unsuccessful judicial review applications dealing with the same subject matter had been paid. That stay order was subsequently overturned on appeal for the reason that the applicant for leave already had the benefit of a set-off which exceeded the sum of the unpaid costs orders: Pi v Zhou [2017] NSWCA 16. The applicant in Pi v Zhou relied on the specific power in UCPR r 12.4 to stay further proceedings "on the same or substantially the same cause of action" brought following the discontinuance of earlier proceedings. He also relied on the court's inherent power to stay as an abuse of process the bringing of a second proceeding "in the same cause" without having paid the costs of the first. The relevant principles in relation to the inherent power are referred to by Giles JA in CGU Insurance Ltd v Watson (as trustee of the deed of arrangement in respect of Graves) [2007] NSWCA 301 at [40]-[41]. The present case does not involve the bringing of a second or third proceeding "in the same cause" as the first. Accordingly, neither the specific power nor the court's inherent power as relied on in that case have any application.
5. PPI's remaining argument in support of the stay was that "PPI should not be exposed to the oppression of yet further costs and delay without [Mr Boros] first being required to discharge his existing liability to PPI, or at least take reasonable steps to secure that liability". In oral argument it was suggested, albeit obliquely, that the appeal was brought as a means of delaying or defeating PPI's enforcement of that judgment.
6. The relevant sequence of events is as follows. Mr Boros filed and served a notice of intention to appeal. The "material date" was 23 October 2020 (r 51.2). The notice of appeal was then filed within 3 months, on 16 December 2020. By that time PPI had served a bankruptcy notice, which at that time was required to give the debtor 6 months in which to satisfy the debt. That notice was withdrawn and a second bankruptcy notice issued and served on 22 January 2021. That notice gave Mr Boros 21 days to pay the amount claimed. On 15 February 2021 Mr Boros filed an application in the Federal Court seeking to set aside the bankruptcy notice and in the alternative to extend the time for compliance with it until the determination of the appeal (Bankruptcy Act 1966 (Cth), s 41(6A)).
7. On the face of it none of that conduct provides a basis for concluding that the appeal has not been brought bona fide or that it is being used merely as a means of delaying or preventing the enforcement of the judgment. Nor does the fact that in prosecuting his appeal Mr Boros has not sought any stay of execution of the underlying judgment. That fact, and the other considerations referred to by Hely J in Warner v Frost [1999] FCA 830 at [7]-[8], are relevant to whether the time for compliance with the bankruptcy notice should be extended. However, they do not, without consideration of the grounds of appeal and Mr Boros' written submissions on this application, justify a conclusion that the bringing of the appeal constitutes an abuse of process. The prospects of the appeal are considered below, where I have concluded that the appeal is reasonably arguable, and more so with respect to the second claim.
8. As a general matter, an appeal would not ordinarily be stayed on the basis that the costs of the primary proceedings have not been paid or that the judgment debt has not been satisfied. That is because the appeal, if successful, would see the judgment and award of costs set aside: Pi v Zhou [2017] NSWCA 16 at [62] (Payne JA, Basten JA and Sackville AJA agreeing).
9. For these reasons there should be no stay of the appeal pending satisfaction of any outstanding costs obligations, or the judgment sum.

Security for costs

1. Rule 51.50 of the UCPR provides: 51.50 Security for costs (cf SCR Part 51, rule 16) (1) In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal. (2) Subject to subrules (1) and (3), no security for costs of an appeal is to be required. (2A) If an appellant or cross-appellant fails to comply with an order under this rule, the Court may order that the appellant's appeal or cross-appellant's cross-appeal be dismissed. (3) Subrules (1), (2) and (2A) do not affect the powers of the Court under rule 42.21 (which relates to security for costs).
2. The principles relevant to the exercise of the discretion to order security where there are "special circumstances" have been the subject of extensive consideration. For a recent review, see D (pseudonym) v P (pseudonym) [2020] NSWCA 174 at [31]-[39] (Bell P). In Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18], Basten JA (with whom Ipp JA and Hoeben J agreed) set out the following principles: (1) no order for security should be made in the absence of "special circumstances"; (2) consideration of what may constitute special circumstances should not be fettered by some general rule of practice; (3) impecuniosity, without more, will usually be insufficient; (4) an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature; (5) where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and (6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.
3. The assessment of the merits of the appeal required by the application of those principles should not involve or require a preliminary hearing of the appeal: Mualim v Dzelme [2020] NSWCA 333 at [8] (Basten JA). What is required is an assessment of whether the appeal is "hopeless" in the sense explained by Basten JA in Preston at [21]: ... may be taken to mean an appeal which is shown to lack reasonable prospects of success or not to be reasonably arguable. In most cases, it will appear from a reading of the judgment below and the notice of appeal that the appeal is reasonably arguable. In such cases the Court will not be required to engage upon an extensive consideration of the merits. In other cases, where the error is not obvious, perhaps because the notice of appeal is not professionally drafted, some further inquiry may be necessary.
4. The court will be particularly reluctant to order that security is provided by a natural person. In that respect Mr Boros relies on the "ancient and well established" rule that "a natural person who sues will not be ordered to give security for costs, however poor": Pearson v Naydler [1977] 1 WLR 899 at 902 (Megarry VC).
5. Whilst the ultimate onus is upon PPI to establish "special circumstances", the evidentiary onus of establishing that any order for security would stultify the appeal is on Mr Boros: Marks-Isaacs v Fowler [2005] NSWCA 37 at [24] (Handley JA); Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 at [28] (Gleeson JA). Ordinarily, the risk of stifling access to the courts by requiring security will be of less significance in an appeal proceeding, where there "has already been a determination adverse to the person against whom security for costs is sought", than it is where a natural person has commenced proceedings as plaintiff: Tait v Bindal People [2002] FCA 322 at [3] (Spender J); Starr-Diamond v Diamond [2013] NSWCA 7 at [19] (Hoeben JA).
6. In support of its application for security PPI says that Mr Boros' appeal has "limited prospects of success", that in the proceedings below Mr Boros, as a litigant in person, delayed the prosecution of the proceedings, refused to produce documents and to comply with discovery obligations, and otherwise caused delay, including by claiming that the proceedings were an "abuse of process" and later abandoning that claim.
7. Security is sought in an amount of $67,000 on the basis that the hearing of the appeal will occupy two days and the preparation for it a further three days, in each case involving senior and junior counsel and a solicitor. However, that amount is only PPI's estimate of its recoverable solicitor/client costs up to the commencement of the hearing. What is apparently contemplated is that there should be a further application made for security for the costs of the two day hearing.
8. In response, Mr Boros maintains that he is impecunious and that an order for security would prevent him from proceeding with his appeal.

Prospects of success

1. It is convenient first to make some assessment of the prospects of the appeal, which in the present case is not made easier by the fact that Mr Boros is self-represented. The subject matter of the appeal is confined to the two claims on which PPI succeeded.
2. As to the first, the primary judge found that Mr Boros breached his statutory duty as a director to exercise care and diligence in relation to ensuring that rent was paid in accordance with the indexing provisions of the First Lease between PPI and PEH. The relevant breach was in respect of unpaid rent during the period from 4 April 2011 to the date of his removal as a director on 12 September 2016 (Judgment [105]). PPI's claims for breaches of ss 181 and 182, and of Mr Boros' fiduciary duties, were rejected. Mr Boros' defences are dealt with between Judgment [108] and [111]. They relied on his having carried on an "earlier practice" with respect to the calculation and payment of rent; a construction of the First Lease which the primary judge rejected; a partly oral and partly implied set off arrangement, which the primary judge also rejected; and the fact of other payments totalling $1,358,266 having been made by PEH to PPI which Mr Boros contended should be set off against the shortfall in rental payments. Grounds of appeal 1 to 4 contend that the primary judge erred in rejecting these arguments. His Honour's reasons for doing so depend in part on findings of fact and in part on his conclusion that Mr Boros did not exercise reasonable care and diligence in taking steps to ensure PPI received the rent to which it was entitled. To the extent findings of fact are challenged, they face the difficulty that the primary judge did not accept Mr Boros' evidence, other than where it was "corroborated by documents or ... consistent with the objective probabilities" (Judgment [31]). There appears to be no significant contest as to the amount of the first claim if made out, being $457,280.
3. With respect to the second claim, the primary judge found that in agreeing to and effecting the transaction which reduced the liability of PEH to the ANZ Bank, and correspondingly increased the liability of PPI, Mr Boros "breached the rule against conflict of duty and interest", and accordingly his fiduciary duty (Judgment [123], [124]). The conflict arose because of Mr Boros' interest in PEH. A Mrs M T Page as trustee of the Page Family Discretionary Trust was the sole shareholder of PPI which held 50% of PEH, the remaining 50% shareholding being held equally by two companies, one controlled by Mr Boros and the other by a Mr Thatcher. His Honour did not determine PPI's alternative claims for breaches of duty under Corporations Act, ss 181 and 182.
4. Before the primary judge Mr Boros contended that the purpose for the increase in the PPI Cash Advance Facility and decrease in the PEH Asset Finance Facility, the former being a long term facility and the latter a short term one with higher interest rates, was to maintain PEH's solvency, which would otherwise have led to a default under the PPI group facility (Judgment [121]). The primary judge found that the extent of any risk of insolvency at the relevant time was not established on the evidence so as to provide an answer to the conflicts of duty and interest in respect of Mr Boros' participation in the transaction (Judgment [122]). At the same time, his Honour recognised that it was not "self evident" that the transaction was not in PPI's interests, and that PPI did not obtain a commercial benefit from funding PEH, in which it had a substantial interest. In his appeal Mr Boros challenges the conclusion that there was a breach of the conflict of duty and interest rule and the quantification of the loss suffered by PPI. Each of the primary judge's conclusions on these issues was not without difficulty.
5. In circumstances where PEH's liability to the ANZ was guaranteed by PPI and secured by mortgage over PPI's property at Punchbowl, the primary judge quantified the equitable compensation to which PPI was entitled as being "the amount of [the] borrowing and the additional interest paid by PPI on it" (Judgment [124]). The amount awarded was $2,081,376. By ground of appeal 5 it is contended the primary judge erred in awarding compensation which included the whole of the amount by which PPI's Cash Advance Facility was increased. Ground 6 contends that the proper measure of compensation required consideration of the fact that prior to the relevant transactions, PPI's existing facility entitled the bank to pursue it for the debt then owed by PEH without first pursuing PEH, as well as the fact that the result of PPI's repayment of PEH's debt was that PEH became indebted to PPI in an equivalent amount. The value of that asset does not appear to have been taken into account in the assessment of the compensation payable by Mr Boros.
6. PPI's description of Mr Boros' appeal as having "limited prospects of success" recognises that the appeal is reasonably arguable, and particularly with respect to the quantum issues in relation to the second claim.

Mr Boros' financial position

1. Mr Boros did not provide any evidence as to his financial position. PPI's evidence indicates the following. First, Mr Boros and his wife own a property at Keilor East where they presently live, in which their combined equity is at least $200,000. That property was purchased in 2018. Secondly, the two corporate trustees of his or their self-managed superannuation fund between them hold unencumbered properties the total value of which exceeds $1.2 million. Thirdly, a company of which Mr Boros' wife is presently sole shareholder owns two properties, one of which is unencumbered. The value of those properties is unknown. The shares in that company were held by PEH until July 2007, when they were transferred to Mr Boros' wife for a nominal consideration.

Stultification of the appeal

1. Mr Boros maintains that he is not in a position to satisfy the judgment sum or the existing costs orders from his own assets. On the face of the evidence that appears to be correct, and to that extent he may be described as "impecunious". However, that is not to suggest that Mr Boros does not have access to the assets of a self-managed superannuation fund or the company controlled by his wife, for the purpose of providing funds by way of security for the appeal.
2. In an exchange with the primary judge during the course of final address on 11 August 2020, Mr Boros made the following statements in relation to his "personal insolvency situation": ... back in 2018, your Honour, I did buy residential property which I was building a home on, which I bought in my name, it's not in an alternative [name], so I - there are some assets that - including a boat I bought in 2018 in my name ... you know the bills I'm currently facing when crystallised will definitely take - ... basically bankrupt me, but that's not to say that there aren't assets around that I could - you know, rely on to potentially negotiate a settlement to that, as I said including a residential property purchased in I think June 2018 in my name, not an alternative company's name or anything like that. So - and there is also an unpreserved amount that I have in my self-managed super fund, as well, that - that can be drawn back on, as well ...

Conclusion

1. The circumstances described above are sufficiently special to justify an order for security for costs. Mr Boros claims to be impecunious, and is, to the extent that he will not be able to satisfy the judgment sum and the outstanding costs orders in the event that the appeal is unsuccessful. However, the making of an order for security is not likely to prevent his prosecution of the appeal because of his access to other assets, including those in the superannuation fund. Thus, the essence of the "special circumstances" is that if 'push comes to shove', Mr Boros has access to assets which would not be available to PPI in enforcing any order for costs of the appeal. Whilst Mr Boros' case on appeal is reasonably arguable, there remains the prospect that it will fail. In the face of that prospect there should be an order for security, which ought not prevent the pursuit of the appeal.
2. PPI's solicitor estimates the total solicitor/client costs of conducting the appeal at $117,000, and the costs recoverable on the "ordinary" basis - being those costs reduced by about 25% - at $88,000. In my view the allowances in that estimate for the participation of instructing solicitors and both counsel in three days' preparation are generous, as is the allowance for other "general matters", including client and counsel conferences and correspondence with the appellant. Making adjustments for those matters, I fix the amount of security awarded for the preparation and hearing of the appeal at $60,000. That estimate accepts that the hearing is likely to extend beyond one day in view of Mr Boros being self-represented. This estimate does not contemplate another application for security for the costs of the hearing.
3. Accordingly, I make the following orders: 1. Order that the reference to order 2 in Order 3 of the Orders Sought in the appellant's notice of appeal be struck out. 2. Direct that any application to be made by the appellant for leave, under Corporations Act 2001 (Cth), s 471B, to proceed against Pages Equipment Holdings Pty Ltd as a respondent to the appeal be filed and served within 14 days. 3. Stay these proceedings until the appellant has (a) provided security for the respondent's costs of the appeal in accordance with Order 4 below and (b) joined Pages Equipment Holdings Pty Ltd as a respondent to the appeal. 4. The appellant provide within 21 days security for the respondent's costs of the appeal in the sum of $60,000, either by payment of that amount into court or in such other form as the appellant and respondent agree before 15 April 2021. 5. The appellant pay the respondent's costs of the notice of motion filed 23 December 2020.

Amendments 06 April 2021 - [18] - "Nor is" to "Nor does" in second sentence. [35] - inserted "of" after "corporate trustees". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2021