Boros v Pages Property Investments Pty Ltd

Boros v Pages Property Investments Pty Ltd - [2022] NSWCA 43 - NSWCA 2022 case summary — Zoe

[4]

Judgment

THE COURT: On 25 November 2021, we upheld an appeal brought by Mr Attila Boros against Pages Property Investments Pty Ltd (PPI): Boros v Pages Property Investments Pty Ltd [2021] NSWCA 288. The Court also ordered that PPI pay Mr Boros' costs of the appeal and pay Mr Boros' costs at trial. To the extent necessary, these brief reasons assume a familiarity with the decision of 25 November 2021.
On 1 April 2021, Meagher JA made orders requiring Mr Boros to provide security for costs of the appeal in the sum of $60,000: Boros v Pages Property Investments Pty Ltd [2021] NSWCA 50. Meagher JA also ordered that Mr Boros pay PPI's costs of its notice of motion filed 23 December 2020 seeking security for costs in circumstances where Mr Boros had resisted the application. In ordering security for costs, Meagher JA at [38]: "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."
Security in the sum of $60,000 was in due course paid into Court by Mr Boros on 25 May 2021.
On 21 December 2021, following the upholding of Mr Boros' appeal by this Court, the Registrar of the Court of Appeal notified the parties of the Court's intention under the Uniform Civil Procedure Rules 2005 (NSW), r 41.9, to pay out the moneys held by the Court as security for the costs of the appeal. In so doing, the Registrar drew the parties' attention to this Court's decision in Carter v Mehmet (No 2) [2021] NSWCA 333.
In that decision, which followed a successful appeal by a party who also had been ordered to provide for security for the costs of the appeal prior to its hearing, the Court at [11] referred to the following observation by Professor Dal Pont (GE Dal Pont, Law of Costs (5th ed, 2021, LexisNexis) at [28.66]): "Case authority dictates that a plaintiff who pays money into court as security for the defendant's costs of the action, and succeeds in the action and secures a costs order in his or her favour, is entitled to have that money paid out of the court as soon as judgment is entered … ."
Noting that no reason had been shown in that case why the funds paid into court should not be returned to the appellants forthwith, the Court ordered that the security be released.
In the present case, PPI has opposed the release of the moneys paid into Court notwithstanding the fact that it was not successful in its appeal. Submissions have been filed supported by an affidavit of Matthew Coulter sworn on 11 February 2022. That affidavit annexed a letter of 21 January 2022 from PPI's legal representatives to Mr Boros as follows: "… The $60,000 is held by the Court as security for our client's costs of the Appeal. Two costs orders were made in our client's favour in the Appeal by Meagher JA, on 1 April 2021 and 2 August 2021 respectively. Our client has filed an Application for Assessment of those costs. We enclose a copy of the filed Assessment. The amount claimed by our client in the Assessment totals $51,766.45 including interest (which continues to accrue). As a self-represented litigant in the proceedings, your costs are limited to the filing fee, hearing fee and external copying costs. On that basis, we are instructed that our client will consent to an amount being refunded to you from the security, calculated as follows: $8,233.55 (i.e. $60,000 less $51,766.45) plus your costs of the filing fee, hearing fee and reasonable external copying costs. The balance to is to remain with the Court as security for the two costs orders in our client's favour. Please provide a response to our proposal by 12pm on 28 January 2022. This letter is written on an open basis and will be provided to the Court for the purpose of deciding the question if orders cannot be agreed."
The affidavit also referred to separate proceedings between the parties in the Federal Circuit and Family Court of Australia in which a costs order in the sum of $28,328.85 was made against Mr Boros: Boros v Pages Property Investments Pty Ltd in the matter of Boros (No 2) [2021] FedCFamC2G 377. The affidavit recounted that Mr Boros had failed to pay the amount the subject of the adverse costs order and had also failed to pay costs in relation to the Supreme Court's decision at first instance. An interlocutory costs order in this respect had been made by Rees J against Mr Boros in December 2019: Pages Property Investments Pty Ltd v Boros [2019] NSWSC 1778.
Mr Coulter's affidavit also referred to the fact that in the Federal Circuit and Family Court of Australia's proceedings, Mr Boros had raised an argument that if he was successful in his appeal (a matter that has transpired), he would have a substantial set off or cross-claim exceeding the amount sought in the bankruptcy notice under consideration in the Federal Circuit and Family Court of Australia proceedings.
In written submissions, PPI opposed the return of the full amount of the $60,000 "because the purpose for which that security was ordered has not yet been fulfilled pending assessment of the two interlocutory costs orders made in PPI's favour in the appeal". This was a reference to the costs order made in respect of the security for costs application (see [2] above) and a further adverse costs order made in PPI's favour following an unsuccessful application by Mr Boros to adjourn the hearing of the appeal and to set aside Meagher JA's earlier orders for provision of security for costs. That (second) adverse costs order was made on 2 August 2021. PPI's written submissions seek to distinguish the present case from Carter v Mehmet (No 2) on the basis that the two interlocutory costs orders made by Meagher JA in favour of PPI were made "over the course of the present appeal."
Contrary to PPI's submissions, the order for security for costs made by Meagher JA was against the contingency that Mr Boros failed in his appeal and was designed to provide a fund from which at least some of PPI's costs could be paid. The premise upon which the order for security for costs was made, namely PPI's success on the appeal, has not come to pass. The orders of Meagher JA were not intended to provide security in respect of the costs order made on the security for costs application itself nor in relation to any interlocutory application made prior to the hearing of the appeal. As to the former, the costs incurred in the application were incurred before the security order was made. Meagher JA's decision to order security was not stated to be in respect of past costs incurred but, rather, was forward-looking.
Moreover, the order was made in respect of particular costs, viz. "for the preparation and hearing of the appeal": Boros v Pages Property Investments Pty Ltd [2021] NSWCA 50 at [39]. That description does not characterise either of the applications in respect of which PPI achieved costs orders in its favour.
In these circumstances, we accede to Mr Boros' submission that the costs paid into court should be released to him.
Insofar as PPI has a number of unsatisfied costs orders in this Court and in the Federal Circuit and Family Court of Australia, it may well be that those costs orders will be able to be set off following agreement or assessment (to the extent that they have not already been assessed) against the costs orders made in Mr Boros' favour both on this appeal and in respect of the proceedings at first instance. Whilst Mr Boros acted for himself during the hearing of the appeal and did not, so far as the Court is aware, incur professional costs, he was represented at the hearing before Black J at first instance in proceedings which were heard over 8 days: Pages Property Investments Pty Ltd v Attila Boros & Ors [2020] NSWSC 1270.
As to the costs of the application for the release of moneys paid into court by way of security, Mr Boros is unlikely to have incurred any recoverable costs as he continued to represent himself and was the identified author of the short written submissions filed. Nevertheless, to the extent that he has any entitlement to recover costs on the ordinary basis in relation to the argument concerning the release of moneys paid into Court, PPI should be ordered to pay those costs.
The Court makes the following orders: 1. Order that moneys paid into Court by Mr Boros as security for costs pursuant to the orders of Meagher JA be released to Mr Boros. 2. Order that Pages Property Investments Pty Ltd pay Mr Boros' costs in relation to the argument concerning the release of the moneys paid into Court.

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