Citation : JOSEPH -v- JOSEPH [2006] WADC 121

Appeal - Application by respondent for security of the costs of the appeal - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 63 r 10(5) (repealed)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 44(1)

Mann v Dabelstein [2006] WASCA 176

1 BUSS JA: The appellant and the respondent are sister and brother. On 15 August 2006, after a trial in the District Court, Judge Crisford dismissed the appellant's claim for damages against the respondent, and ordered the appellant to pay the respondent's costs of the action to be taxed. On 29 September 2006, the respondent's bill of costs was taxed at $25,669.30. Despite demand for payment, the appellant has not paid the respondent's taxed costs.

2 The appellant has appealed to this Court against Judge Crisford's judgment. The respondent has made an application for security of the costs of the appeal in the sum of $10,000. This application is before me today for determination.

3 The respondent relies upon an affidavit sworn by him on 14 December 2006, and an affidavit sworn by his solicitor, Mr Sierakowski, on 13 December 2006. The appellant has sworn an affidavit dated 15 January 2007 in opposition to the respondent's application.

4 The respondent, in his affidavit, deposes, relevantly and in substance, that:

(1) the appellant has failed to pay the taxed costs of $25,669.30;

(2) before the trial the appellant told him that "regardless of the outcome of the trial, she would not pay me any money or costs under any circumstances";

(3) the appellant resides in Malaysia and has resided there for many years;

(4) he has been advised by a solicitor, Mr Rishwant Singh, who practises in Malaysia, that the costs order of the District Court, and any costs order made in the respondent's favour by this Court, cannot be enforced directly in Malaysia, as Australia is not a reciprocating country to the Reciprocal Enforcement of Judgments Act 1958 (Malaysia). The respondent's only option to recover costs in Malaysia would be to commence a common law action in the courts of Malaysia, and that would cost between about $A5360 and $A7150;

(5) to the best of his knowledge, the appellant does not own any property in Western Australia against which a costs order could be enforced; and

(6) the appellant is a wealthy businesswoman with substantial assets in Malaysia.

5 The appellant, in her affidavit, deposes, relevantly and in substance, that:

(1) she ordinarily resides in Malaysia and not in Australia;

(2) Aherns Lawyers of Level 1, 85 Market Street, Fremantle, are the appellant's address for service in Western Australia;

(3) she has not paid the District Court costs, "as I believe that if I do pay and if I eventually succeed in the appeal, I would not be able to recover the same from the respondent". No basis for this alleged belief is set out in her affidavit;

(4) she has been advised to apply to the District Court for a stay of execution pending the determination of the appeal before this Court, and she will file such an application in "due course";

(5) she has been advised that any award of this Court and the District Court can be enforced against her in Malaysia, and that the costs incurred in enforcing the judgment would also be recoverable;

(6) she is in a financial position to pay any judgment sum that may become owing by her;

(7) the respondent "has not shown any merits regarding his chances of succeeding [sic] in the appeal";

(8) the respondent has not explained how he has calculated the amount of $10,000 which he claims as security; and

(9) in the event that security is granted she "would pray that a lower figure be allowed, and that the costs be deposited in Court pending the disposal of the appeal. I fear that I would not be able to recover the costs from the respondent if I should succeed in the appeal".

6 By r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), read with par (f) of the definition of "interim order" in r 3(1) of those Rules, a respondent to an appeal may apply for an interim order that an appellant provide security for the respondent's costs of the appeal. A single Judge has jurisdiction to determine the application. The former O 63 r 10(5) of the Rules of the Supreme Court 1971 (WA) empowered the Full Court, in special circumstances, to order that such security be given for the costs of an appeal as may be just. Under the Court of Appeal Rules, the discretion to order security is unfettered. See Mann v Dabelstein [2006] WASCA 176 at [16].

7 The respondent has appeared by counsel today. The appellant has also appeared by counsel today. After considering all of the papers before me and the submissions made by counsel I am satisfied that it is appropriate to order the appellant to give security for the costs of the appeal. I am so satisfied for these reasons. First, the appellant is not ordinarily resident in Australia. Secondly, the respondent has deposed in par 8 of his affidavit that before the trial of the action in the District Court the appellant told him, "regardless of the outcome of the trial, she would not pay me any money or costs under any circumstances". In her affidavit, the appellant has not responded to that allegation. Thirdly, although the appellant asserts in par 18 of her affidavit that she is in a financial position to pay any judgment sum that may become owing by her, there is no evidence that she has any assets in Australia. Indeed, to the contrary, the respondent deposes in par 12 of his affidavit that "as far as is known to me, the appellant does not own any property within the jurisdiction against which I can enforce the costs order made by the District Court or against which I can enforce any order for costs that may be made against the appellant in my favour from the hearing of this appeal".

8 Counsel for the parties in their submissions this morning gave some consideration to the merits of the appeal. It is unnecessary for me to say more than that, on the face of it, and entirely as a preliminary view, the appellant does not appear to have an overwhelming case or, indeed, even a particularly strong case, in the appeal.

9 The respondent did not explain until this morning how the sum of $10,000 which is sought as security is calculated. Counsel for the respondent handed up to the Court a minute of a draft bill of costs, which explains the basis upon which security in that sum is sought. I have perused the papers which have been filed in the appeal, and I have considered the minute of draft bill of costs. It is apparent to me that the appeal does not raise complex issues and the hearing should occupy not more than half a day.

10 In the circumstances, I have decided that security in the sum of $7000 should be ordered.