- Unreported Judgment
COURT OF APPEAL
Appeal No 4269 of 2018
DC No 96 of 2014
NEIL LITSTER MANSER Applicant
DANICA DARINKA RADALJ Respondent
WEDNESDAY, 30 MAY 2018
PHILIPPIDES JA: This is an application for security for costs of an appeal. It is brought by Mr Manser, the respondent to the appeal. Mr Manser was successful in obtaining judgment on 22 March 2018 in his favour in the District Court against Ms Radalj, the defendant in the action below and the respondent to the present case. I observe also that Ms Radalj has brought an application for an extension of time in which to appeal, as well as filing a notice of appeal. Mr Manser seeks security for costs in resisting the appeal on the basis that:
- the appellant has had a trial and lost;
- the appellant has poor prospects in being successful in the appeal; and
- the appellant is without funds and unable to meet an order for payment of costs of the appeal were she unsuccessful.
A synopsis of the proceeding below is that the parties purchased a residential property in a rural area. Mr Manser, who suffers from psychiatric illness, funded purchase of the property. The property was purchased as tenants in common, Ms Radalj having a four-fifths interest and Mr Manser a one-fifth interest. Some months after the property was purchased, Ms Radalj excluded Mr Manser from the property. Mr Manser sought orders setting aside the contract and a declaration that he was the sole legal beneficial owner of the property. Alternatively, he sought an order that Ms Radalj’s interest was held on a resulting trust or a constructive trust and should be transferred to him. Mr Manser also sought an order for payment to him of $40,000 which he alleged he had given Ms Radalj to pay to the seller of the property.
The basis for Mr Manser’s claim was that Ms Radalj had exercised undue influence over him in the purchase of the property or, alternatively, took unconscionable advantage of him. There was a counterclaim brought by Ms Radalj seeking a declaration as to her beneficial ownership and that the one-fifth interest was held in trust for her. She also sought an order for payment of $50,000, which she alleged was promised to be paid to her for work done and other matters.
Ms Radalj is a disability support pensioner. The parties were known to each other for some time leading up to the purchase of the property and had a relationship of sorts. They lived near each other prior to the purchase. The trial itself took four days. The primary judge concluded that Ms Radalj had unduly influenced Mr Manser in the purchase of the property and that she held $40,000 which he had given her on a constructive trust for him. Orders were made that the contract sale, insofar as Ms Radalj’s interest was concerned, be set aside and the sum of $40,000 was declared to be held on trust for Mr Manser. Ms Radalj was ordered to pay Mr Manser’s costs of the proceeding including reserved cost. Notwithstanding the orders made, Ms Radalj remains in the purchased premises.
Rule 772 of the UCPR confers jurisdiction on this Court to order a party to give security for costs of an appeal. The power conferred by that rule is a broad one. The different context in which the discretion is exercised on an application of this nature, as opposed to an application for security for costs in advance of a trial, renders the factors that weigh more heavily against an order for security for costs in advance of a trial of less relevance. In the present case and context, factors that are relevant are that the appellant has already had the opportunity of the ventilation of the matters in dispute by having had their day in Court and lost, as it were, and a consideration of the prospects of success of an appeal and also the appellant’s financial position.
The hearing below resulted in extensive reasons for judgment being delivered by the primary judge. The appellant’s notice of appeal alleges 97 grounds of appeal. The grounds of appeal are expressed in language which, it is fair to say, is confusing and more in the form of a narrative. I understand that the appellant is self-represented and therefore is at somewhat of a disadvantage in formulating the appeal. Nevertheless, it remains that the notice of appeal in its narrative form also appears to be framed under the misapprehension that the appeal is by way of a rehearing. Further, amongst the grounds of appeal are allegations which the applicant contends are scandalous. In this category fall the allegations that: the judgment may not have been written by the primary judge; the primary judge suffered from an eye condition which interfered with his ability to read the documents; the plaintiff and his legal advisors conspired to pervert the course of justice; and the plaintiff’s barrister attempted to trick the present appellant. There are other allegations of a similar nature which would be unlikely to enjoy any prospect of success.
In relation to the grounds just mentioned, which lack merit, the appellant contends that in order to pursue those grounds, an application to adduce further evidence will be required. A preliminary assessment of the grounds of appeal indicates that they suffer significant hurdles, that is, the other grounds of appeal and that the prospects of their success are also weak, if not bleak. They, to the extent that they are comprehensible, are unlikely to enjoy any prospects of success.
In relation to the consideration concerning Ms Radalj’s financial circumstances, her finances appear to be in a poor situation. She has very limited means. That is made apparent from the application for fee reduction which she filed and which indicates a source of income from Centrelink benefits. On the material before the Court, it would seem that if the appeal were dismissed, that the appellant would, on present evidence, have serious difficulties in paying Mr Manser the $40,000 which he was awarded below and the costs of the District Court proceedings, let alone the costs of an appeal.
In addition, Ms Radalj has filed an affidavit which, amongst other things, deposes to her financial circumstances. In the affidavit, it is stated that she is bankrupt. That has been clarified today to make it clear that Ms Radalj is not a declared bankrupt but that her financial situation is dire. In the circumstances of this case, when the very poor prospects of success of the appeal are considered and the apparent lack of merit in the grounds, to which I have referred, are considered in combination with the financial circumstances of Ms Radalj and the fact that she has had her day in Court and was entirely unsuccessful, including in her counterclaim, it is appropriate that the application for security for costs of the appeal be granted.
In the affidavit of Mr Bevan, it is deposed that the costs of the appeal are estimated to be between $8,000 and $21,000 exclusive of GST with a further amount of some $2,500 being required for incidental travelling expenses. It is stated that the estimate is a broad one because it is made in the absence of any outline of argument by the appellant. I consider that it is appropriate in the circumstances of this case that the security for costs be ordered to be in an amount of $8,000. I also consider it appropriate to order that the costs of this application be paid by the respondent. The orders of the Court are:
- The appellant is to furnish to the Registrar a security for the respondent’s costs of the appeal in the amount of $8,000 by 4:00 pm on 2 July 2018 in a form satisfactory to the Registrar.
- The appellant pay the respondent’s costs of and incidental to this application.
- Published Case Name:
Manser v Radalj
- Shortened Case Name:
Manser v Radalj
 QCA 100
30 May 2018
|Event||Citation or File||Date||Notes|
|QCA Interlocutory Judgment|| QCA 100||30 May 2018||Security for costs of appeal ordered: Philippides JA.|