[2024] SASCA 66

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STEIN) CIV-23-010064 First Appellant: MR SAHEBALI AEINI In Person Second Appellant: OPAL CAPITAL PTY LTD In Person First Respondent: FROOZANDEH GHAEMI Counsel: MR A HURREN - Solicitor: HWL EBSWORTH LAWYERS Second Respondent: SHAHRAM IRANMEHR Counsel: MR A HURREN - Solicitor: HWL EBSWORTH LAWYERS Third Respondent: IPAD BUILDING SERVICES PTY LTD Counsel: MR A HURREN - Solicitor: HWL EBSWORTH LAWYERS Fourth Respondent: RUMI DEVELOPMENTS PTY LTD Counsel: MR A HURREN - Solicitor: HWL EBSWORTH LAWYERS Fifth Respondent: 244 STURT ROAD PTY LTD Counsel: MR A HURREN - Solicitor: HWL EBSWORTH LAWYERS Sixth Respondent: 301 STURT ROAD PTY LTD Counsel: MR A HURREN - Solicitor: HWL EBSWORTH LAWYERS Seventh Respondent: STURT DEVELOPMENTS (SA) PTY LTD Counsel: MR A HURREN - Solicitor: HWL EBSWORTH LAWYERS Hearing Date/s: 17/05/2024 File No/s: CIV-24-004043 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. AEINI v GHAEMI [2024] SASCA 66 Judgment of the Court of Appeal (The Honourable Justice Doyle and the Honourable Justice Bleby) 27 May 2024 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - APPEALS AS TO COSTS The applicants seek leave to appeal from the primary judge’s order that they pay the costs of a successful application for summary judgment against them, on an indemnity basis and forthwith. Dismissing the application for leave to appeal: 1. The applicants’ proposed grounds of appeal do not disclose any reasonably arguable basis for challenging the primary judge’s exercise of her broad discretion in relation to costs; and 2. Given the discretion relates to costs and no issue of general importance or principle arises, the interests of justice do not favour a grant of leave to appeal. -- 1 of 4 -- Collins v Djunaedi [2023] SASCA 97; Ghaemi v Opal Capital Pty Ltd [2023] SASC 153, considered. -- 2 of 4 -- AEINI & ANOR v GHAEMI & ORS [2024] SASCA 66 Court of Appeal – Civil: Doyle and Bleby JJA 1 THE COURT: This is an application for leave to appeal from the primary judge’s order that the applicants pay the costs of a successful application for summary judgment against them, on an indemnity basis and forthwith. 2 The principles governing an application for leave to appeal, and the caution which should be exercised before granting leave to appeal in a matter relating only to costs, are well known and need not be repeated.1 3 The application in respect of which the impugned costs order was made was an application to enforce a deed of settlement that related primarily to matters in dispute in some earlier proceedings between the parties. The respondents initially brought their summary judgment application in the earlier proceedings, but when a concern was raised about the Court’s jurisdiction to determine it in those proceedings, it was brought in these fresh proceedings. 4 Whilst earlier represented, the applicants were not represented during the progress and hearing of the summary judgment application. Summary judgment was ordered against them.2 5 In her reasons for making the impugned costs order, the primary judge set out the procedural history of the matter. She explained that whilst it would have been preferable for the respondents to have commenced their application in these proceedings, no costs were wasted by that occurring in the earlier proceedings. On the basis that costs follow the event, it was appropriate that the applicants pay the respondents’ costs of the application in both proceedings. 6 In considering whether those costs should be payable on an indemnity basis, the primary judge acknowledged the significance of the fact that the applicants were unrepresented, and needed the assistance of an interpreter. She also acknowledged that the application raised some factual and legal issues which were not straightforward. However, her Honour explained why, in her view, the costs which were incurred were nevertheless “a result of the [applicants’] unreasonable opposition and were not simply the result of a misguided attempt by the [applicants] to do their incompetent best”. This explanation included the applicants’ continued opposition to the application after her Honour, with the assistance of an interpreter, had explained to them the difficulties with their factual and legal position. 7 Finally, in ordering that the costs be payable forthwith, her Honour acknowledged the exceptional nature of this aspect of the order, but relied upon 1 See, for example, Collins v Djunaedi [2023] SASCA 97 at [32]-[33] (Doyle and Bleby JJA). 2 Ghaemi v Opal Capital Pty Ltd [2023] SASC 153. -- 3 of 4 -- [2024] SASCA 66 The Court 2 authorities to the effect that it may be justified where an interlocutory application raises a discrete matter and is aimed at efficiently disposing of the proceedings. Her Honour explained why the respondents’ application for summary judgment was aptly described in this way, even though there remained some other matters in issue in the fresh proceedings. 8 The applicants’ proposed grounds of appeal, and submissions in support, do not disclose any reasonably arguable basis for challenging the primary judge’s exercise of her broad discretion in relation to costs. 9 The primary judge did not overlook the difficulties confronting the applicants as unrepresented litigants. Even if we were to accept that the applicants’ initial opposition to the application was reasonable, and consistent with earlier legal advice, the gravamen of her Honour’s reasoning was that it became unreasonable once she had explained the difficulties they confronted. Having formed that view, it was open to her Honour to order that the costs of the application generally be payable on an indemnity basis. Whilst she might have done so, she was not required to confine the indemnity basis of the costs order to the period after her Honour had pointed out the difficulties in the applicants’ position. 10 Similarly, the fact that there remain other matters in dispute in the fresh proceedings (including in the applicants’ cross-claim) was relevant to, but not an obstacle to, the primary judge ordering that the costs be payable forthwith. 11 The balance of the matters sought to be advanced on appeal amount to no more than an attempt to re-argue matters argued below and appropriately addressed by the primary judge. 12 In summary, we are not satisfied that the applicants have identified any reasonably arguable basis for impugning the primary judge’s exercise of discretion. Given that the discretion was related to an issue of costs, and no issue of general importance or principle arises, the interests of justice do not favour a grant of leave to appeal. 13 The application for leave to appeal is dismissed. The applicants are to pay the respondents’ costs of the application, fixed in the sum of $750. -- 4 of 4 --