KABALAN v ELIAS BROS PTY LTD [1994] NSWCA 160

KABALAN v ELIAS BROS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 7 February 1994

[1994] NSWCA 160

Mahoney JA This is an application for security for costs in respect of an appeal to this Court from an order of Giles J. Summarising the matter briefly and therefore perhaps to an extent inadequately, the position is as follows. A claim was made which went before an arbitrator. The arbitration went against the appellant, Mr Kabalan.

An appeal was brought to Giles J and his Honour, in a judgment given on 12 November 1993, adopted the arbitrator's report and, in effect, found against the appellant, Mr Kabalan. Mr Kabalan has brought an appeal to this Court against his Honour's judgment. There are two basic grounds upon which the appeal has been brought. (I disregard count one for this purpose; it is a ground that does not appear to be relevant in relation to the present matter). The two grounds are: (1) that the referee ought not, in reaching his finding, have drawn inferences adverse to the appellant's case from the correspondence between the solicitors; and (2) the court ought not to have found that a particular conversation took place. The effect of that conversation was relied upon in relation to a defence under the Statute of Limitations.

This is a case to be brought to the Court of Appeal. It appears from the thrust of the judgment of Giles J that the likelihood of the appellant succeeding in the Court of Appeal is not very great. On one view it is relatively small, but it is a matter which is arguable and the appeal may be brought. The evidence establishes, so far as it appears from the material before this Court - and I emphasise that qualification - that if he fails, Mr Kabalan, the appellant, will not be able to pay the costs of the respondent to the appeal. He has stated in terms in his affidavit that he is not able to provide security for costs.