SUPREME COURT OF VICTORIA

COURT OF APPEAL
S APCI 2019 0015

MAX KOSHANI	Applicant	
		
v 		
		
LONGXIANG GAO	First Respondent	
		
and		
		
XING CHEN	Second Respondent	
		
and		
		
REGISTRAR OF TITLES OF VICTORIA	Third Respondent	

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JUDGES:	KYROU and T FORREST JJA 	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	12 June 2019	
DATE OF JUDGMENT:	21 June 2019	
MEDIUM NEUTRAL CITATION:	[2019] VSCA 141	
JUDGMENT APPEALED FROM:	[2018] VSC 783 (Garde J)	

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PRACTICE AND PROCEDURE – Application for security for costs – Impecunious applicant – Low prospects of success on appeal – Amount of security sought excessive – Lesser amount ordered – Supreme Court (General Civil Procedure) Rules 2015 r 64.38.
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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant
	Mr J Selimi 
(Pro bono)	Radebe & Associates 
(Pro bono)	
			
For the First and Second Respondents	Mr S Clement 	Interise Legal 	
			
For the Third Respondent	No appearance		
KYROU JA
T FORREST JA:
	Background 
2	On 19 December 2018, a judge in the trial division entered judgment for Longxiang Gao and Xing Chen, and against Max Koshani in the sum of $999,789.32, together with statutory interest of $190,261.28.
3	Mr Koshani was also ordered to remove a caveat recorded on the title to a residential property at 14 St John’s Avenue, Mont Albert.
4	Mr Koshani has made an application for leave to appeal that judgment to this Court.  We shall refer to him as the applicant. 
5	Confronted with that application, Dr Gao and Ms Chen (the first and second respondents) seek security for costs pursuant to r 64.38 of the Supreme Court (General Civil Procedure) Rules 2015.  This judgment concerns this security for costs application. 
6	The Registrar of Titles is the third respondent.  An appearance was filed on his behalf at trial and he has taken no further part in the proceeding.  We shall refer to the first and second respondents as ‘the respondents’. 
7	Rule 64.38(1) provides that this Court ‘may make any order for the whole or any part of the costs of an application on appeal as it thinks fit’.  Sub-rule 2(a) entitles a party to an appeal to apply to this Court for an order that the applicant to an appeal give security for the costs of that application or appeal, and sub-rule 2(b) entitles that party to apply to the Court for an order that the application or appeal be stayed until security is given.  Rule 64.38(4) provides that the Court may make an order that security be given for the costs of an application or appeal on such terms as the Court thinks fit. 
8	The considerations relevant to this Court’s exercise of its discretion to order security for costs include:
(a)	the prospects of success of the appeal; 
(b)	the measure of risk that a costs order would remain unsatisfied; 
(c)	whether a proposed order would be harsh or oppressive in its operation by suppressing a reasonably arguable claim; 
(d)	whether any impecuniosity of the affected parties arises out of the conduct the subject of the original claim; 
(e)	whether the public interest militates against the making of the impugned order; and 
(f)	whether any other particular discretionary matters impact upon the application.
9	In Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd (No 3), McLeish JA put it this way:
The power of the Court to order security for costs involves an exercise of discretion.  Various factors have been identified as relevant to the exercise of that discretion, including the prospects of success of the appeal, the magnitude of risk that a costs order would not be satisfied, whether the making of the order would be oppressive in that it would stifle a reasonably arguable claim, whether any impecuniosity of the appellant arises out of the conduct complained of in the proceeding, and whether there are aspects of the public interest which ought to be weighed in the balance.
10	It is necessary to set out a very brief summary of the issues at trial and the arguments on this application.  At trial, the respondents (plaintiffs at trial) alleged that they made loans to the applicant to assist him in the development of a property at 6 Meldreth Street, Surrey Hills.  When the respondents demanded the loans be repaid, the applicant maintained that the funds were advanced by the respondents as instalments toward the purchase of the property at 14 St John’s Avenue, Mont Albert that the respondents had purchased from him.  He contended that as the instalments remained incomplete, he placed a caveat over the Mont Albert property.  The central issue at trial was whether the payments made by the respondents were loans and whether the applicant had repaid any of those loans.  In a counterclaim, the applicant alleged, amongst other things, breach of fiduciary duty, unconscionable conduct, contravention of duties both as an estate agent and also under the Australian Consumer Law and Fair Trading Act 2012.  The applicant had been represented when proceedings were issued but was self-represented at trial. 
11	The respondents gave evidence at trial.  The applicant did not give evidence and his Honour found that there was no evidence that supported his characterisation of the payments.  The judge accepted the respondents’ evidence on all issues and found that they had ‘succeeded in proving their claims against the applicant for the loans they made to him over the period from August to November 2016. These loans total $983,122.64.’  His Honour also allowed the respondents’ claim for $16,666.68 in interest incurred by them on a $400,000 bridging loan obtained by them for the applicant.  His Honour also found that the respondents were entitled to an order directing the Registrar of Titles to remove the caveat over the relevant property.
12	His Honour stated:
The counterclaim made by Mr Koshani was not supported by any evidence at the trial, and inevitably must be dismissed.
	This application 
13	Against this background, the respondents contend in substance that the applicant’s appeal is without merit and should it fail, it is unlikely that the applicant will pay any costs this Court may order against him.  In the circumstances, the respondents argue that it is appropriate for the Court to make an order for security for costs, with the proceeding stayed until that order is complied with.  The applicant submitted that he suffers from anxiety and depression, was only granted one week’s adjournment of his trial upon his application and was forced to continue with his trial despite this mental condition.  In his appeal grounds, he asserts in substance that he was denied a fair hearing as a consequence of:
(a)	his Honour failing to adjourn the trial either on the applicant’s application or of the Court’s own motion due to the applicant’s mental illness; and 
(b)	his Honour failing to provide the applicant with reasonable advice and assistance during the course of the trial ‘commensurate with the applicant’s mental illness’.  Seventeen particulars are set out in the application for leave to appeal. 
	Analysis 
14	In our view, the applicant’s prospects for success in his appeal are low.  In both his application for leave to appeal and his written case, it is made clear that he does not seek to challenge on the appeal any factual findings made at trial.  It was those unchallenged findings which underpinned his Honour’s judgment in favour of the respondents.  Counsel for the applicant orally submitted that although no challenge will be made to these factual findings on appeal, should the appeal be successful, at any retrial, the respondents’ accounts may be contested in cross-examination and by contradictory evidence. 
15	The application for leave to appeal contains essentially the one ground of appeal — that the applicant was denied the right to a fair hearing as a product of the judge’s failure to a) adjourn the trial for a reasonable time; and b) provide adequate advice and assistance to the applicant during the trial. 
16	The judge did adjourn the trial for a week from the listed date of 19 November 2018.  On that day, the applicant submitted that the respondents were criminals, negotiations were useless, his life had been destroyed and he was at court to see the first respondent in gaol.  He handed up a report and said he needed at least two months to be ready for trial.  That report was dated 9 November 2018.  It was addressed to the applicant’s then solicitor, Mr Oman Seoud.  The author, Mr Jeremy Candappa, who described himself as a psychotherapist, purportedly diagnosed the applicant as suffering from severe anxiety and depression, symptomatic of complex post-traumatic stress disorder, and concluded that he was ‘not of sound and objective mind enough to undertake the Trial process’.
17	On 26 November 2018, the applicant withdrew his application for an adjournment on the basis of his mental condition.  He stated to his Honour:
… actually I’m very comfortable and happy not to be adjourned.  I do not want this case to be adjourned.
18	There is a background to this ‘Candappa report’.  The proceeding had been originally listed for trial on 30 January 2018 at a time when the applicant was legally represented.  A report from Mr Candappa dated 25 January 2018 was served on the respondents.  The trial was adjourned.  The respondents disputed the applicant’s asserted psychological condition and attempted to have him examined by an expert nominated by them.  On 27 September 2018, Derham AsJ made self-executing orders requiring the applicant to attend an appointment with the respondent’s expert at a nominated time and place, failing which those parts of the applicant’s amended defence and counterclaim referable to his alleged mental state would be struck out.  The applicant did not comply with that order.  On 19 November 2018, the applicant sought to tender the further ‘report’ from Mr Candappa.  The respondents objected to this.  They queried Mr Candappa’s qualifications and contended that the report did not appear to be a psychological assessment.  Ultimately, the November report was received only for identification and at no stage was Mr Candappa made available for cross-examination.
19	We note that Mr Candappa’s ‘report’ of 9 November 2018, in addition to describing Mr Candeppa as a psychotherapist, contained a ‘psychosocial assessment and treatment report’.  He described his qualifications as ‘Bachelor of Arts (Hons.), Master of Arts, Masters of Business Administration, and Graduate Diploma of Psychodrama MAASW’.  We have no confidence that this is an expert psychological report.  It was rightly not admitted into evidence.  
20	In our view, the applicant has low prospects of success on this ‘failure to adjourn’ ground. 
21	The applicant further contends that his Honour failed to provide advice and assistance to the applicant during the trial ‘commensurate with the applicant’s mental illness’.  We have had the opportunity to consider relevant portions of the transcript.  The transcript shows that his Honour repeatedly and patiently explained to the applicant the trial procedures, he outlined issues he considered relevant to the applicant’s case, he assisted the applicant’s examination and cross-examination, he invited submissions at appropriate times, and he explained the importance of the evidence of the parties to the outcome of the proceeding. 
22	A trial judge is under a duty to ensure that a trial is conducted fairly and in accordance with law.  Where a litigant is unrepresented, a trial judge is required to give ‘proper assistance’ to that litigant.  The scope of that assistance will depend on the particular litigant and the nature of the case, but can never involve the judge becoming the litigant’s advocate.  The extent of a judge’s intervention must stop short of demonstrating that he or she is no longer neutral.  
23	In oral argument, counsel for the applicant developed this ‘failure to advise and assist’ argument.  In substance, it was contended that the applicant did not appreciate the consequences of not going into evidence and the impact that such a course would have on his defence to the claim and his counterclaim.  It was submitted that an examination of the entire trial transcript and particularly pages 220–234 evidence this proposition, and the associated proposition that his Honour did not do enough to assist and advise this unrepresented litigant on this issue.  
24	We acknowledge the dangers in reproducing selectively chosen passages from the trial and shall reproduce relevant exchanges between his Honour and the applicant that occurred at the end of the respondents’ case.  We have included a passage where the applicant unfortunately became emotional, as it has some relevance to his capacity to comprehend the information being provided to him by the judge:
HIS HONOUR: 	Mr Koshani, we’ve now reached the stage where your  			case would be presented in these proceedings.  You’ve  			heard what Mr Armstrong had to say.  You have the  			opportunity, if you wish to exercise it, of making an  			opening submission to the court concerning the facts of 			this case.  Do you understand?  So you have that 				opportunity, after which you can, if you wish to do				so - - - 
MR KOSHANI: 	Yes.
HIS HONOUR: 	- - - give evidence in the witness box and verify the 				affidavits that you have already sworn. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	The effect of that is to put those affidavits into 				evidence - - - 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	- - - before the court, so that that material can then be 			taken into consideration by the court in determining 			this matter. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	It is likely that if you give evidence, then you will be 			cross-examined by counsel on behalf of the plaintiffs.  			That, I think, you can regard as virtually certain - - -
MR KOSHANI: 	Yes. 
HIS HONOUR:	- - - if you give evidence. 
MR KOSHANI: 	Sure. 
HIS HONOUR: 	All right. 
MR KOSHANI: 	Yes, I can give evidence at any time.
HIS HONOUR: 	But that’s the position that you’re in. 
MR KOSHANI: 	Yes, sure. 
HIS HONOUR:	So the next step is do you wish to say anything to me - - 			- 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	- - - directed at the issues and facts in dispute at this 			point in time?  But you will get a later opportunity that 			both sides get at the end of the case also to make a 				closing submission to the court. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	So the first step is any opening submission that you 			wish to make?  The second step, if you wish to give				evidence, then we will do that.  You have the 				opportunity of calling other witnesses who may be 				relevant to this proceeding.
MR KOSHANI: 	Yes. 
HIS HONOUR: 	And then there are closing submissions.  That’s the 				course that will be followed.  Do you understand?
MR KOSHANI: 	Yes.  My Honour, what is the closing submission 				mean exactly? 
HIS HONOUR: 	Closing submission is where both sides highlight to 			the court particular facts which are in evidence - - - 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	- - - which support their position.
MR KOSHANI: 	Correct. 
HIS HONOUR: 	So address the court on the evidence that’s been				given as to why the court should be favourably to their 			position. 
MR KOSHANI: 	Correct. 
HIS HONOUR: 	Do you understand? 
MR KOSHANI: 	Yes.  Yes, I understand.
HIS HONOUR: 	All right.
MR KOSHANI: 	Now, My Honour, regarding Mr Harry – sorry, I				always forget his surname. 
HIS HONOUR: 	Mr Kyriakou, yes? 
MR KOSHANI: 	That’s right.  That’s right.  I have from somewhere – I 			don’t know who told me.  He sent a letter and he want 			to be a witness here.  So I really need him to come here 			and do that. 
HIS HONOUR: 	He will be coming here. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	He will be coming here. 
MR KOSHANI: 	Yes.  I look for it. 
HIS HONOUR: 	It’s simply that in view of your indication yesterday 			that you were no longer - - - 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	- - - participating, what’s taken place is that the 				plaintiffs’ advisers decided that they didn’t need to 				call him. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	But that position has now been reversed and he will 			be giving evidence. 
MR KOSHANI: 	Sure. 
HIS HONOUR: 	As soon as we can fit him in. 
MR KOSHANI: 	Yes, it is.  Okay, sure.  And then regarding yesterday, is 			because – okay.  I sent an email yesterday to Mr Omar 			Soud because I was shocked when I asked the plaintiff 			and I said regarding 29 Essex Road, Mr Martin Mao is 			the purchaser and I was sort of shocked when the 				plaintiff say he don’t know him and he’s a lady. 
			You know, he’s not a man.  So that’s why I just freeze 			basically and I left the court after that because I’m 				thinking, how come I don’t know?  This is not what				even my own solicitor said.  So I sent an email to Mr 			Omar Soud and I can show you the email he replied, if 			you like. 
HIS HONOUR: 	We work on evidence in the court, Mr Koshani. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	So facts that I have regard to are supported in the 				witness box. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	They have to be sworn.
MR KOSHANI: 	Correct.  Correct.  So Mr Soud say sort of – I can  				forward the email later on – where that’s coming from.  			They know him.  They mentioned he’s a friend who – I 			don’t know how much I can say. 
HIS HONOUR: 	But Mr Koshani, this has to be the subject of evidence.  I 			can’t take into account facts in this case – in deciding 			this case – which aren’t supported - - -
			…
HIS HONOUR: 	Mr Koshani, I am hearing this case. 
MR KOSHANI: 	Correct.
HIS HONOUR: 	The boundaries of the case are described in the 				pleadings.  You have, through your legal advisers, set  			out your position.  The plaintiffs have set out their  				position. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	The issues are defined and described. Both sides have 			put in affidavits directed at the position. 
MR KOSHANI: 	Correct. 
HIS HONOUR: 	So that’s what I’m interested in.  And in terms of your 			opening address, you should focus on those issues - - - 
MR KOSHANI: 	Correct. 
HIS HONOUR: 	- - - because they’re the ones I’m determining.  I’m not 			determining some other dispute.  I’m determining  				what this case before me is about.
			…
MR KOSHANI: 	In the strongest words I can say.  I was recovering after 			my divorce settlement.  I was seeing psychologist.  I 			was going back to normal.  And everything crashed on  			me.  And the other day, when I put Mrs Chen in the 			box and I looked at her and the reason I cannot ask her 			any single question because I just freeze.  I did not 				know what to say.  Everything that happens to me 				came in front of my eye in two seconds.
HIS HONOUR: 	Mr Koshani, we need to focus on the case. 
MR KOSHANI: 	Sure. 
HIS HONOUR: 	Let’s focus on what this case is about. 
MR KOSHANI: 	Sure. 
HIS HONOUR: 	Whether the loans took place, whether they didn’t take 			place, what you intend to say about that.  I can’t deal 			with anything else. 
MR KOSHANI: 	Correct. 
HIS HONOUR: 	I’m conducting a trial about those issues. 
MR KOSHANI: 	Correct. 
HIS HONOUR: 	That’s the dispute.  Not other things. 
MR KOSHANI: 	Correct.
HIS HONOUR:	So it helps you if you focus on the case.
MR KOSHANI: 	Yes. 
HIS HONOUR: 	Because I can’t do anything about other stuff.
MR KOSHANI: 	Yes, I understand. 
HIS HONOUR: 	We need to look at what you have sworn affidavits 				about. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	What you have said the position is.
MR KOSHANI: 	Yes.
HIS HONOUR: 	That’s the case I’m determining. 
MR KOSHANI: 	My Honour - - - 
HIS HONOUR: 	I can’t take notice of - - - 
MR KOSHANI: 	Correct. 
HIS HONOUR: 	- - - information that’s not in evidence. 
MR KOSHANI: 	Correct.  My Honour, regarding my affidavit.  				Whatever I said, whatever is there, I absolutely can’t 			remember and why I don’t remember – at any time I’m 			ready to be in the witness box because this is my life.  I 			don’t read them. 
			That's why my solicitor, my barrister, they say, ‘Max, 			you need to read them. Please sit down and read  with 			us’.  And I say, ‘No, I’m not’. 	I can’t because all 				the bad memories keep coming, keep coming and just 			destroy me on daily basis.  But I’m not going to run 			away from anything.  This is my life and I will not 				forget it.  I will be ready at any time to stand there and 			say whatever they’re asking.
			…
HIS HONOUR: 	I can’t do anything - - - 
MR KOSHANI: 	Yes, I know. 
HIS HONOUR: 	- - - about your relationships with your legal advisors. 
MR KOSHANI: 	Very good. 
HIS HONOUR: 	I have all your affidavits. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	And they describe the facts in considerable detail, 				and I have the pleadings in this case - - - 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	- - - which highlight your position. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	Is there anything else you want to say to me at this 				stage that would amplify what is already before me? 
MR KOSHANI: 	What do you mean?  Sorry, my - - - 
HIS HONOUR: 	I have your affidavits which you’ve sworn to. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	They’re in the court book. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	I have the court documents in this case. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	I’ve got all of that. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	Is there anything else you want to add to that at this 			point of time, because the next step is to get on with 			the evidence - - - 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	- - - which is your evidence. 
MR KOSHANI: 	Yes.
HIS HONOUR: 	And if you decide to give evidence, I will take you 				through your affidavits, which you can verify - - -
MR KOSHANI: 	Yes. 
HIS HONOUR: 	- - - and, after that, it’s likely to be cross-examination, 			so that’s the next step in this case.  Are you ready to do 			that? 
MR KOSHANI: 	Yes, sir.  My Honour, I’m ready, but I don’t want to see 			my affidavits.  I just want to – ask me a question and I 			say.  I don’t - - - 
HIS HONOUR: 	Well - - - 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	It’s necessary for you to depose or otherwise to the 				correctness of your affidavits. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	They contain the detailed information - - - 
MR KOSHANI: 	Yes. 
HIS HONOUR:	 - - - in this proceeding, so that’s what they are.  That’s 			what they’re about. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	And if you wish to adopt those in evidence, you can.  If 			you don’t, then they don’t go into evidence. 
MR KOSHANI: 	Sure. 
HIS HONOUR: 	So - - - 
MR KOSHANI:	 So, yes, I will, My Honour, because - - -
HIS HONOUR: 	All right. 
MR KOSHANI:	- - - that’s the rule, yes. 
HIS HONOUR: 	Is there anything more you want to say to me at this 			stage, before we move to your evidence? 
MR KOSHANI: 	Yes, My Honour.  When do you think you can make 			your final judgment? 
HIS HONOUR: 	Well, we have to get through the case first.
MR KOSHANI: 	After that. I mean, let’s say - - - 
HIS HONOUR: 	And I have a lot of cases to decide, so I - - - 
MR KOSHANI: 	Because bank’s chasing me. 
HIS HONOUR: 	That’s where it is. 
MR KOSHANI: 	My Honour, bank’s chasing me.  Every day I have 20 			calls.  I have creditors.  I always paid my bills on time.  			Now everybody’s chasing me, and, believe me, they’re 			chasing me so badly I pick up the phone and I say, 				‘How can I help?’ and they say, ‘Is Mr Koshani here?’			and I say, ‘No, he’s in a hospital.’ They say, ‘Oh, sorry, 			when can he come back.’  I say, ‘Two months later.’ 
HIS HONOUR: 	All right. 
MR KOSHANI: 	And I’m getting so many text messages. 
HIS HONOUR: 	Yes. 
MR KOSHANI: 	I got (indistinct) sitting online, banks looking them up 			right now, and, you know, everything is messy.  I 				mean, the only thing I’m paying is for my car finance, 			which – even my insurance has been cancelled and I 			did not know about it.  So I got my car damaged.
			I took it to the repair shop.  I said, ‘Excuse me, can you 			do this.’  They say, ‘Yes, we can.  Tell the insurance do 			it this way – that way.  Mr Koshani, make some 	 			money.’  I will tell them – I say, ‘Wow, everybody do a 			scam.’  And then I came out – I called the RACV.  They 			say, ‘Your insurance has expired five months.’  And 			also that’s another good news, and then this is the last  			month I can pay for my car, and that’s it. 
HIS HONOUR: 	All right. 
MR KOSHANI: 	Finish. 
HIS HONOUR: 	Well, Mr Koshani - - -
MR KOSHANI: 	And it is the last summer he is going to swim in my 			pool.  He’s not going to do that. 
HIS HONOUR: 	No, no, Mr Koshani - - - 
MR KOSHANI: 	I don’t allow that. 
HIS HONOUR: 	- - - let’s focus on the facts. Let’s - - - 
MR KOSHANI: 	This is invasion. 
HIS HONOUR: 	Let’s focus on the facts. 
MR KOSHANI: 	This is Chinese invasion.  I don’t allow that, and you 			don’t defend Bin Laden. 
HIS HONOUR: 	Mr Koshani - - - 
MR KOSHANI: 	You don’t defend Bin Laden.  You don’t defend Hitler, 			because if he gets power, he’ll be another Hitler.  You 			(indistinct) give him an army.  He will be Hitler.  He 			don’t have heart. 
HIS HONOUR: 	All right. 
MR KOSHANI: 	You don’t do that.  My family sacrifices a lot - - - 
HIS HONOUR: 	Mr Koshani - - - 
MR KOSHANI: 	- - - a lot for democracy – a lot – a lot.  We have Anzac 			Day here.  We have Anzac Day.  They can go back to 			their country. 
HIS HONOUR: 	All right.
MR KOSHANI: 	They don’t need to be here.  They are all (indistinct).  			Why are they staying here for? What’s the purpose?  			They come into this country, and they all just 				(indistinct) bloody country, and they do everything 			they can for money – everything – every single thing.
HIS HONOUR: 	All right. 
MR KOSHANI: 	We have Anzac Day here.
HIS HONOUR:	Mister - - -
MR KOSHANI: 	We have Hitler.  You give him army, he’ll be Hitler.  			He’s saying he loves kids.  He love my kids.  Come on.
HIS HONOUR: 	Mr Koshani - - - 
MR KOSHANI: 	Come on.  Are you serious? 
HIS HONOUR: 	If you don’t behave - - - 
MR KOSHANI: 	Are you (indistinct). 
HIS HONOUR: 	- - - yourself you will be removed from the court. 
MR KOSHANI: 	I’m sorry, My Honour. 
HIS HONOUR: 	You sit down and you behave yourself. 
MR KOSHANI: 	Yes. 
HIS HONOUR: 	That outburst was totally unnecessary.  It does not help 			you.  It’s negative to your position.  You have to behave 			yourself.  This is a court of law.  You should treat it 				with respect.  If you don’t - - - 
MR KOSHANI: 	My Honour, I have due - - - 
HIS HONOUR: 	No, Mr Koshani - - - 
MR KOSHANI: 	- - - respect. 
HIS HONOUR: 	- - - you sit down. If you don’t treat this court with 				respect, you will simply be removed. 
MR KOSHANI: 	I do respect, yes, My Honour. 
HIS HONOUR: 	All right. Now, we’re at the stage where you have to 			decide whether you give evidence in this proceeding.  			Are you giving evidence in this proceeding?  What the 			court will do is to take a ten minute adjournment – give 			you a chance to settle down.  At the end of that, you  			should inform me as to whether you want to give 				evidence in this proceeding. If you do, then that’s what 			will happen.  If you don’t, then the case will continue. 			Do you understand?
MR KOSHANI: 	Yes, My Honour. 
HIS HONOUR: 	All right.  Adjourn the court for ten minutes.
			(Short adjournment)
HIS HONOUR: 	All right.  Mr Koshani, you’ve had an opportunity to 			compose yourself, have you?
MR KOSHANI: 	Yes, My Honour. 
HIS HONOUR: 	The next step in this proceeding is for you to determine 			whether you wish to give evidence in the proceeding.  			Do you wish to give evidence in the - - - 
MR KOSHANI: 	No, My Honour. 
HIS HONOUR: 	You do not?
MR KOSHANI: 	No.  I just – yes.
HIS HONOUR: 	All right.
MR KOSHANI: 	I’d be a disaster also. 
HIS HONOUR: 	All right.  Thank you.  The next step after that is 				whether there are any witness that you wish to call in 			the proceeding.
MR KOSHANI: 	Yes, My Honour.  I’ve got Effie, who’s okay.  She can 			come and just say – yes. 
HIS HONOUR: 	All right.
MR KOSHANI: 	Do I have to ask or they can ask whatever. 
HIS HONOUR: 	Yes.  Well, what evidence would your witness give? 
MR KOSHANI: 	Effie is the person who was introduced to me by 				plaintiffs. 
HIS HONOUR: 	Yes. 
MR KOSHANI: 	And that was right in the – just when the dispute 				basically start, right after that. 
HIS HONOUR: 	Yes.  How can she give evidence that bears on the 				issues in this proceeding?
MR KOSHANI: 	Yes. 
HIS HONOUR: 	In other words, tell me what you expect that she 				would say that bears on - - - 
MR KOSHANI: 	Yes.
HIS HONOUR: 	- - - the issues in this proceeding. 
MR KOSHANI: 	Yes.  She’s been witnessing of some sort of like cash – 			some sort of – it’s better if she says because I don’t – 			you know, she’s seen the cash.  She’s seen how they 			told me – Mr Gao say he’s going to go China.  When he 			come back, he going to pay the rest of the money.  She’s 			been witness of those things.
25	We consider the applicant’s prospects of success on this ground are quite low.  It must be borne steadily in mind that the applicant had participated actively in the trial for two days prior to being invited to commence his case.  He had seen the respondents give oral evidence, adopt their affidavits and the tender of those affidavits into evidence.  He had cross-examined Dr Gao over more than a day.  
26	While it is true that some of his Honour’s language was quite formal, our examination of the transcript suggests to us that the judge made it clear to the applicant that he had the option of giving oral evidence and that without his evidence, his affidavits would not be part of his case.  On one occasion, his Honour seemed to indicate that the applicant’s affidavits were already ‘before [him]’, although in the preponderance of the exchanges, his Honour was clear and direct that without evidence and verification of affidavits, ‘they don’t go into evidence’.  We observe that only two days earlier, the applicant had declined to cross-examine Ms Chen, despite her being a central witness for both respondents.  No particular issue has been taken with his Honour’s assistance and advice at that stage. 
27	Even if the applicant were, in some way, denied procedural fairness in one of the two identified ways, we doubt that it impacts positively upon his prospects of success on the appeal.  We have observed that on the appeal the applicant does not dispute any of his Honour’s factual findings, which led inevitably to judgment in favour of the respondents.  In Stead v State Government Insurance Commission, the High Court reasoned that notwithstanding a breach of natural justice, an appellate court would not order a new trial where that would inevitably lead to the trial judge making the same orders, although it accepted the difficulty in making such as assessment.  In this case, in the absence of any basis for impugning the judge’s factual findings, we doubt an appellate court would encounter such a difficulty. 
28	We are also satisfied that the applicant is unlikely to pay any costs orders made against him.  He has failed to pay previous costs orders in this litigation and has repeatedly asserted in the trial proceedings that he is indigent.  His sole remaining real property is encumbered and there is unlikely to be any balance after the mortgagee’s interest is satisfied.  He does not dispute the proposition that he is impecunious. 
29	We are not satisfied that the applicant’s impecuniosity arises out of the conduct complained of in circumstances where the applicant does not challenge any of his Honour’s findings of fact, nor are we satisfied that there is a public interest militating against making the orders sought.
30	In the circumstances, we are satisfied that an order for security for costs ought be made.  We are satisfied that the applicant’s appeal has low prospects of success and that he is unlikely to be able to meet any further costs orders made against him. 
31	The respondents claim 75 per cent of their estimate of their costs of the appeal (being $47,770.50), plus 75 per cent of the costs actually incurred in this present application (being $6,775.50).  We consider these costs to be excessive given the very narrow issues that will be determined on appeal.  In the circumstances, we consider a total sum of $30,000 to be appropriate. 
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