Australian Horticultural Finance Pty Ltd v Jekos Holdings Pty Ltd

[1996] QCA 567

[1996] QCA 567

COURT OF APPEAL

FITZGERALD P
DAVIES JA

MACKENZIE J

Appeal No 4706 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

JEKOS HOLDINGS PTY LTD (ACN 009 940 738) Respondent

(Plaintiff)

Appeal No 4708 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

CJZ INVESTMENTS PTY LTD (ACN 009 951 062) Respondent

(Plaintiff)

Appeal No 4709 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

HGT INVESTMENTS PTY LTD (ACN 009 951 080) Respondent

(Plaintiff)

1

Appeal No 4710 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

PETER ZINN Respondent

(Plaintiff)

Appeal No 4711 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

JMB INVESTMENTS PTY LTD (ACN 009 951 071) Respondent

(Plaintiff)

Appeal No 4712 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

SHETTLESTON PTY LTD (ACN 009 905 891) Respondent

(Plaintiff)

Appeal No 4713 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

DABARY INVESTMENTS PTY LTD (ACN 009 951 382) Respondent

(Plaintiff)

Appeal No 4714 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

THEME (NO 3) PTY LTD (ACN 009 783 297) Respondent

(Plaintiff)

Appeal No 4715 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

ERAND PTY LTD (ACN 010 536 400) Respondent

(Plaintiff)

2

071096 D.1 T5/SJ22 M/T COA243/96

Appeal No 4716 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

KFA INVESTMENTS PTY LTD (ACN 009 951 053) Respondent

(Plaintiff)

Appeal No 4717 of 1992

AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant

(ACN 003 982 027) (Defendant)

and

ITA INVESTMENTS PTY LTD (ACN 009 979 819) Respondent

(Plaintiff)

BRISBANE
..DATE 07/10/96
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THE PRESIDENT: There are before the Court 11 applications
for security for costs each relating to an appeal which has
been instituted to the Court arising out of actions which
were instituted and heard in the trial division and in which
the appellants were unsuccessful.

Essentially, the issue between the parties at this point is not whether or not there should be security ordered against the appellant but as to the quantum. The applicant for security submits that because there are 11 appeals involved the figure should be something of the order of $22,000 whereas the respondent puts the figure at about $7,000, but accepts that Mr Monsour, a legal costs assessor, has estimated that for a one day appeal in respect of one of the actions a figure of about nine and half thousand dollars is likely to be the taxed costs.

It is not necessary to discuss the applications in detail. The principles which relate to applications of this character are well established. The main factor urged on behalf of the applicant for increasing beyond the nine and a half thousand dollars indicated by Mr Monsour is that on taxation, because there are 11 appeals, there will be costs allowed in relation to each appeal and therefore it is suggested a significantly higher figure than that indicated for one appeal should be granted by way of security.

On the other hand, it is well established that an order for
security is not necessarily intended to provide the
respondent with a complete indemnity in relation to costs it
071096 D.1 T5/SJ22 M/T COA243/96
might incur in defending judgments if it is unable to
recover costs ordered to be paid by an appellant or
appellants.

In my opinion, in the circumstances, there should be one single order in respect of all 11 applications and all 11 appeals that the respondent or respondents provide security in the sum of $10,000 to await the outcome of the appeals. The respondents should also pay the taxed costs of the proceedings before the Court today.

DAVIES JA: I agree.

MACKENZIE J: I agree.

THE PRESIDENT: The order will be as I have indicated.

MR COOPER: In what time does Your Honour contemplate security being provided to the satisfaction of the Registrar; seven days?

THE PRESIDENT: Do you want 14 days?

MR COOPER: Seven days.

THE PRESIDENT: You want seven, you want 21, what about-----

MR DRYSDALE: Yes, Your Honour, 14 sounds a reasonable middle ground, Your Honour.

MR COOPER: The matter's been alive and debated since mid- June so it's hardly a matter which has taken us by surprise.

THE PRESIDENT: You're not going to get on this year, Mr
Cooper.

MR COOPER: It won't, Your Honour, because of the further application before Mr Justice Dowsett in any event.

THE PRESIDENT: You're not going to get on this year anyway so 14 days doesn't sound too bad.

THE PRESIDENT: The Court further orders that the security
071096 D.1 T5/SJ22 M/T COA243/96
be
provided within 14 days from today's date.