Baird v Downing

[2018] QCA 135

[2018] QCA 135

COURT OF APPEAL

GOTTERSON JA

Appeal No 3755 of 2018
DC No 435 of 2016

DAVID BAIRD  Applicant

v

ARTHUR CHARLES DOWNING  Respondent

BRISBANE

FRIDAY, 22 JUNE 2018

JUDGMENT

GOTTERSON JA:  On the 13th of April 2018, the respondent to this application, Arthur Charles Downing, filed an amended application in this Court by which he seeks an extension of time within which to appeal against a judgment of the District Court at Brisbane entered on the 19th of April 2016, by which he was ordered to pay the applicant, David Baird, the sum of $168,165.27, which included interest.  The application seeks to adduce evidence that was not before the District Court judge.  In the usual course, the extension of time application and the appeal will be heard together.

By an application filed on the 30th of May 2018, Mr Baird has sought an order for security for costs of the application for an extension of time and any appeal.  Security is sought in the amount of $21,000.  Mr Baird has supported his application with affidavit material, which evidences that Mr Downing has limited financial means.  That really is not in issue.  His material also verifies an estimate of Mr Baird’s costs of the application for the extension of time and the appeal, if awarded to him on the standard basis.  The estimate is for $21,000.

A relevant consideration on this appeal is the prospect that the application for extension of time, and any appeal, have of success.  Mr Downing submits that his appeal will involve the same point on which his recent appeal, in appeal number 3317 of 2017, enjoyed success.  The point concerns misleading and deceptive conduct on the part of, principally, Mr Sutherland, and arguably also Mr Baird.  It is true that the point was not raised at first instance.  Mr Downing swears that he found out about the misleading and deceptive conduct only after the decision at first instance now under appeal.

The appeal in 3317 of 2017 was allowed on the 28th of March this year.  However, as I understand it, reasons for judgment, which are to be provided, have not yet been delivered.  I am therefore quite unable to assess the cogency of Mr Downing’s submission until reasons in that appeal are given.

It remains the fact that Mr Downing must first obtain an extension of time in order to appeal.  A decision on that, too, will depend, to a considerable degree, on his submission, to which I have referred.  The factors at play in this application are quite closely balanced.  Mr Downing has limited means, yet any security for costs order ought not stifle his appeal.  His prospects of success cannot, at this point, be categorised as negligible or minimal.

I have come to the conclusion that an order for security for costs, in a relatively modest amount, ought to be made.  I propose that that be $10,000.  Further, there should be liberty to apply to discharge or vary the order once the reasons in appeal number 3317 of 2017 have been published.  This is a clear case for reserving the costs of this application for determination when the application for an extension of time and any appeal are determined.

The orders of the Court will be:

1.The appellant, Arthur Charles Downing, give security for the respondent’s costs of and incidental to the application for an extension of time to appeal, and any appeal if time is extended, in the amount of $10,000, within 28 days of today, pursuant to rule 772 of the Uniform Civil Procedure Rules 1999.

2.Such security is to be in a form suitable to the Registrar.

3.Liberty is granted to apply to discharge or vary this order, once reasons for judgment in appeal number 3317 of 2017 are delivered.

4.The application filed by the appellant on the 21st of May 2018 is refused.

5.The costs of this application for security for costs are reserved to the Court that determines the application for extension of time and any appeal.