Bampton v Vourlides - [2024] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

Bampton v Vourlides [2024] QCA 44

PARTIES:

WILLIAM JOHN BAMPTON
(appellant/respondent)
v
SUZANNE ELAINE VOURLIDES
(respondent/applicant)

FILE NO/S:

Appeal No 767 of 2024
DC No 2560 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

District Court at Brisbane – [2023] QDC 248 (Sheridan DCJ)

DELIVERED ON:

28 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2024

JUDGE:

Morrison JA

ORDER:

The application is dismissed, with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the respondent transferred an amount of money to the applicant by way of a gift from certain lotto winnings – where the respondent submitted below that he was induced to make the transfer by way of the applicant’s undue influence or unconscionable behaviour – where the respondent was not successful in the lower court proceeding – where the applicant applied for security for costs of the respondent’s appeal in the sum of $50,000 – where the respondent is a 93 year old man, who resides in an aged care facility and has disclosed his financial position to the Court – where the respondent has offered an undertaking to not in any way dispose of or deal with or diminish the value of his assets except for his reasonable legal costs, living expenses and accommodation expenses – whether security for costs should be ordered

Loel & Anor v Miller & Anor[2017] QCA 203, considered

COUNSEL:

I A Erskine for the appellant/respondent
M P Amerena for the respondent/applicant

SOLICITORS:

Barclay Beirne Lawyers for the appellant/respondent
Attwood Marshall Lawyers as town agents for Mark Treherne and Associates for the respondent/applicant

MORRISON JA: The respondent in the appeal has applied for an order that the appellant provide security for the costs of the appeal in the sum of $50,000.00, or such other amount as the court thinks fit.
The relevant applicable principles were stated in Loel v Miller[1] in the following terms:[2]
[1][2017] QCA 203; followed in Woolworths Group Ltd & Ors v Day [2018] QCA 79; see also Natcraft Pty Ltd & Anor v Det Norske Veritas [2002] QCA 241, and Murchie v Big Kart Track Pty Ltd (No 2) [2003] 1 Qd R 528.
[2]Loel v Miller at [2]-[4]. Footnotes omitted.
“[2] Rule 772 of the Uniform Civil Procedure Rules 1999 (Qld) confers on this Court a broad discretion to order a party to give security for the costs of an appeal. It relevantly provides:
‘772(1)The Court of Appeal ... may order an appellant to give security, in the form the court considers appropriate, for the prosecution of the appeal without delay and for payment of any costs the Court of Appeal may award to a respondent.’
[3]The power under r 772 has been described as an ‘unfettered’ discretion whether to order security and, if so, in what amount. Relevant factors include that the party has ‘had their day in court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bampton v Vourlides

Details

AGLC: Bampton v Vourlides [2024] QCA 44
Case: [2024] QCA 44
Decision Date: 28 March 2024

CaseChat Overview and Summary

The matter of Bampton v Vourlides involves an appeal against the refusal of a security for costs application by the respondent. The case was heard in the Queensland court, where the respondent, Mr Vourlides, a 93-year-old residing in an aged care facility, had previously transferred an amount of money to the applicant as a gift from certain lotto winnings. Mr Vourlides argued that he was induced to make the transfer by undue influence or unconscionable behaviour by the applicant. However, he was unsuccessful in his lower court proceeding. The applicant subsequently applied for security for costs of the respondent's appeal in the sum of $50,000. The primary legal issue for the court was whether security for costs should be ordered, given the respondent's offer of an undertaking to not dispose of or deal with or diminish the value of his assets except for his reasonable legal costs, living expenses, and accommodation expenses.

The court considered the respondent's undertaking as a significant factor against ordering security for costs. The court recognised that the asset protected by the undertaking was available as a source of funds to meet the costs, even if it required a statutory order for sale. The court also noted that the value of the asset far exceeded the likely costs of the appeal. The court concluded that the respondent's undertaking provided sufficient protection against the risk of the appellant being unable to pay the costs of the appeal. The court found that the assertion by the applicant's solicitor that the respondent regards the brother as antagonistic to her did not sufficiently raise the issue to any form of likelihood or lessen the force of the undertaking offered. Therefore, the court dismissed the application for security for costs, with costs.

In conclusion, the court dismissed the application for security for costs on the basis of the respondent's undertaking to not dispose of or deal with or diminish the value of his assets except for his reasonable legal costs, living expenses, and accommodation expenses. The court found that the respondent's undertaking provided sufficient protection against the risk of the appellant being unable to pay the costs of the appeal. The court's decision was based on the respondent's offer of an undertaking, which the court considered to be a significant factor against ordering security for costs. The court's decision highlights the importance of an undertaking in preventing the need for security for costs.

Orders

Orders of the court

The application is dismissed, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

No basis is given for such a concern other than the view, expressed not by the respondent herself but rather by her solicitor on information and belief, that she regards the brother as “having taken her father’s side in the litigation below, is antagonistic to her”. That assertion is not, in my view, sufficient to raise the issue to any form of likelihood, nor to the point that it would lessen the force of the undertaking offered.Conclusion In my view, the undertaking proffered by the appellant is, in the circumstances a factor which weighs heavily against ordering security for the costs. The asset it protects is available as a source of funds to meet such costs, even if doing so requires a statutory order for sale. That enforcement might take some time or require special steps, does not reduce its value of the undertaking in this context. The value of the asset far exceeds the likely costs of the appeal. For these reasons, upon that undertaking being given, the application should be dismissed. In the course of hearing Mr Erskine of counsel confirmed that the undertaking is still proffered. I therefore order:Upon the appellant, by his counsel, undertaking that, subject to the outcome of the appeal the subject of this proceeding, he will not remove from Australia or any way dispose of or deal with or diminish the value of his assets save for payment of his reasonable legal costs, his usual reasonable living expenses, and his accommodation expenses payable to Estia Health Ltd.1.The application is dismissed, with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bampton v Vourlides [2024] QCA 44
PARTIES:	WILLIAM JOHN BAMPTON (appellant/respondent) v SUZANNE ELAINE VOURLIDES (respondent/applicant)
FILE NO/S:	Appeal No 767 of 2024 DC No 2560 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs
ORIGINATING COURT:	District Court at Brisbane – [2023] QDC 248 (Sheridan DCJ)
DELIVERED ON:	28 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2024
JUDGE:	Morrison JA
ORDER:	The application is dismissed, with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the respondent transferred an amount of money to the applicant by way of a gift from certain lotto winnings – where the respondent submitted below that he was induced to make the transfer by way of the applicant’s undue influence or unconscionable behaviour – where the respondent was not successful in the lower court proceeding – where the applicant applied for security for costs of the respondent’s appeal in the sum of $50,000 – where the respondent is a 93 year old man, who resides in an aged care facility and has disclosed his financial position to the Court – where the respondent has offered an undertaking to not in any way dispose of or deal with or diminish the value of his assets except for his reasonable legal costs, living expenses and accommodation expenses – whether security for costs should be ordered Loel & Anor v Miller & Anor[2017] QCA 203, considered
COUNSEL:	I A Erskine for the appellant/respondent M P Amerena for the respondent/applicant
SOLICITORS:	Barclay Beirne Lawyers for the appellant/respondent Attwood Marshall Lawyers as town agents for Mark Treherne and Associates for the respondent/applicant