Banks v Copas Newham Pty Ltd - [2001] QCA 526

[2001] QCA 526
COURT OF APPEAL

WILLIAMS JA
MACKENZIE J
MULLINS J

Application No 9434 of 2001

RODNEY ROY BANKS AND JEANETTE ELLEN BANKS
Applicant/Plaintiff

and

COPAS NEWNHAM PTY LTD ACN 009 893 172
Respondent/First Defendant

and

GRAHAM NEWTON Respondent/Second Defendant

and

WONDERLEY AND HALL (A FIRM)
Not party to Appeal/Third Defendant

Appeal No 9434 of 2001

RODNEY ROY BANKS AND JEANETTE ELLEN BANKS
First Respondent (Plaintiff)

and

COPAS NEWNHAM PTY LTD Second Appellant (First Defendant?

and

GRAHAM NEWNHAM First Appellant (Second Defendant)

and

WONDERLEY AND HALL (A FIRM)
Second Respondent (Third Defendant)

BRISBANE

..DATE 21/11/2001

JUDGMENT

WILLIAMS JA: After a trial in the District Court Rodney Roy Banks and Jeanette Ellen Banks were awarded $50,256,000 damages against the defendants in the action Copas Newnham Pty Ltd, Graham Newnham and Wonderley and Hall.

His Honour further adjudged that each of the three defendants was liable to contribute equally to the amount of the judgment. Subsequent thereto Wonderley and Hall paid the full amount of the judgment to the plaintiffs.

Copas Newnham Pty Ltd and Graham Newnham have now appealed to this Court against the judgment. The applications now before this Court are three in number. Firstly, an application by Rodney Roy and Jeanette Ellen Banks for security for costs against the appellants Copas Newnham Pty Ltd and Graham Newnham. Secondly, an application by Wonderley and Hall for security for costs against those appellants. Thirdly, an application by the appellants Copas Newnham Pty Ltd and Graham Newnham for an order staying the judgment pending the hearing of the appeal.

I would note, with respect to the application for a stay, that it primarily is concerned with the issue of contribution being enforced as between the defendants and the order for costs in the original action.

Material has been filed by all parties relating to the applications for security for costs. Of particular significance is the affidavit of Graham Newnham who is, of course, the first appellant and was until a date late in 2000 a director of the second appellant, Copas Newnham Pty Ltd.

That is the only affidavit filed in response to the applications for security for costs. In my view, the affidavit is singularly deficient in a number of respects. The deponent described himself as a real estate agent but there is nothing in the affidavit to indicate his earnings or his general asset and liability position.

In paragraph 4 there is reference to the fact that he owns two properties, a residence jointly with his wife and also an investment property. He asserts that both are mortgaged to the National Australia Bank and that would appear to be supported by searches carried out by the applicants for security for costs.

The searches by those applicants have revealed that the Titles Office shows Newnham and his wife as the owner of two properties in Toowoomba, that is, two properties other than the investment property in Brisbane. There is no mention of what I will refer to as the third…

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.

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Details

Case: [2001] QCA 526
Decision Date: 21/11/2001

CaseChat Overview and Summary

In Banks v Copas Newham Pty Ltd, the Court of Appeal was called upon to determine three applications: the first, an application for security for costs against the appellants Copas Newham Pty Ltd and Graham Newnham by Rodney Roy and Jeanette Ellen Banks; the second, an application for security for costs against the same appellants by Wonderley and Hall; and the third, an application for a stay of judgment pending appeal by the appellants. The case originated in a District Court judgment awarding the plaintiffs $50,256,000 in damages against the defendants, with each defendant to contribute equally to the judgment amount. Wonderley and Hall had since paid the full amount of the judgment.

The legal issues before the Court of Appeal included the adequacy of the security for costs applications, the likelihood of success of the appeal, and the appropriateness of a stay of judgment pending appeal. The Court had to consider the financial position of the appellants and the potential impact of a stay on the respondents. The affidavit of Graham Newnham, a director of Copas Newham Pty Ltd, was deemed deficient as it did not adequately detail his financial situation or that of the company, nor did it mention other properties or recent financial transactions.

The Court of Appeal held that the applicants for security for costs had made out a case for such an order, considering the extensive and detailed judgment of the District Court, the evasiveness of the appellants in detailing their financial positions, and Graham Newnham's stated intention to resort to a Part X arrangement if the appeals were unsuccessful. The Court ordered that the appellants provide security for costs in the sum of $6,000 within 14 days. The Court also dismissed the application for a stay of judgment pending appeal, holding that the applicants had not discharged the onus of establishing that the case was an appropriate one for a stay.

The final orders of the Court of Appeal included directing the appellants to provide security for the costs of the appeal within 14 days, extending the time for the respondents to deliver their outlines of argument, and dismissing the application for a stay with costs. The costs of the applicants in the appeal were to follow the event.

Orders