Benjamin v GB Franchising Australia Pty Ltd

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JOHN BENJAMIN v GB FRANCHISING AUSTRALIA PTY LIMITED
[2008] ACTCA 11 (1 July 2008)

PRACTICE AND PROCEDURE – Appeal from single judge – whether order interlocutory or final – whether appeal incompetent – order final and appeal competent.
PRACTICE AND PROCEDURE – Costs – Security for costs – respondent to appeal seeking security – grounds for granting – impecuniosity of appellant – factors in determining whether to order security – security ordered.
PRACTICE AND PROCEDURE – Judgments and orders – stay of execution – pending appeal principles for granting a stay – impecuniosity of appellant – capacity to appeal preserved – stay granted.

Bankruptcy Act 1966 (Cth) s 60(2)

Corporations Act 2001 (Cth) ss 206B(2), 436A, 459F, 598

Supreme Court Act (ACT) 1933 s 37J

Civil Procedures Rules 2005 (NSW) r 51.50

Court Procedures Rules 2006 (ACT) r 5312

Supreme Court Rules 1937 (ACT) O 33B, O 65

Uniform Civil Procedure Rules 1999 (Qld) r 772

Goodberry Holdings Pty Limited v Senatore and Ors [2005] ACTSC 141

Tampion v Anderson (1973) 3 ALR 414

Salter Rex & Co v Ghosh [1971] 2 QB 597

Border Auto Wreckers (Wodonga) Pty Ltd v Shrathdee [1997] 2 VR 49

Bozson v Altrincham Urban District Council [1903] 1 KB 547

Hall v Nominal Defendant (1966) 117 CLR 423

Licul v Corney (1976) 180 CLR 213

Carr v Finance Corporation of Australia Limited [No 1]  (1981) 147 CLR 246

Ex parte Bucknell (1936) 56 CLR 221

Cowell v Taylor (1885) 31 Ch D 34

Rainbow v Kittoe [1916] 1 Ch 313

Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310

Arnold v Queensland (1987) 73 ALR 607

Ivory v Telstra Corporation Limited [2001] QCA 490
Scerri v Northam Holdings Pty Limited [1967] VR 674
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1
Transglobal Capital Pty Limited and Anor v Yolarno Pty Limited (2004) 60 NSWLR 143
King v Commercial Bank of Australia Limited (1920) 28 CLR 289

Murchie v The Big Kart Track Pty Limited (No 2) [2003] 1 Qd R 528

Lucas v Yorke and Anor (1983) 50 ALR 228

P S Chellaram & Co Limited v China Ocean Shipping Co and Anor (1991) 102 ALR 321

Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483

Bryant and Anor v Keith Harris & Co Limited and Ors (1980) 49 FLR 137

Alexander v Cambridge Credit Corporation Limited (Receivers Appointed) (1985) 2 NSWLR 685

Kalifair Pty Limited and Anor v Digi-Tech (Australia) Limited and Ors;  McLean Tecnic Pty Limited and Ors v Digi-Tech (Australia) Limited and Ors (2002) 55 NSWLR 737

Fletcher and Ors v Commissioner of Taxation (1992) 37 FCR 288

Neil J Williams QC, Civil Procedure Victoria (LexisNexis Butterworths, Chatswood, 2000, looseleaf)

K R Handley, Spencer Bower, Turner and Hardly The Doctrine of Res Judicata (Butterworths, London, 1996)

REASONS FOR JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 30 of 2007
No. SC 441 of 2006

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Details
Case
[2008] ACTCA 11
Decision Date

CaseChat Overview and Summary

In *Benjamin v GB Franchising Australia Pty Ltd*, heard by Refshauge J, the appellant sought a stay of execution of a judgment pending an appeal, while the respondent sought security for costs of the appeal. The primary dispute concerned the appellant's financial capacity to meet potential costs orders and the respondent's ability to recover those costs if the appeal were unsuccessful.

The court was required to determine whether the order made by a single judge was interlocutory or final, and consequently, whether the appeal was competent. Further, the court had to consider the grounds for granting security for costs, specifically in light of the appellant's alleged impecuniosity, and the principles governing the grant of a stay of execution pending appeal, particularly concerning the preservation of the appellant's capacity to pursue their appeal.

Refshauge J reasoned that the order was final, rendering the appeal competent. Regarding the stay of execution, the court found it justified to preserve the appellant's ability to appeal, with liberty to apply if the appeal was not prosecuted expeditiously. On the issue of costs, the court ordered that the costs of the failed application to strike out the Notice of Appeal be paid by the respondent but deferred until the appeal's determination. The costs of the application for security were to be costs in the appeal, and the costs of the stay application were to be paid by the appellant, also deferred until the appeal's determination.

Orders

Orders of the court

Accordingly, I am of the view that a stay pending appeal is justified. There should, however, be liberty to apply in the event that the Appellant does not prosecute the appeal expeditiously.

As to costs, it seems to me that the costs of the failed application to strike out the Notice of Appeal should be paid by the Respondent but should not be payable until the appeal is determined. The costs of the application for security are in the discretion of the court, of course, and there appears to be no consistent line of authority to assist me in deciding the issue. It seems to me that the just order is that the costs of the application for security should be costs in the appeal: Murchie v The Big Kart Track Pty Limited (No 2) [2003] 1 Qd R 528 at 532.

Finally, the Appellant must pay the costs of the stay application, but these should not be taxed or paid until the appeal is determined.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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