Bogaart, Shiu May Pty Ltd t/a Nightworx Night Club v Westminster Consultants Pty Ltd

[1998] QCA 389

COURT OF APPEAL

[1998] QCA 389

McPHERSON JA
PINCUS JA

JONES J

Appeal No 4870 of 1998

DESMOND BOGAART, SHIU MAY PTY LTD
TRADING AS NIGHTWORX NIGHT CLUB AND
RUMA CONSTRUCTIONS PTY LTD TRADING AS
RIVERSIDE SAND AND GRAVEL Appellants

(Defendants)

and

WESTMINSTER CONSULTANTS PTY LTD Respondent
(Plaintiff)

(ACN 061 471 679)

BRISBANE

..DATE 05/10/98

JUDGMENT
051098 T20/SA2 M/T COA252/98

McPHERSON JA: This is an application by the plaintiff in an action in the District Court where the plaintiff was successful in obtaining judgment summarily against the defendants in that action for a substantial sum of money. There is more than one defendant to the action; but it is convenient to refer to all three of them as only one because the principal defendant, who is a Mr Bogaart, was the person who acted as principal of the two corporate defendants in the action.

The application is aimed at stopping in its tracks an appeal by the defendant against that judgment. The basis of the application is that service of the notice of appeal was deficient and should be set aside. The notice of appeal was attempted to be served upon the solicitors on the record for the plaintiff by faxing it, but after 4 p.m. on the last day for appealing to those solicitors at their address for service in the action. That method of service is also said to be and to have been defective because the notice of appeal is an originating proceeding in this Court, service of which the solicitors, it is said, had no authority to accept.

Accordingly, it is submitted that the notice of appeal was not properly served at all, or at any rate within the time allowed by the Rules. It is conceded that the service was not effected within the time prescribed.

It is, on the other hand, not disputed that the notice of

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appeal was filed in time, nor is it suggested that the
plaintiff has suffered any prejudice by the attempted
service in the fashion described. Ever since the decision
in Middleton v. Freier [1958] Qd.R. 351, this Court or its
predecessor has generally been prepared to waive defects of
the kind described and to enlarge the time for appealing so
far as it may be necessary in cases of this nature. Subject
to what follows, I would not hesitate to do so on this
occasion.

However, by seeking an indulgence from this Court, as the defendant does here, the defendant exposes the appeal to scrutiny in this Court. We may, in consequence of being invited to exercise our discretion in favour of the defendant as appellant, examine the merits of the appeal. When they are examined, the matter that it is sought to argue on appeal assumes a somewhat less than impressive appearance.

The defendant is a resident of Papua New Guinea, but for some time past has nevertheless been carrying on business as an investor in Queensland. For that purpose, he engaged the plaintiff as his financial or investment adviser. In that capacity, she claims and has sworn to having done a good deal of work for him, for which, despite her sending statements of account or other requests to him, has not yet been paid for.

So far, the matter looks like one that would, if the claim

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was disputed as it was, need to go to trial; but the
plaintiff has the advantage of having received from the
defendant two, and possibly three, admissions of liability
for the amounts claimed. One of those admissions was in
writing, and one, which is oral, appears not to have been
disputed by the

defendant in the material filed on his behalf in the Court below or, at any rate, not so disputed as to make it clear that the admission did not take place in the form in which the plaintiff asserts. It was not until proceedings for

recovery were instituted that the defendant disputed either
the liability for the debt or its quantum, and that was done
only in a formal letter from the defendant's solicitors.

An attack was mounted on the quality of the admissions in question; but that is, on one view of it as I see it, a matter that can be effectively ventilated on appeal. On the face of it, as it appears now, the admissions in question look like reliable admissions against interest. In these circumstances, it seems to me to be appropriate to require the defendant to pay a price for the indulgence he is seeking from this Court in order to maintain on appeal a defence which may well turn out to be little more than a delaying tactic.

As a condition of allowing service of the notice of appeal to stand as effective service within time, the defendant should, in my opinion, be required to pay into Court the

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amount of the judgment entered in favour of the plaintiff. so that an order of this kind will not prevent him from pursuing the appeal as if he were unable to comply with the order. In addition, the defendant should, in my opinion, be required to provide security in an amount of $7,000 for the costs of the appeal.

Having regard to what has been said, I would make the following orders:

1. Upon payment into Court within 14 days of the
amount of $76,827.51 to abide the determination of the
appeal, order that service by facsimile of the notice
of appeal on the plaintiff's solicitors after 4 p.m. on
29 May 1998 stand as good service of that notice of

appeal on the plaintiff.

2. Further order that upon such payment proceedings in
execution of the judgment be stayed until further

order.

3. In default of such payment being made within the
time specified, or such further time as this Court for
good cause may allow, order that the application be
dismissed with costs including the costs of and
incidental to this application.

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4. Further order that within 14 days the defendant
provides security in the sum of $7,000 for the costs of
the appeal, such security to be in the form of a bank
guarantee as may be agreed upon by the plaintiff or, in

default of an agreement, determined by the Registrar.

5. Further order that, in the event that the appeal
proceeds, the costs of this application be the

plaintiff's costs of the appeal.

6. There will be leave to the defendants within seven
days to amend the notice of appeal as they may be

advised.

That is the series of orders that I propose.

PINCUS JA: I agree.

JONES J: And I agree.

McPHERSON JA: The orders will be as I have stated them.

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