Briggs v Lunt [No 2] - [2010] WASCA 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRIGGS -v- LUNT [No 2] [2010] WASCA 195

CORAM: PULLIN JA

HEARD: 20 AUGUST 2010

DELIVERED : 20 AUGUST 2010

FILE NO/S: CACV 60 of 2009

BETWEEN: PETER BRIGGS
First Appellant
NEW RESOURCE HOLDINGS PTY LTD
Second Appellant
AND
WILLIAM TREVOR LUNT
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :LUNT -v- BRIGGS [2009] WASC 134
File No  :CIV 1501 of 2001, CIV 1974 of 2001

Catchwords:

Practice and procedure - Late application for security for costs - Effect of delay - Two appellants - One unaffected by the application for the stay - Same grounds of appeal

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Mr P G McGowan
Second Appellant          :     Mr P G McGowan
Respondent:     Mr B W Duckham

Solicitors:

First Appellant               :     Vincent Partners
Second Appellant          :     Vincent Partners
Respondent:     B W Duckham & Co

Case(s) referred to in judgment(s):

Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [2009] WASC 299
Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 147
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114

PULLIN JA: This is the respondent's application that New Resource Holdings Pty Ltd, the second appellant, provide security for costs. That would usually go hand-in-hand with an application that the appeal be stayed pending the provision of such security. In the proceedings resulting in the judgments the subject of this appeal, there were originally two actions, CIV 1501 of 2001 in which the respondent sued Mr Briggs, the first appellant, and CIV 1974 of 2001 in which the respondent sued New Resource Holdings Pty Ltd. The actions were ordered to be consolidated and heard together by Heenan J. They were heard together but despite the consolidation order, it appears that judgment was entered after the trial in favour of the respondent against Mr Briggs in CIV 1501 of 2001 in a sum exceeding $900,000 and judgment was entered in favour of the respondent against New Resource Holdings Pty Ltd in CIV 1974 of 200l in a sum exceeding $800,000.
The two judgment debtors then appealed and instead of two appeals, one appeal has been instituted with one set of grounds. All grounds allege errors of fact affecting both judgments, save for one point covered in the grounds concerning an alleged limitation defence which was also relevant to both judgments.
The applicant, in seeking security for costs, seeks to invoke the jurisdiction of the court under r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), together with par (f) of the definition of 'interim order' in r 3(1)…

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 Briggs v Lunt [No 2]

Details

AGLC: Briggs v Lunt [No 2] [2010] WASCA 195
Case: [2010] WASCA 195
Decision Date: 20 AUGUST 2010

CaseChat Overview and Summary

The Briggs v Lunt [No 2] case involved two appellants, Briggs and a corporation, who contested a decision made by an arbitration. Briggs' appeal was unaffected by the application for a stay, whereas the corporation's appeal was contingent upon the outcome of the security for costs application. The legal issues before the court were the timeliness of the application for security for costs and the potential consequences of granting the application, particularly the risk of inconsistent outcomes between the two appeals.

The court considered the substantial costs incurred by the appellants and the highly unsatisfactory situation that could arise if the corporation's appeal was stayed while Briggs' appeal proceeded. The court emphasised the importance of maintaining consistency in the appeals process to avoid disjointed outcomes. The lateness of the application and the potential for different results in the two appeals were critical factors in the court's decision. The court concluded that dismissing the application was the appropriate course of action to avoid these issues.

The court found that the application for security for costs was too late, given that it was made after eight days of the hearing of the arbitration. The court also noted that the delay and the associated risks of inconsistent outcomes between the two appeals warranted dismissal of the application. This decision aligns with the principle established in Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd, where a similar delay in applying for security for costs was deemed inappropriate.

The final order of the court was to dismiss the application for security for costs. This decision ensures that both appeals proceed under consistent conditions, preventing the risk of disjointed outcomes and maintaining fairness in the appeals process.

Orders

Orders of the court

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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

In that case, it was a very late application, an application made after eight days of the hearing of an arbitration. See also Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114, 123 (Waddell J). There is no doubt that the appellants in this case would have incurred substantial costs in the conduct of the appeals to date. In addition, and coupled with this delay, is the highly unsatisfactory situation which could develop if an order for security were made and the corporation's appeal was stayed. That would not prevent Mr Briggs continuing with his appeal and arguing the very grounds that the corporation wishes to advance in its appeal. It would be quite unsatisfactory to have a situation develop where, if security were ordered, the corporation did not provide security. The result would be that its appeal would be stayed, but the Briggs appeal would proceed. If it succeeded and the judgment was set aside, then the reasons for doing so would logically equally apply and justify the setting aside of the judgment against the corporation. It would be highly unsatisfactory if a different coram adopted a different view and produced a different result in relation to the corporation's appeal. In theory, that could occur if the corporation found money and was able to provide security for costs. The potential for the two appeals being separated would create problems, in the same way that problems have developed in the separation of the actions the subject of this appeal and the action instituted by Mr Lunt and heard by a different judge. Thus the lateness of the application and the associated potentially unsatisfactory consequences which might flow lead me to the conclusion that I should dismiss the application. That will be the order of the court.