Bruder Expedition Pty Ltd v Leigh - [2020] QCA 238

[2020] QCA 238

COURT OF APPEAL

FRASER JA

Appeal No 8773 of 2020
DC No 2380 of 2019

BRUDER EXPEDITION PTY LTD Respondent/Applicant
ACN 603 551 579

TRACY LEIGH Appellant/Respondent

BRISBANE

FRIDAY, 30 OCTOBER 2020

JUDGMENT

FRASER JA: The respondent to an application for leave to appeal applies for security for costs. Rule 772 of the Uniform Civil Procedure Rules empowers the Court of Appeal, or the court that made the decision appealed from, to order an appellant to give security for the prosecution of the appeal. The respondent referred to decisions holding that r 772 is not engaged where, as in this case, leave to appeal is necessary and has not been granted, but that in such cases security may be awarded under the more general provision in r 670(1) of the UCPR: see Chibanda v Chief Executive, Queensland Health [2018] QCA 334 at [6] and the decisions there cited.

Rule 670 empowers the Court to order the plaintiff to give security the Court considers appropriate for the defendant’s costs of a proceeding. That rule applies subject to the provisions of other rules, particularly rr 671 and 672. Rule 671 provides that the Court may order a plaintiff to give security only if the Court is satisfied of one of the eight matters listed, the only relevant matter being that the justice of the case requires the making of the order. Rule 672 sets out discretionary factors to which the Court may have regard. They include the prospects of success or merits of the proceeding, whether an order for security for costs would stifle that proceeding, whether the proceeding involves a matter of public importance, and the costs of the proceeding. It is uncontroversial in this application that r 672 does not comprehensively state the potentially relevant matters.

The respondent and the applicant present opposing arguments about the prospects of success of the proposed appeal. Resolution of this issue requires reference to selected parts of the complex procedural history of the parties’ litigation.

After a jury trial in the District Court judgment was given in favour of the respondent, the plaintiff in the District Court, against the applicant for $350,000. The applicant appealed against that judgment. The appeal was heard and judgment was reserved in May of this year.

In the meantime the respondent had brought proceedings in the District Court to obtain information about the applicant’s assets and to enforce the judgment. That has led to the applicant bringing two further proceedings in this Court. The relevant proceeding is an application for leave to appeal filed on 13 August 2020. A notice of appeal had been filed on 12 August 2020. The notice of appeal challenges an order made by a judge in the District Court on 7 August 2020 dismissing the applicant’s application to set aside an order made by Registrar Lambert on 2 July 2020. Registrar Lambert ordered that by 4.00 pm on Friday 10 July 2020 the applicant – that is, the respondent…

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: [2020] QCA 238
Decision Date: 30 OCTOBER 2020

CaseChat Overview and Summary

In Bruder Expedition Pty Ltd v Leigh, the respondent, Bruder Expedition, sought security for costs from the appellant, Leigh, in relation to an application for leave to appeal and a subsequent appeal. The primary dispute involved the enforcement of a District Court judgment against Leigh for $350,000. Leigh had appealed against the judgment, and Bruder Expedition sought security for costs relating to this appeal. The Court of Appeal was tasked with determining whether security for costs should be granted and, if so, in what amount.

The legal issues before the Court of Appeal included whether Rule 772 of the Uniform Civil Procedure Rules (UCPR) applied to the case, given that leave to appeal had not yet been granted. The Court also needed to consider whether Rule 670(1) of the UCPR, which provides for security for costs in general terms, could be invoked. Furthermore, the Court had to assess the prospects of success of the proposed appeal and weigh various discretionary factors, including Leigh's financial capacity to meet a potential costs order if the appeal failed, and the delay in Bruder Expedition's application for security for costs.

The Court of Appeal held that Rule 772 was not applicable because leave to appeal had not been granted. Instead, Rule 670(1) was the appropriate provision for ordering security for costs. The Court assessed the prospects of success of the appeal and found them to be bleak, as Leigh had already complied with most of the orders in question. The Court also considered Leigh's financial situation, noting her limited means and her inability to raise the full amount of security sought by Bruder Expedition. While Bruder Expedition had delayed in applying for security for costs, the Court found that most of the delay was due to Leigh's actions in progressing the appeal. Balancing these considerations, the Court ordered Leigh to provide security for costs in the amount of $20,000 by a specified date.

Orders