Burrawong Investments P/L v Lindsay

[2002] QCA 313

COURT OF APPEAL

McMURDO P

Appeal No 3709 of 2002

BURRAWONG INVESTMENTS PTY LTD
(ACN 000 211 503) Respondent/Plaintiff

and

ALBERT HUGH LINDSAY First Appellant/First Defendant

and

DELMA RUTH LINDSAY Second Appellant/Second Appellant

BRISBANE

..DATE 23/08/2002

ORDER

THE PRESIDENT: This appeal was filed on 23 April 2002. The appellants' legal representatives applied for and were granted leave to withdraw on 1 July 2002. The settled index and record book were not filed within the time provided in the program for progressing the appeal.

The appellants have informed the Registry that the appeal is not proceeding. They have been informed of today's hearing and have not appeared. The respondent has filed an application for an order that the appeal be dismissed for want of prosecution and requesting indemnity costs.

The reason for their request for indemnity costs is because, in affidavit material before this Court which was served on the appellants, the solicitor deposes to a conversation with one of the appellants telling him that the appeal was filed to delay and give him time to try to find the money with his associate Chris Smith to pay the respondent.

In those circumstances, it seems on balance, and in the absence of any other explanation, that this appeal was filed merely for the purposes of delay and such a course is an abuse of process and in those circumstances the respondent is entitled to the indemnity costs he seeks. I order that the appeal be dismissed for want of prosecution and that the appellants pay the respondent's costs of and incidental to the appeal on the indemnity basis.

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CaseChat Overview and Summary

The case of Burrawong Investments P/L v Lindsay involved a dispute between Burrawong Investments P/L, the respondent and plaintiff, and the appellants, Albert Hugh Lindsay and his wife, Delma Ruth Lindsay. The matter was heard in the Queensland Court of Appeal. The primary issue before the Court was whether the appeal filed by the appellants was genuinely intended to be prosecuted or whether it was merely a tactic to delay proceedings and potentially raise funds to settle the underlying debt. The case also addressed the issue of indemnity costs for the respondent due to the appellants' failure to prosecute the appeal.

The Court was required to determine whether the appellants had a bona fide intention to prosecute the appeal or if their actions constituted an abuse of process. The appellants had filed the appeal but subsequently withdrew their legal representatives and failed to file the necessary documentation, leading to the appeal being dismissed for want of prosecution. The respondent sought indemnity costs based on evidence that the appeal was filed with the intention to delay and potentially find funds to settle the debt.

The Court found that the appellants' actions were an abuse of process and ordered that the appeal be dismissed for want of prosecution. The Court also granted the respondent's application for indemnity costs, as there was no other explanation provided by the appellants for their failure to prosecute the appeal. The Court emphasised that filing an appeal merely to delay proceedings is an unacceptable use of the legal process and justified the award of indemnity costs to the respondent.

The Court ordered that the appeal be dismissed for want of prosecution and that the appellants pay the respondent's costs of and incidental to the appeal on the indemnity basis. This decision highlights the Court's commitment to preventing the abuse of legal processes and ensuring that parties use the courts for legitimate purposes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established