Chalfen v Courtney - [2020] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

Chalfen v Courtney [2020] QCA 251

PARTIES:

ELEANOR SOPHIE CHALFEN
(respondent/applicant)
v
SIMON CHRISTOPHER COURTNEY
(appellant/respondent)

FILE NO/S:

Appeal No 7938 of 2020
SC No 2178 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 195 (Williams J)

DELIVERED ON:

Date of Orders: 9 November 2020
Date of Publication of Reasons: 13 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2020

JUDGE:

Morrison JA

ORDERS:

Orders delivered: 9 November 2020

1. Application for security for costs refused.

2. No order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the applicant/respondent has applied for an order that the respondent/appellant give security for the costs of the appeal in the sum of $51,500 – where the appeal concerns orders made on 26 June 2020 staying the proceedings permanently – where it is not necessary to embark upon a consideration of the reasons for making those orders, or an assessment of the prospects of success of the appeal – where the difficulty confronting the application for security for costs is that it has been brought very late in the proceedings generally – where the substantial bulk of the costs of the appeal have already been incurred – whether the application should be refused in the exercise of discretion

COUNSEL:

N H Ferrett for the respondent/applicant
The appellant/respondent appeared on his own behalf

SOLICITORS:

HopgoodGanim Lawyers for the respondent/applicant
The appellant/respondent appeared on his own behalf

MORRISON JA: The respondent to this appeal has applied for an order that the appellant give security for the costs of the appeal in the sum of $51,500.
The appeal concerns orders made on 26 June 2020 staying the proceedings permanently. For reasons which will appear, it is not necessary to embark upon a consideration of the reasons for making those orders, or an assessment of the prospects of success of the appeal.
The relevant chronology is set out below.
On 13 July 2020 the appellant informed the respondent’s solicitors of his intention to appeal.
The appeal was commenced on 23 July 2020. On the same day a copy of the notice of appeal was served on the solicitors for the respondent.
On 13 August 2020 the solicitors for the respondent wrote raising the question of security for the costs of the appeal. Security was sought at that time in the sum of $33,000 in respect of “our client’s anticipated costs of defending these proceedings”. That estimate did not include any costs associated with the making of an application for security for costs.
On 19 August 2020 the appeal was listed to be heard on 16 November 2020.
On 20 August 2020 the appellant responded to the letter dated 13 August. He advised that any application would be opposed, and pointed out that the respondent was already in possession of assets which were owned by the appellant, but which were…

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 251
Decision Date: 13 November 2020

CaseChat Overview and Summary

In Chalfen v Courtney, the respondent, Chalfen, applied for an order that the appellant, Courtney, provide security for the costs of the appeal in the amount of $51,500. The appeal stemmed from orders made on 26 June 2020 that permanently stayed the proceedings. The court did not need to delve into the reasons for those orders or evaluate the appeal's success prospects.

The court had to decide whether, given the application's late timing and the substantial costs already incurred, the application for security for costs should be denied in the exercise of judicial discretion. The court considered that the application was brought very late in the proceedings, and a significant portion of the appeal costs had already been incurred, impacting its decision.

The court concluded that the application should be refused. It exercised its discretion, considering the late timing of the application and the costs already incurred. The court did not order either party to pay costs associated with the application.

The orders delivered on 9 November 2020 included a refusal of the application for security for costs and no order regarding costs.

Orders

Orders of the court

Orders delivered: 9 November 2020

1. Application for security for costs refused.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Chalfen v Courtney [2020] QCA 251
PARTIES:	ELEANOR SOPHIE CHALFEN (respondent/applicant) v SIMON CHRISTOPHER COURTNEY (appellant/respondent)
FILE NO/S:	Appeal No 7938 of 2020 SC No 2178 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs
ORIGINATING COURT:	Supreme Court at Brisbane – [2020] QSC 195 (Williams J)
DELIVERED ON:	Date of Orders: 9 November 2020 Date of Publication of Reasons: 13 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2020
JUDGE:	Morrison JA
ORDERS:	Orders delivered: 9 November 2020 1. Application for security for costs refused. 2. No order as to costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the applicant/respondent has applied for an order that the respondent/appellant give security for the costs of the appeal in the sum of $51,500 – where the appeal concerns orders made on 26 June 2020 staying the proceedings permanently – where it is not necessary to embark upon a consideration of the reasons for making those orders, or an assessment of the prospects of success of the appeal – where the difficulty confronting the application for security for costs is that it has been brought very late in the proceedings generally – where the substantial bulk of the costs of the appeal have already been incurred – whether the application should be refused in the exercise of discretion
COUNSEL:	N H Ferrett for the respondent/applicant The appellant/respondent appeared on his own behalf
SOLICITORS:	HopgoodGanim Lawyers for the respondent/applicant The appellant/respondent appeared on his own behalf