SUPREME COURT OF QUEENSLAND
CITATION:
Commercial & Process Services Australia Pty Ltd & Anor v Craven [2020] QCA 177
PARTIES:
COMMERCIAL & PROCESS SERVICES AUSTRALIA PTY LTD
ACN 151 394 679
(first respondent/first applicant)
WARREN NIGEL RUSS
(second respondent/second applicant)
v
GORDON JAMES CRAVEN
(appellant/respondent)FILE NO/S:
Appeal No 2850 of 2020
DC No 165 of 2017DIVISION:
Court of Appeal
PROCEEDING:
Application for Security for Costs
ORIGINATING COURT:
District Court at Maroochydore – [2020] QDC 12 (Cash QC DCJ)
DELIVERED ON:
25 August 2020
DELIVERED AT:
Brisbane
HEARING DATE:
17 June 2020
JUDGE:
Morrison JA
ORDERS:
1. The appellant provides security for costs for the first and second respondents’ costs of the proceedings in Appeal No 2850 of 2020 in the amount of $10,000 in a form acceptable to the Registrar of the Court within 14 days.
2. The appeal proceedings be stayed pending payment of the security.
3. The costs of this application be reserved.
4. If the security is not paid, the appeal proceedings, including reserved costs, be dismissed and Mr Craven pay the applicant respondents’ costs in connection with the appeal proceedings.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where Mr Craven and his wife occupied a property owned by their daughter – where she had granted a tenancy to her company and that company had granted a subtenancy to Mr and Mrs Craven – where Mr Craven became a bankrupt in 2015 – where the trustee in bankruptcy claimed funds which had been invested in the property – where a Deed of Settlement was entered into between the daughter and the trustee for the sale of the property and division of the proceeds – where a Power of Attorney was also granted to the trustee to take steps to deal with and sell the property – where the trustee’s solicitors engaged Mr Russ to take possession of and secure the property – where in 2016 Mr Craven and his wife commenced a proceeding in the District Court seeking damages for trespass and wrongful eviction arising out of the attendances of Mr Russ on the property – where that proceeding was eventually discontinued after a Settlement Deed was entered into between Mr Craven and his wife, and the trustee – where the trustee was indemnified under the Deed – where in 2017 Mr Craven instituted the present proceedings in the District Court, claiming damages for trespass and unlawful eviction, once again in relation to the attendances of Mr Russ – where Mr Craven made an application for summary judgment and the applicants/respondents applied for security for costs – where the summary judgment application was dismissed, and the application for security for costs was adjourned – where Mr Craven appealed the dismissal of summary judgment – where an application was then brought to have Mr Craven pay security for the costs of the appeal – where orders were made that Mr Craven provide security, and if security was not paid,…
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- Case
- [2020] QCA 177
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal involved whether Mr Craven should be required to provide security for the costs of the appeal and if there were any grounds to stay the appeal proceedings. The Court of Appeal needed to determine whether the primary judge's order for Mr Craven to provide security for costs was appropriate under the relevant rules and whether the appeal had any realistic prospects of success. Additionally, the Court needed to consider Mr Craven's financial status and ability to meet any costs order, as well as the implications of not providing security.
The Court of Appeal found that Mr Craven's prospects of success on appeal were bleak, and there were strong reasons to order security for costs given his financial circumstances. The Court noted that Mr Craven was impecunious and had no prospect of meeting any costs order in the appeal. The primary judge's order for security for costs was based on a proper exercise of discretion, taking into account Mr Craven's history of failing to meet previous costs orders. The Court of Appeal upheld the order for Mr Craven to provide security for costs in the amount of $10,000 and stayed the appeal proceedings pending payment of the security.
ORDERS:
1. The appellant provides security for costs for the first and second respondents’ costs of the proceedings in Appeal No 2850 of 2020 in the amount of $10,000 in a form acceptable to the Registrar of the Court within 14 days.
2. The appeal proceedings be stayed pending payment of the security.
3. The costs of this application be reserved.
4. If the security is not paid, the appeal proceedings, including reserved costs, be dismissed and Mr Craven pay the applicants’ respondents’ costs in connection with the appeal proceedings.
Orders
Orders of the court
1. The appellant provides security for costs for the first and second respondents’ costs of the proceedings in Appeal No 2850 of 2020 in the amount of $10,000 in a form acceptable to the Registrar of the Court within 14 days.
2. The appeal proceedings be stayed pending payment of the security.
3. The costs of this application be reserved.
4. If the security is not paid, the appeal proceedings, including reserved costs, be dismissed and Mr Craven pay the applicant respondents’ costs in connection with the appeal proceedings.
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
It is no bar to the making of an order for security for costs under r 772 of the Uniform Civil Procedure Rules 1999 (Qld) that the respondent is a natural person.[5] In Toms v Fuller[6] this Court said:“There is no comprehensive list of the factors which might be taken into account on an application for security for the costs of an appeal; Natcraft Pty Ltd v Det Norske Veritas & Anor [2002] QCA 241, but where the prospects of success on appeal are “bleak”, and the appellant is without funds, there are powerful reasons for ordering security: Murchie at 530.”[5]Ivory v Telstra Corp Ltd & Anor [2001] QCA 490.[6][2010] QCA 73 at [26].Consideration Mr Craven frankly concedes that he is impecunious, and has no prospect of meeting an order for costs in the appeal. That is not surprising as he did not pay the required security for costs under the order of Philippides JA, and his only source of income consists of Centrelink benefits. Further, there is no question of Mr Craven’s impecuniosity being laid at the feet of the current applicants. Nor is there any question of delay in bringing the current application. Finally, Mr Craven does not contest the propriety of the sum in which the security is sought, namely $10,000. Central to the considerations on this application are the prospects of success on the appeal. That must be judged in light of the nature of the order against which the appeal is brought, namely an interlocutory order for security for costs, based on the exercise of a discretion by the primary judge.Approach of the primary judge After setting out the background to the litigation in the District Court, and some other matters of history, the learned primary judge referred to the principles applicable on the application, drawn largely from Mbuzi v Hall & Anor.[7] During the course of the hearing before me no criticism was levelled at the recitation of the background or the accuracy of the principles referred to.[7][2010] QSC 359 at [67]-[68] and [70]. The primary judge noted that there was no evidence to suggest that Mr Craven had satisfied any of the various orders for security for costs, and also noted that he had failed to pay the costs ordered against him when the summary judgment application was dismissed. These and other matters led his Honour to conclude that Mr Craven would be unable to satisfy any future costs order that might be made in the District Court proceedings. On the hearing before me, Mr Craven accepted that that was a justified finding. His Honour then turned to the prospects of success of the claim in the District Court. His Honour found that the claim did not enjoy great prospects of success, largely because the claim alleging trespass and wrongful eviction was first brought against his trustee in bankruptcy, and after those claims were settled, Mr Craven instituted the current proceedings “pursuing essentially the same claims he settled against the Trustee”. His Honour continued:[8]“There appears to be a strong argument that the defendants were acting on the instructions of the Trustee when they did the things that are said by Mr Craven to be actionable. Even if Mr Craven has a legitimate claim against the defendants, they would be entitled to join the Trustee who in turn would be entitled to rely upon the indemnity given to them by Mr Craven. While there may be room for argument about the scope of the indemnity, I do not consider that Mr Craven’s claim enjoys great prospects of success.”[8]Reasons below at [10].