Conners v Acheron Pty Ltd (No 2) - [1994] QCA 359

IN THE COURT OF APPEAL	[1994] QCA 359
SUPREME COURT OF QUEENSLAND

Appeal No. 247 of 1993.

Brisbane

[Acheron v. Conners & Anor]

BETWEEN:

ACHERON PTY LTD

(Defendant) Appellant

AND:

WILLIAM RICHARD KINGSLEY CONNERS
and ROSEMARY ANNE KENT

(Plaintiffs) Respondents

____________________________________________________________

_____

McPherson J.A.
Pincus J.A.
Ambrose J.

____________________________________________________________

_____

Judgment delivered 16/09/1994

Judgment of the Court
____________________________________________________________

_____

1. Appeal allowed.

2.    Order Nos. 3 and 6 made on 17 December 1993 set aside.
3.   Judgment entered on 24 January 1994 in the sum of $228,269.71 set aside.
4.   Appellant given unconditional leave to defend the respondents' claim in respect of the plant and equipment located at the Metropolitan Hotel at Mackay.
5.   Appellant's costs of this appeal to be appellant's costs in the cause.
6.    Above orders not to be entered for seven days.

____________________________________________________________
_____

CATCHWORDS: PRACTICE - payment into court - security - payment into court as condition for grant of leave to defend - principles to be taken into account when deciding whether to order that security should be provided - appellant given unconditional leave to defend.

Counsel:	Mr P R Dutney Q.C. with him Mr M R O'Donnell for the appellant. Mr D Fraser Q.C. with him Mr M J Burns for the respondent.
Solicitors:	Short Punch & Greatorix for the appellant. Nicol Robinson & Kidd for the respondent.
Date of hearing:	18 August 1994.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 247 of 1993.

Brisbane

[Acheron v. Conners & Anor]

Before	McPherson J.A. Pincus J.A. Ambrose J.
BETWEEN:

ACHERON PTY LTD

(Defendant) Appellant

AND:

WILLIAM RICHARD KINGSLEY CONNERS
and ROSEMARY ANNE KENT

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/09/1994

This appeal is brought against an order identified in
the notice of appeal as having been made on 29 October 1993.
On that date the primary judge orally ordered that, as a
condition of leave to defend a certain action, the appellant
should within 30 days give security to the satisfaction of
the registrar. On 17 December 1993 that order, having been
drawn up in due form, was entered. The appellant contends
that it should not have been required to provide any

security and that it should have had unconditional leave to

defend.

The action was begun by the issue of a specially endorsed writ claiming $276,534.41 in respect of two agreements, both oral. Under the first agreement, according to the pleading, trading stock at the Metropolitan Hotel in Mackay was agreed to be purchased by the appellant from the respondents at a reasonable price; the stock was said to be worth $31,394.41. The second agreement set up was one for the sale by the respondents to the appellant of plant and equipment at the Metropolitan Hotel in Mackay "for fair market value in accordance with a valuation to be carried out by an independent valuer retained by the Defendant". It was alleged that no valuation had been made, but that the…

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: [1994] QCA 359
Decision Date: 16/09/1994

CaseChat Overview and Summary

In the case of Conners v Acheron Pty Ltd (No 2), Acheron Pty Ltd appealed against an order requiring it to provide security as a condition for leave to defend a claim brought by William Kingsley Conners and Rosemary Anne Kent. The Court of Appeal, consisting of McPherson J.A., Pincus J.A., and Ambrose J., reviewed the legal principles surrounding the requirement for security when granting leave to defend. The primary judge had ordered Acheron to provide security as a condition for leave to defend, but the Court of Appeal found that the reasons provided by the primary judge did not justify such an order. The Court held that the primary judge's reasons for requiring security were inadequate and did not align with the established principles governing the imposition of such conditions.

The Court of Appeal found that the primary judge's reasons for ordering security were flawed. Firstly, the possibility that the respondents might lose the benefit of the execution if the judgment was set aside was not a valid reason to require security. Secondly, the appellant's impecuniosity was not a sufficient ground for requiring security if there was a reasonable defence. Lastly, the respondents' dealings with creditors based on the assumption that the judgment would be paid did not justify an order for security. The Court of Appeal concluded that the primary judge's order for security was not supported by the reasons given and was therefore set aside.

The Court of Appeal allowed the appeal, set aside the orders requiring security, and granted Acheron unconditional leave to defend the respondents' claim regarding the plant and equipment at the Metropolitan Hotel in Mackay. The Court also ordered that the costs of the appeal were to be borne by Acheron. These orders were to be entered unless any party submitted a written submission regarding the form of the orders within seven days.

Orders