Couchman-Frame v Harvey

[2017] QCA 15

[2017] QCA 15

COURT OF APPEAL

McMURDO JA

Appeal No 12523 of 2016
DC No 11135 of 2015

LYNDON COUCHMAN-FRAME  Respondent/Applicant

v

BARRY HARVEY  Applicant/Respondent

BRISBANE

WEDNESDAY, 22 FEBRUARY 2017

JUDGMENT

PHILIP McMURDO JA: This is an application for security for costs by the respondent to the proceeding in this Court in which the applicant seeks leave to appeal under s 118(3) of the District Court Act 1967. The judgment for which leave is sought is an interlocutory judgment of the District Court, and not one involving a claim to property, but rather a claim for a monetary sum. The applicant for leave to appeal is without legal representation. He opposes the application for security. The order against which the appeal is proposed to be brought was the striking out of the statement of claim on the basis that it disclosed no cause of action, and that it was otherwise filed in terms which did not at all comply with the procedural rules.
To the extent which is appropriate on an application for security for costs, in this Court, I have considered the apparent prospects of success in the appeal which I would describe as relatively poor.  There is no particular challenge to the reasons for judgment, and the statement of claim the subject of the judgment appears to have been clearly in breach of the procedural rules and one which was susceptible to being struck out.  The apparent prospects of success are a relevant consideration, but not the only consideration for this application.  It was forcefully argued by the proposed appellant that as a natural person he should not be ordered to provide security.  That consideration is relevant but it is not so critical for an appellate proceeding as it is for a proceeding at first instance, the reason being that the appellant has already had his day in court and seeks to challenge the outcome.

The proposed appellant told me something of his business and financial affairs, although he frankly said that he did not wish to go into detail because he believes that the respondent to the proposed appeal is closely associated with his former wife and is in some way using this application as a means to fish out information about his financial affairs.  What is relevant is that the appellant says that he would be able to provide security in an amount of $10,000 if that is ordered.  What is also apparent is that he has no asset, at least which can be readily identified and accessed, by which that amount could be recovered, absent security, in the event that the appeal is dismissed and he is ordered to pay the costs.  For example, he told me that he has no land in his own name.

It appears that his business is conducted through a trust.  There is then a real risk that the respondent to the appeal if successful would be unable to recover her costs.  This is not a case where the appeal would be stifled by an order for the provision of security.

Security was sought in an amount of $20,000, but having read the reasons for judgment it seems to me that the issues in the appeal are relatively few, and a more appropriate sum is $10,000 as I indicated in the course of argument.  The order will be that the appellant provide security for costs of the appeal in the sum of $10,000 in a form to be approved by the registrar, and such security be provided within 28 days of today, and that until the security is given neither party shall take a further step in the proceeding without the leave of the Court of Appeal.  It will be further ordered that the applicant for leave to appeal pay the respondent’s cost of this application to be assessed.