Denblaze Pty Ltd v Relebank Pty Ltd & Norfolk Estates Pty Ltd

[1996] QCA 202

[1996] QCA 202

COURT OF APPEAL

FITZGERALD P
McPHERSON JA
WILLIAMS J

Appeal No 3437 of 1996

DENBLAZE PTY LTD
ACN 058 345 752  Applicant (Plaintiff)

and

RELBANK PTY LTD                Respondent (First Defendant)

and

NORFOLK ESTATES PTY LTD       Respondent (Second Defendant)

BRISBANE

..DATE 28/05/96

JUDGMENT

THE PRESIDENT:  In this matter the Court has had the advantage of reading the parties written outlines which have not been supplemented by oral submissions in the Court.

In my opinion it is unnecessary to give detailed reasons for the disposal of this application for leave to appeal under subsection 92.2 of the District Court Act. In my opinion the test laid down by that section is not satisfied and the application should be refused.

McPHERSON JA:  Yes, I agree.   The case is one in which the defendant and respondent to the application for security succeeded in establishing, to the satisfaction of the Judge below, that what has been called the threshold question, was to be decided in favour of the defendant.  By "threshold question" I mean the impecuniosity of the plaintiff.  That left it for him to consider whether there were other factors which should lead him to order security for costs which, in this case, he did.

The suggestion is that he failed to consider the other matters which he ought to have considered leading to that exercise of his discretion.  In fact, however, he specifically mentioned one of them, that is to say, that the plaintiff did not suggest that a default had occurred as to the result of the defendant's breach of contract in payments to third parties.

He did not go on to mention specifically any of the others but added simply that in the exercise of his discretion it seemed to him to be appropriate that security be given.  Such a contracted form of reasoning may not seem wholly satisfactory to the parties; but it does not disclose any defect in logic or reason and due allowance should be made for the fact that it is often the case in the course of a busy Chamber day that the Judge does not descend to great particularity in his explanations of the decision which he is giving. 

It seems to me to be clear that no defect is revealed of a kind which would lead us to give leave to prosecute this appeal in this Court when it is an order of an interlocutory kind effecting the matter of practice or procedure.  I agree with the order proposed by the President.

WILLIAMS J:  I agree with the reasons given by each of the other members of the Court.

THE PRESIDENT:  And I should add that I endorse the remarks made by Mr Justice McPherson in elaboration of the course which the Court proposes to take. 

...

THE PRESIDENT:  The application is dismissed with costs to be taxed.

-----