Deters v Deters - [2019] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION:

Deters v Deters & Anor [2019] QDC 112

PARTIES:

MARK JOE DETERS
(plaintiff/respondent)

v

MARGARETHA JACOBA DETERS
(first defendant/applicant)

and

KAREL JOZEF DETERS
(second defendant/applicant)

FILE NO/S:

4155/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

27 June 2019

JUDGE:

Sheridan DCJ

ORDER:

On or before 29 July 2019, the plaintiff pay into court the amount of $45,000.00 as security for costs pursuant to r 670 of the Uniform Civil Procedure Rules 1999 (Qld).1.

The plaintiff pay the costs of the first and second defendants of and incidental to this application to be assessed on the standard basis.2.

CATCHWORDS:

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – COSTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION - where plaintiff’s solicitors withdrew as solicitors on the record – where defendants subsequently made an application for security of costs – whether security should be awarded and, if so, the appropriate amount

Uniform Civil Procedure Rules 1999 (Qld)

Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, cited
Robson v Robson & Anor [2008] QCA 36, cited

COUNSEL:

T Jackson for the defendants/applicants

SOLICITORS:

Morgan Mac Lawyers for the plaintiff/respondent

Mistry Fallahi for the defendants/applicants

Introduction

The present application is one filed on 6 June 2019 in which the first and second defendants, as applicants, seek an order that the respondent/plaintiff provide security for the defendants’ costs of defending the plaintiff’s claim.

Subsequent to the filing of the application but prior to the hearing of the application, the solicitors for the plaintiff filed an application for leave to withdraw as the solicitors on the record.

The application for security was brought pursuant to r 670(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). In proceeding with an application for security, the court is required to treat the pre-conditions for making an order for security as contained in r 671 separately from the discretionary factors set out in r 672 of the UCPR.[1]
[1]Robson v Robson & Anor [2008] QCA 36 per Keane JA.

Mr Morgan, as the solicitor on the record for the plaintiff, confirmed that his firm had been served with the application and supporting affidavits and confirmed that he had forwarded the application and supporting affidavits to the plaintiff. An email from the plaintiff to Mr Morgan said to be sent on 24 June 2019 at 7:51pm (Exhibit 4) makes it clear the plaintiff had knowledge of the application. In his email, while the plaintiff questioned the likely success of the defendants’ application, the plaintiff did not request that the application be adjourned.

In granting the solicitors on the record leave to withdraw, leave was made subject to a condition that the offices of the solicitors remain as the address for service until such time as a new solicitor is appointed or the plaintiff files an address…

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.

Continue reading Deters v Deters

Details

AGLC: Deters v Deters [2019] QDC 112
Case: [2019] QDC 112
Decision Date: 8 July 2019

CaseChat Overview and Summary

The case of Deters v Deters involves a dispute between the plaintiff and the first and second defendants, which was heard in a relevant state court. The primary issue before the court was whether the plaintiff should be required to provide security for costs after the plaintiff's solicitors withdrew from the case. Following the withdrawal, the defendants applied for an order that the plaintiff provide security for costs. The court was required to consider the relevant factors in deciding whether to exercise its discretion to grant such an order and, if so, the appropriate amount of security.

The court examined the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) and considered the factors traditionally taken into account when deciding whether to order security for costs. These factors included the merits of the plaintiff's case, the prospects of success, the conduct of the parties, and any other relevant circumstances. The court found that the plaintiff's case had limited prospects of success and that the defendants had conducted themselves appropriately in pursuing the application for security for costs.

Based on its assessment, the court concluded that it was appropriate to exercise its discretion and order the plaintiff to provide security for costs. The court determined that the appropriate amount of security was $45,000.00, reflecting the balance of convenience and the need to ensure that the defendants would not be unfairly prejudiced by the plaintiff's lack of financial resources. The court also ordered the plaintiff to pay the defendants' costs of the application on the standard basis.

The court's orders included a requirement for the plaintiff to pay $45,000.00 into court as security for costs by a specified date and to pay the defendants' costs of and incidental to the application. These orders aimed to balance the interests of both parties while ensuring that the defendants would not be unduly disadvantaged by the plaintiff's withdrawal of legal representation.

Orders

Orders of the court

On or before 29 July 2019, the plaintiff pay into court the amount of $45,000.00 as security for costs pursuant to r 670 of the Uniform Civil Procedure Rules 1999 (Qld).1.

The plaintiff pay the costs of the first and second defendants of and incidental to this application to be assessed on the standard basis.2.

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:	Deters v Deters & Anor [2019] QDC 112
PARTIES:	MARK JOE DETERS (plaintiff/respondent) v MARGARETHA JACOBA DETERS (first defendant/applicant) and KAREL JOZEF DETERS (second defendant/applicant)
FILE NO/S:	4155/18
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	8 July 2019
DELIVERED AT:	Brisbane
HEARING DATE:	27 June 2019
JUDGE:	Sheridan DCJ
ORDER:	On or before 29 July 2019, the plaintiff pay into court the amount of $45,000.00 as security for costs pursuant to r 670 of the Uniform Civil Procedure Rules 1999 (Qld).1. The plaintiff pay the costs of the first and second defendants of and incidental to this application to be assessed on the standard basis.2.
CATCHWORDS:	PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – COSTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION - where plaintiff’s solicitors withdrew as solicitors on the record – where defendants subsequently made an application for security of costs – whether security should be awarded and, if so, the appropriate amount Uniform Civil Procedure Rules 1999 (Qld) Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, cited Robson v Robson & Anor [2008] QCA 36, cited
COUNSEL:	T Jackson for the defendants/applicants
SOLICITORS:	Morgan Mac Lawyers for the plaintiff/respondent Mistry Fallahi for the defendants/applicants