SUPREME COURT OF QUEENSLAND
CITATION:
DGR Global Ltd v P.T. Limited [2025] QCA 122
PARTIES:
DGR GLOBAL LTD
ACN 052 354 837
(appellant)
v
P.T. LIMITED ACN 004 454 666 AS TRUSTEE OF THE ARMOUR ENERGY SECURITY TRUST
(first respondent)
PERPETUAL CORPORATE TRUST LIMITED ACN 000 341 533 AS TRUSTEE FOR THE ARMOUR ENERGY NOTE TRUST
(second respondent)
RICHARD SCOTT TUCKER AND ROBERT WILLIAM HUTSON IN THEIR CAPACITY AS THE FORMER RECEIVERS AND MANAGERS OF ARMOUR ENERGY LIMITED ACN 141 198 414 (IN LIQUIDATION), MCARTHUR OIL AND GAS LIMITED ACN 648 622 404 (IN LIQUIDATION), MCARTHUR NT PTY LTD ACN 649 856 315 (IN LIQUIDATION), ARMOUR ENERGY (SURAT BASIN) PTY LIMITED ACN 607 504 905, ARMOUR ENERGY (VICTORIA) PTY LTD ACN 167 298 240, COERA PTY LTD ACN 636 658 574, HOLLOMAN PETROLEUM PTY LTD ACN 126 728 498 AND CORDILLO ENERGY PTY LTD ACN 636 904 204 (ALL SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
(third respondents)
ADZ ENERGY PTY LTD
ACN 672 466 198
(fourth respondent)
SHUNKANG HOLDING GROUP CO. LIMITED (A COMPANY INCORPORATED IN THE PEOPLES REPUBLIC OF CHINA)
(fifth respondent)
BAKER & MCKENZIE (A FIRM)
(sixth respondent)FILE NO/S:
Appeal No 566 of 2025
SC No 15575 of 2023DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2025] QSC 5 (Hindman J)DELIVERED ON:
1 July 2025
DELIVERED AT:
Brisbane
HEARING DATE:
16 May 2025
JUDGES:
Mullins P and Bond JA and Kelly J
ORDERS:
1. The appeal is allowed.
2. The orders made on 15 January 2025 are set aside.
3. Each of the following applications are dismissed:
a. Amended application filed by the first and second respondents on 10 January 2025;
b. Application filed by the third and fourth respondents on 18 December 2024;
c. Application filed by the fifth respondent on 13 December 2024;
d. Application filed by the sixth respondent on 13 December 2024.
4. The respondents pay the appellant’s costs of the applications referred to in paragraph 3.
5. The respondents pay the appellant’s costs of the appeal.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – PLAINTIFF’S OR APPLICANT’S IMPECUNIOSITY – GENERALLY – where the respondents applied under r 671(a) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) and s 1335 of the Corporations Act 2001 (Cth) (“Corporations Act”) for security for costs – where the primary judge ordered that the appellant, a public company, provide security for costs – where r 671(a) of the UCPR and s 1335 of the Corporations Act impose a precondition for an order of security of costs that there is “reason to believe” that the plaintiff will not be able to pay the defendants’ costs if ordered to pay them – where the objective circumstances must be sufficient to incline the mind toward accepting that the plaintiff will not be able to satisfy a costs order – whether, in…
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- AGLC
- DGR Global Ltd v P.T. Limited [2025] QCA 122
- Case
- [2025] QCA 122
- Decision Date
CaseChat Overview and Summary
The court found that while there was some risk that DGR Global Ltd might not be able to pay the costs, the objective circumstances did not sufficiently incline the mind toward accepting that the company would be unable to satisfy an adverse costs order. The respondents had not discharged their evidentiary burden, and the primary judge's conclusion on the threshold question was affected by error. The court also held that the primary judge erred in reversing the onus of proof, placing it on DGR Global Ltd to demonstrate why security for costs should not be ordered. Moreover, the delay in filing the applications for security for costs was significant and not adequately explained, which warranted the refusal of the respondents’ applications. The principle that an application for security for costs should ordinarily be brought promptly was a key factor in this regard.
Given these findings, the court allowed the appeal, set aside the orders made by the primary judge, and dismissed all the respondents' applications for security for costs. The respondents were ordered to pay DGR Global Ltd's costs for the applications and the appeal. This decision highlights the importance of promptness in applications for security for costs and the necessity for respondents to discharge their evidentiary burdens to successfully seek such orders.
Orders
Orders of the court
1. The appeal is allowed.
2. The orders made on 15 January 2025 are set aside.
3. Each of the following applications are dismissed:
a. Amended application filed by the first and second respondents on 10 January 2025;
b. Application filed by the third and fourth respondents on 18 December 2024;
c. Application filed by the fifth respondent on 13 December 2024;
d. Application filed by the sixth respondent on 13 December 2024.
4. The respondents pay the appellant’s costs of the applications referred to in paragraph 3.
5. The respondents pay the appellant’s costs of the appeal.
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
Having regard to all of evidence, the respondents did not discharge their burdens on these applications. There was some apparent risk apparent that the appellant might not be able to pay the costs, but the objective circumstances, viewed as a whole, were insufficient to incline the mind toward accepting that the appellant would not be able to pay the costs. This conclusion would be sufficient to justify allowing the appeal, setting aside the orders below and substituting orders dismissing the applications. However, in the circumstances of this case it is appropriate also to turn to explain why discretionary considerations also warranted dismissing the applications. Discretionary considerations militated against any order for security for costs The discretionary power to award security for costs, once engaged, is broad and unfettered. However, in the context of the exercise of that discretionary power, there is a well-established guiding principle that an application for security for costs should ordinarily be brought promptly. That principle has been described as “long standing”.[32] A particular reason why delay is an important consideration is because it is ordinarily unjust to permit a defendant who has stood by and allowed work to be performed by a plaintiff to come to court and ask for security after such expense has been incurred.[33] As Mason CJ once observed, one of the vices in a late application for security is that the application “comes at the heel of the hunt”.[34] In James v ANZ Banking Group Ltd,[35] Toohey J found there to be a compelling reason to refuse security by reference to the proximity of the proceeding to trial and the fact that “so much time and costs have been expended, that it would work a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they could not comply with such an order”.[32]KP Cable Investments v MeltglowPty Ltd (1995) 56 FCR 189 at 197.[33]Smail v Burton [1975] VR 776 at 777.[34]Devenish v Jewel Food Stores Pty Ltd (1990) 64 ALJR 533 at 534.[35](1985) 9 FCR 442 at 446. The other particular reason why delay is a relevant consideration is that a delayed application for security for costs can disrupt the efficient case management of a proceeding and jeopardise allocated trial dates leading to a waste of public resources. This consideration has been recognised by the courts for decades, even before the conduct of civil litigation was subject to the overriding obligation of parties to proceed expeditiously as now reflected in r 5 of the UCPR. In Crypta Fuels Pty Ltd v Svelte Corp Pty Ltd (1995) 19 ACSR 68 at 71, Lehane J concluded that there was “first and foremost a proposition accepted in every one of the cases which is that if an application for security for costs is to be made it must be made promptly”.[36] His Honour went on to observe that there “are degrees of promptness and obviously, equally, security for costs being a discretionary matter, there are cases where delay will weigh more heavily with the court than it does in other cases”. His Honour then said:[37]“It is notable, however, that in the cases where, despite delay, an order has been made for the provision of security, there have been present at least one and usually two other factors. One is that the hearing or resumed hearing was not immediately imminent, certainly not as immediately imminent as it is in these proceedings. The other is that there has been some forewarning: usually correspondence concerning the financial standing of those who might benefit from the success of an applicant or plaintiff, and often detailed correspondence foreshadowing an application for security for costs.”[36]19 ACSR 68 at 71.[37]Ibid.