Foxgold Pty Ltd v Paterson - [2005] SASC 376

Supreme Court of South Australia
(Miscellaneous Appeal)
FOXGOLD PTY LTD v PATERSON
Judgment of The Honourable Acting Chief Justice Perry (ex tempore)
22 September 2005
PROCEDURE - COSTS - SECURITY FOR COSTS
The appellant was without means, all of her money having been applied towards payment of the District Court judgments from which she had appealed - consideration of the question whether her impecuniosity amounted to special circumstances within the meaning of SCR r 95.13b so as to justify the making of an order for security for costs - application granted.
SCR r 95.13b, referred to.
Fletcher and Ors v Federal Commissioner of Taxation (1992) 110 ALR 233; Chapman v Luminis Pty Ltd Federal Court, Tamberlin J, 24 April 2002, judgment No [2002] FCA 496; Archer Pty Ltd v Woodhead Australia Pty Ltd Supreme Court of South Australia, Lander J, 29 March 1995, judgment No S5020; Citicorp Australia Ltd v Cirillo (2003) 228 LSJS 132; Kennedy v McGeechan [1978] 1 NSWLR 314, considered.

FOXGOLD PTY LTD v PATERSON
[2005] SASC 376
Civil

PERRY ACJ. (ex tempore) The appellant, Gail Lorraine Paterson, has appealed to this Court against two judgments entered against her following a trial in the District Court.
As to the first judgment, the trial judge ordered that judgment be entered against the appellant in favour of the respondent, who was the plaintiff in the proceedings, for $210,350.35. That judgment was pronounced on 30 March 2005. The trial judge reserved questions of interest and costs.
In a separate judgment delivered on 29 June 2005 the trial judge held that a trust arose in favour of the respondent from the proceeds of sale of a house which had been owned by the appellant, to the extent of the amount which he had earlier found due to the respondent.
The notice of appeal was filed in this Court on 13 July 2005. Mr Milazzo for the respondent conceded that there was no question of the appeal being out of time. It appears that the judgment under appeal, that is the first of the judgments, was not sealed at the time, and that the questions of interest and costs were still at that stage outstanding, as was, for that matter, the issue of the trust.
The moneys derived from the sale of the house were held in a solicitor’s trust account. In view of the second of the judgments delivered by the trial judge, those moneys have now been paid out of the solicitor’s trust account to or for the benefit of the respondent. There is, however, a substantial amount of costs still due, being the costs of the District Court proceedings which the trial judge held were not to be paid out of the moneys held on trust.
The respondent now applies for security for costs of the appeal. The application is based essentially upon the impecuniosity of the appellant, and the fact that there is already a substantial amount of costs owing with respect to…

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 Foxgold Pty Ltd v Paterson

Details

AGLC: Foxgold Pty Ltd v Paterson [2005] SASC 376
Case: [2005] SASC 376
Decision Date: 22 September 2005

CaseChat Overview and Summary

In Foxgold Pty Ltd v Paterson, the appellant, who was facing financial hardship, sought an appeal from District Court judgments against her. The primary concern of the court was whether the appellant's lack of means constituted special circumstances, as defined by SCR r 95.13b, to warrant an order for security for costs. The appellant had exhausted her financial resources in paying the District Court judgments, leaving her without any means to fund the appeal. This situation brought to the fore the question of whether her impecuniosity was sufficient to meet the threshold for special circumstances, thus justifying a security for costs order.

The legal issue at hand was the interpretation and application of SCR r 95.13b, specifically whether the appellant's financial destitution qualified as special circumstances. The court needed to determine if the appellant's situation was exceptional enough to warrant a departure from the usual rule that security for costs is not granted. This required a nuanced understanding of what constitutes 'special circumstances' and how they relate to the appellant's financial position.

Upon examining the appellant's financial status, the court found that her impecuniosity did indeed amount to special circumstances. The court recognised that the appellant's lack of financial resources and the significant outlay towards the District Court judgments presented a compelling case for special consideration. Therefore, the court granted the application for security for costs, acknowledging the appellant's exceptional financial predicament. This decision was pivotal in ensuring that the appellant could proceed with her appeal without the immediate burden of financial constraints.

Orders