James & Baker v Staples

[1995] QCA 575

[1995] QCA 575

COURT OF APPEAL

FITZGERALD P
PINCUS JA

DOWSETT J

Appeal No 107 of 1995

PETER JAMES and

NOELA MAY BAKER	Appellants (Defendants)
and
DOUGLAS REGINALD STAPLES	Respondent (Plaintiff)
BRISBANE ..DATE 25/10/95 THE PRESIDENT: It is unnecessary to dispose of this matter to discuss the circumstances which give rise to this application for security for costs in detail or to recite the events in the chronology since the appeal was instituted early in June this year.
The principal argument on behalf of the applicants for security for costs is that the respondent, the appellants in the appeal, are insolvent or will be insolvent if the appeal is unsuccessful and will be unable to pay the costs which the respondent incurs in the appeal.
The appellants make a number of answers to that, some of more substance than others. For example, it is submitted that they may be able to pay if they are successful in some other litigation but that is not a matter with which the Court can presently be concerned in any substantial way.
The major factors against the application, in my opinion, are the delay which has occurred since the appeal was instituted, the steps which have been taken in the appeal and the circumstance that nothing else remains to be done except the preparation of the appeal record which will not involve the respondent to the appeal in any immediate expense and the hearing of the appeal which, in my opinion, is likely to take less than one day.
In the circumstances, on balance, giving particular weight to the point in which the proceeding has reached before an

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application for security for costs was made, I would refuse the application. I would order that the costs of the application be the appellants' costs in the appeal.

PINCUS JA: I agree.

DOWSETT J: I also agree.

THE PRESIDENT: The orders will be as I have indicated.

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