Jeffrey Robert McArthur Plaintiff v Mercantile Mutual Life Insurance Company Limited

[2000] QCA 412

[2000] QCA 412

COURT OF APPEAL

de JERSEY CJ
MACKENZIE J
HELMAN J

Appeal No 5793 of 2000

JEFFREY ROBERT McARTHUR             Plaintiff (Appellant)

and

MERCANTILE MUTUAL LIFE INSURANCE COMPANY LIMITED
(ACN 009 657 176)                  Defendant (Respondent)

BRISBANE

..DATE 04/10/2000

JUDGMENT

THE CHIEF JUSTICE:  The applicant which is the respondent to the appeal seeks an order that the appellant provide $3,900.00 by way of security for the costs of the appeal.  The reasonableness of that amount has been established.  So to my mind has the likely inability of the appellant to be able to meet a costs order, if unsuccessful, in the appeal.

The evidence shows that the appellant owns no real property registered in Queensland nor any motor vehicle and that he has not worked since mid-1994.

There is some disclosure of his assets in his solicitor's letter of the 19 July 2000 being 119 AMP shares jointly owned with his wife and a sum of $5,000.00 in a bank account again owned jointly with his wife at the National Australia Bank.

That letter arrived in response to queries from the applicant's solicitors and Mr Morton properly points out that the appellant has not provided himself any sworn material as to his assets.  It may be, as Mr Morton suggested, that the position mentioned in that letter on the 19 July 2000 no longer obtains.

When asked about this Mr North SC for the appellant, in effect, conceded the deficiency in the appellant's presentation in this area and it does seem to me reasonable to infer that the appellant presently lacks the capacity to satisfy this Court that he would, if unsuccessful in the appeal, be able to meet the successful respondent's costs. 

There is an issue arguably whether ordering security for costs in those circumstances is unfair bearing in mind the comparative financial positions of the parties and a possible result that it would lead to the frustration of the appeal.

It seems to me that is not, in this particular case, a sufficient answer to the application for security.  There is authority in this Court that the Court should approach applications for security acknowledging that the matter has reached the stage of appeal and that there has been a full hearing in the primary Court.  In other words that should increase, rather than reduce, the willingness of the Court to make an order where otherwise appropriate.

I would, however, recognising that the points in the appeal appear to be arguable as reflected by the filing of comprehensive submissions for both parties and the imminent readiness of the appeal to be heard, ameliorate the position somewhat from the appellant's point of view, by reducing the amount to be provided by way of security to the sum of $3,000.00 and by not, at least at this stage, prescribing a particular date by which the security must be provided.

I would order that the appellant pay the sum of $3,000.00 into Court or provide security to the value of $3,000.00 to the satisfaction of the Registrar as security for the applicant's costs of the appeal and that pending such payment or provision of security proceedings in the appeal be stayed with the costs of this application to be costs in the appeal.

MACKENZIE J:  I agree.

HELMAN J:  I agree.

THE CHIEF JUSTICE:  Those are the orders.

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