Karam v Mansukhani - [2006] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION: Karam v Mansukhani & Anor [2006] QCA 349
PARTIES: THAMIR KARAM
(applicant/respondent)
v
DAYAL HASSAM MANSUKHANI
(first respondent/first appellant)
POOJA DAYAL MANSUKHANI
(second respondent/second appellant)
FILE NO: CA No 4624 of 2006
DC No 380 of 2004
DIVISION: Court of Appeal
PROCEEDING: Application for Security for Costs
ORIGINATING
COURT: District Court at Southport
DELIVERED EX
TEMPORE ON: 14 September 2006
DELIVERED AT: Brisbane
HEARING DATE: 14 September 2006
JUDGES: McMurdo P, Jones and Douglas JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: 1. Application for security for costs is granted
2. Appellant Mrs Mansukhani is to give security to the satisfaction of the Registrar of the Court of Appeal in the sum of $7,000 on or before 12 October 2006 for payment of any costs the Court of Appeal may award to the respondent Dr Karam
3. The purported appeal is to be stayed until the security
required is provided
4. The appellant is to pay the respondent's costs of and
incidental to this application
5. If the security is not provided by 12 October 2006, the purported appeal is to be struck out with costs and without further order
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where appellant has several costs orders made against them in District Court – where these costs orders have not been satisfied – where appellant is a citizen of India and has no property or assets in Australia – where appellant has been refused visa for re-entry into Australia – whether security for costs should be awarded and in what amount
Uniform Civil Procedure Rules 1999 (Qld), r 668, r 772
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1,
cited
Emanuel Management Pty Ltd (in liq) v Foster’s Brewing
Group Ltd [2003] QCA 552, cited
Murchie v The Big Kart Track [2003] 1 Qd R 528, cited
Peterson v Rockhampton Permanent Building Society [1988]
2 Qd R 49, cited
COUNSEL: K El-Asswad for the applicant
No appearance for the respondent
SOLICITORS: Ledger Commercial & Property Lawyers for the applicant
No appearance for the respondent

THE PRESIDENT: Justice Douglas will deliver his reasons first.

DOUGLAS J: This is an application for security for costs by obtained by the respondent against the appellant and two other parties.
the respondent to a purported appeal. The purported appeal is
from a decision of the District Court of 1st June 2006

refusing an application pursuant to r 668 of the Uniform Civil

It seems that leave to appeal is required under s 118 of the variety of matters arising out of the action heard in the District Court including the costs of that proceeding to be assessed on the standard basis. Several other costs orders made against her were to be assessed on the indemnity basis. The costs orders followed a decision of that court in September 2005…

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 Karam v Mansukhani

Details

AGLC: Karam v Mansukhani [2006] QCA 349
Case: [2006] QCA 349
Decision Date: 14/09/2006

CaseChat Overview and Summary

In the case of Karam v Mansukhani, the appellant, Karam, sought to appeal against several costs orders made against them in the District Court of Queensland. The primary issue in this appeal was whether the appellant should be required to provide security for costs, given their financial circumstances and lack of assets in Australia. The appellant, an Indian citizen, has been unable to satisfy the previous costs orders and has been refused a visa for re-entry into Australia, leaving them without property or assets within the jurisdiction.

The legal issue before the court was whether the appellant, in their unique financial and personal circumstances, should be required to provide security for costs, and if so, what amount would be appropriate. The court was tasked with balancing the appellant's right to appeal against the respondent's right to be protected from undue financial burden. The court needed to consider the appellant's inability to satisfy the previous costs orders, their lack of assets in Australia, and their visa status, which precluded their ability to re-enter the country and potentially satisfy any future costs orders.

The court granted the application for security for costs, finding that the appellant's circumstances warranted such an order. The court recognised the appellant's financial inability to satisfy the previous costs orders and their lack of assets in Australia. The court further noted the appellant's visa status, which made it highly unlikely that they would be able to re-enter the country to address any future costs orders. As a result, the court determined that it was appropriate to require the appellant to provide security for costs, ensuring that the respondent would not be unduly burdened by potential future costs if the appeal were to be unsuccessful.

Orders

Orders of the court

1. Application for security for costs is granted

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:	Karam v Mansukhani & Anor [2006] QCA 349
PARTIES:	THAMIR KARAM (applicant/respondent) v DAYAL HASSAM MANSUKHANI (first respondent/first appellant) POOJA DAYAL MANSUKHANI (second respondent/second appellant)
FILE NO:	CA No 4624 of 2006 DC No 380 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs
ORIGINATING COURT:	District Court at Southport
DELIVERED EX
TEMPORE ON:	14 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	14 September 2006
JUDGES:	McMurdo P, Jones and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for security for costs is granted
2. Appellant Mrs Mansukhani is to give security to the satisfaction of the Registrar of the Court of Appeal in the sum of $7,000 on or before 12 October 2006 for payment of any costs the Court of Appeal may award to the respondent Dr Karam
3. The purported appeal is to be stayed until the security required is provided
4. The appellant is to pay the respondent's costs of and incidental to this application
5. If the security is not provided by 12 October 2006, the purported appeal is to be struck out with costs and without further order
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where appellant has several costs orders made against them in District Court – where these costs orders have not been satisfied – where appellant is a citizen of India and has no property or assets in Australia – where appellant has been refused visa for re-entry into Australia – whether security for costs should be awarded and in what amount
Uniform Civil Procedure Rules 1999 (Qld), r 668, r 772
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1, cited Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QCA 552, cited Murchie v The Big Kart Track [2003] 1 Qd R 528, cited Peterson v Rockhampton Permanent Building Society [1988] 2 Qd R 49, cited
COUNSEL:	K El-Asswad for the applicant No appearance for the respondent
SOLICITORS:	Ledger Commercial & Property Lawyers for the applicant No appearance for the respondent