Lennard & O'Brien v Colvin

[2012] QCA 200

COURT OF APPEAL

MUIR JA

Appeal No 5488 of 2012
DC No 3661 of 2008

PHILLIP LENNARD First Applicant

and

SUSAN MARGARET O'BRIEN Second Applicant

JOHN MAXWELL COLVIN Respondent

BRISBANE

DATE 01/08/2012

ORDER

MUIR JA: On this application, the application for security for costs and other orders by the respondent to the appeal, the applicants for leave to appeal/the respondents to this application, have not appeared. Their names were called at the commencement of the hearing.

I am satisfied for the reasons set out in the outline of submissions of Ms Ahearn who appears for the applicant, that an order for security for costs is appropriate. Apart from anything else, it appears that the respondents to this application may not be able to meet the costs on the proceeding. If they are unsuccessful they also seek to argue a number of matters, one or perhaps two of which may be arguable, but others which appear to have very feint prospects of success at best.

I order that on or before 4 pm on 8 August 2012, the applicants, Phillip Lennard and Susan Margaret O'Brien, provide security for the respondents costs of the application for leave to appeal and the appeal, in the sum of $12,000 in a form acceptable to the Registrar.

I further order that failing the provision of such security in accordance with this order, the appeal stand dismissed with costs without any further order.

I order that the applicants pay the respondents costs of and incidental to this application.

CaseChat Overview and Summary

Phillip Lennard and Susan Margaret O'Brien, the applicants, appealed against a decision of the District Court of Queensland, which was presided over by Judge Callaghan. The respondents, John Maxwell Colvin, were contesting the appeal and sought security for costs, along with other orders. The applicants did not appear for the hearing of the appeal, despite being called at the commencement. The primary legal issue the Court of Appeal had to decide was whether the applicants should be required to provide security for costs in the event they were unsuccessful in their appeal. Additionally, the Court had to consider the prospects of success of the applicants' appeal and its implications for the imposition of security for costs.

The Court of Appeal, presided over by Muir JA, considered the submissions made by Ms Ahearn on behalf of the applicants. The applicants had not appeared for the hearing, despite being called. The Court was satisfied that the imposition of an order for security for costs was appropriate, given that it appeared the applicants might not be able to meet the costs of the proceeding if they were unsuccessful. The Court also noted that some of the arguments presented by the applicants appeared to have very weak prospects of success at best. Consequently, the Court ordered that the applicants provide security for the respondents' costs of the application for leave to appeal and the appeal, in the sum of $12,000, by 4 pm on 8 August 2012. The Court further ordered that if the applicants did not provide such security, the appeal would stand dismissed with costs, without any further order. Additionally, the applicants were ordered to pay the respondents' costs of and incidental to the application.

In conclusion, the Court of Appeal found that it was appropriate to impose an order for security for costs in favour of the respondents. The applicants' failure to appear for the hearing and the weak prospects of success of their appeal contributed to the Court's decision. The applicants were ordered to provide security for costs in the sum of $12,000 and to pay the respondents' costs of and incidental to the application. If the applicants did not comply with these orders, the appeal would be dismissed with costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established