Loel v Miller

[2017] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

Loel & Anor v Miller & Anor [2017] QCA 203

PARTIES:

JAMES BERESFORD LOEL
(first respondent/first applicant)
PAUL BERNARD MAHAN
(second respondent/second applicant)
v
PETER JOHN FRANCIS MILLER
(first appellant/first respondent)
SUSAN MARY MILLER
(second appellant/second respondent)

FILE NO/S:

Appeal No 13275 of 2016
SC No 989 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Brisbane – [2016] QSC 289 (Flanagan J)

DELIVERED ON:

14 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2017

JUDGE:

Morrison JA

ORDERS:

1.   The appellants are to furnish to the Registrar as security for the respondents’ costs of the appeal, the amount of $10,000 by 4 pm on 20 October 2017, in a form satisfactory to the Registrar.

2.   The respondents’ costs of and incidental to this application are to be their costs in the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the respondent brings an application for security for costs in the appeal – where the appellant brings the appeal having lost at trial – where the court is required to consider a number of factors including prospects of success on appeal and the appellants’ financial status – where the prospects of success on appeal rely on the success of two grounds of appeal – where the appellants concede impecuniosity – where the appellants submit that their impecuniosity is a direct result of the respondents’ conduct – whether an order for security of costs should be made

Land Title Act 1994 (Qld), s 130
Uniform Civil Procedure Rules 1999 (Qld), r 772

Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd & Ors[2003] QCA 552, considered
Miller & Anor v Loel & Anor [2016] QSC 289, considered
Murchie v Big Kart Track Pty Ltd (No 2) [2003] 1 Qd R 528; [2002] QCA 339, applied
Toms v Fuller [2010] QCA 73, applied
Woolworths Ltd v Berhane[2016] QCA 238, considered

COUNSEL:

J M Lavercombe (sol) for the respondents/applicants
The appellants/respondents appeared on their own behalf

SOLICITORS:

Lillas & Loel Lawyers for the respondents/applicants
The appellants/respondents appeared on their own behalf

1. MORRISON JA:  This is an application by the respondents to the appeal for an order that the appellants provide security for the respondents’ costs of and incidental to the appeal.  They seek that $25,300.75 be paid into the Court, and the appeal stayed until that occurs.

2. Rule 772 of the Uniform Civil Procedure Rules 1999 (Qld) confers on this Court a broad discretion to order a party to give security for the costs of an appeal. It relevantly provides:

   “772(1)The Court of Appeal ... may order an appellant to give security, in the form the court considers appropriate, for the prosecution of the appeal without delay and for payment of any costs the Court of Appeal may award to a respondent.”

3. The power under r 772 has been described…