LPD Holdings Pty Ltd v Russells - [2022] QSC 48

SUPREME COURT OF QUEENSLAND

CITATION:

LPD Holdings Pty Ltd & Anor v Russells & Anor [2022] QSC 48

PARTIES:

LPD HOLDINGS (AUST) PTY LTD ACN 060 214 511

(First Plaintiff)
and

MAYSON ASSOCIATES LIMITED

(Second Plaintiff)

v

RUSSELLS (A FIRM)
(First Defendant)
and

STEPHEN CHARLES RUSSELL

(Second Defendant)

FILE NO/S:

7571 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland

DELIVERED ON:

6 April 2022

DELIVERED AT:

Cairns

HEARING DATE:

18 March 2022 at Brisbane

JUDGE:

Henry J

ORDER:

1.   Application granted.

2.   The plaintiffs will provide further security for the defendants’ costs of the proceeding up to and including the first day of the trial in a total amount of $200,000 to be secured by:

(a)   payment into court, or

(b) provision of a bank guarantee in a form satisfactory to the Registrar, or

(c)   a combination of (a) and (b), or

(d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,

by no later than 14 April 2022.

3.   The plaintiffs will provide further security for the defendants’ costs of the proceeding beyond day one of the trial in a total amount of $147,000 to be secured by:

(a)       payment into court, or

(b)       provision of a bank guarantee in a form satisfactory to the Registrar, or

(c)        a combination of (a) and (b), or

(d)       payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,

by no later than seven days prior to the listed commencement of the trial.

4.   The plaintiffs pay the costs of and incidental to this application, to be assessed.

5.   The plaintiffs pay the defendants’ costs thrown away by reason of the adjournment of this application from 24 February 2022 to 18 March 2022.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – POWER TO ORDER – where the applicants are a solicitors’ firm and its principal – where the applicants acted for the respondents – where the applicants are being sued by the two corporate respondents for alleged negligence, breach of contract and misleading and deceptive conduct in connection with the alleged failure of litigation – whether the respondents are ordinarily residents outside of Australia – whether the court is satisfied there is reason to believe the respondents will be unable to pay the applicants costs if ordered to pay them – whether discretion should be exercised in favour of granting security for costs

Uniform Civil Procedure Rules 1999 (Qld), rr 670 and 671

Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301, cited
De Beers Consolidated Mines Limited v Howe [1906] AC 4485, cited

Equititrust Limited v Tucker [2019] QSC 51 [111], cited

COUNSEL:
G Beacham QC and D Tay for the applicants/defendants

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.

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Details

Case: [2022] QSC 48
Decision Date: 6 April 2022

CaseChat Overview and Summary

The case of LPD Holdings Pty Ltd v Russells involved a dispute between a solicitors' firm and its principal, who were the applicants, and two corporate respondents. The applicants were being sued by the respondents for alleged negligence, breach of contract, and misleading and deceptive conduct in connection with the applicants' failure of litigation. The respondents were non-resident companies, and the applicants sought an order for security for costs. The applicants argued that there was a reason to believe the respondents would be unable to pay their costs if ordered to pay them. The primary legal issue before the court was whether the discretion to order security for costs should be exercised in favour of the applicants. The court considered the nature of the respondents' residency, the applicants' likelihood of success, and the financial standing of the respondents in determining whether the applicants would be unjustly prejudiced if they were not granted security for costs.

The court found that the applicants had established a prima facie case for security for costs. The court was satisfied that there was a reason to believe that the respondents would be unable to pay the applicants' costs if ordered to pay them. The respondents' non-resident status, coupled with the lack of evidence of their financial standing, was sufficient to establish a reason to believe that the applicants would be unjustly prejudiced if they were not granted security for costs. The court also found that the applicants had a good arguable case on the merits of the proceeding, and that the balance of convenience favoured the grant of security for costs. The court determined that the applicants had satisfied the threshold requirements for the grant of security for costs, and that the discretion should be exercised in their favour.

Accordingly, the court granted the application for security for costs and ordered the respondents to provide security for the applicants' costs of the proceeding up to and including the first day of the trial in a total amount of $200,000, and for the proceeding beyond day one of the trial in a total amount of $147,000. The security could be provided by payment into court, provision of a bank guarantee, or payment into the applicants' trust account subject to certain conditions. The respondents were also ordered to pay the applicants' costs of and incidental to the application, as well as the costs thrown away by reason of the adjournment of the application.

Orders

Orders of the court

1. Application granted.

2. The plaintiffs will provide further security for the defendants’ costs of the proceeding up to and including the first day of the trial in a total amount of $200,000 to be secured by:

(a) payment into court, or

(b) provision of a bank guarantee in a form satisfactory to the Registrar, or

(d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,

by no later than 14 April 2022.

3. The plaintiffs will provide further security for the defendants’ costs of the proceeding beyond day one of the trial in a total amount of $147,000 to be secured by:

(a) payment into court, or

(b) provision of a bank guarantee in a form satisfactory to the Registrar, or

(d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,

by no later than seven days prior to the listed commencement of the trial.

4. The plaintiffs pay the costs of and incidental to this application, to be assessed.

5. The plaintiffs pay the defendants’ costs thrown away by reason of the adjournment of this application from 24 February 2022 to 18 March 2022.

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:	LPD Holdings Pty Ltd & Anor v Russells & Anor [2022] QSC 48
PARTIES:	LPD HOLDINGS (AUST) PTY LTD ACN 060 214 511 (First Plaintiff) and MAYSON ASSOCIATES LIMITED (Second Plaintiff) v RUSSELLS (A FIRM) (First Defendant) and STEPHEN CHARLES RUSSELL (Second Defendant)
FILE NO/S:	7571 of 2018
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	6 April 2022
DELIVERED AT:	Cairns
HEARING DATE:	18 March 2022 at Brisbane
JUDGE:	Henry J
ORDER:	1. Application granted. 2. The plaintiffs will provide further security for the defendants’ costs of the proceeding up to and including the first day of the trial in a total amount of $200,000 to be secured by: (a) payment into court, or (b) provision of a bank guarantee in a form satisfactory to the Registrar, or (c) a combination of (a) and (b), or (d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement, by no later than 14 April 2022. 3. The plaintiffs will provide further security for the defendants’ costs of the proceeding beyond day one of the trial in a total amount of $147,000 to be secured by: (a) payment into court, or (b) provision of a bank guarantee in a form satisfactory to the Registrar, or (c) a combination of (a) and (b), or (d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement, by no later than seven days prior to the listed commencement of the trial. 4. The plaintiffs pay the costs of and incidental to this application, to be assessed. 5. The plaintiffs pay the defendants’ costs thrown away by reason of the adjournment of this application from 24 February 2022 to 18 March 2022.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – POWER TO ORDER – where the applicants are a solicitors’ firm and its principal – where the applicants acted for the respondents – where the applicants are being sued by the two corporate respondents for alleged negligence, breach of contract and misleading and deceptive conduct in connection with the alleged failure of litigation – whether the respondents are ordinarily residents outside of Australia – whether the court is satisfied there is reason to believe the respondents will be unable to pay the applicants costs if ordered to pay them – whether discretion should be exercised in favour of granting security for costs Uniform Civil Procedure Rules 1999 (Qld), rr 670 and 671 Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301, cited De Beers Consolidated Mines Limited v Howe [1906] AC 4485, cited Equititrust Limited v Tucker [2019] QSC 51 [111], cited
COUNSEL:	G Beacham QC and D Tay for the applicants/defendants