Maguire v. Leather

[2007] QCA 406

SUPREME COURT OF QUEENSLAND

CITATION:

Maguire v Leather [2007] QCA 406

PARTIES:

JOHN PATRICK MAGUIRE
(plaintiff/respondent)
v
WILLIAM LEATHER
(defendant/applicant)

FILE NO/S:

Appeal No 6056 of 2007
SC No 2570 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

19 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2007

JUDGES:

Jerrard and Muir JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The application for security for costs is dismissed
2. The applicant is to pay the respondent’s costs of the application

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where applicant, who is the respondent to the appeal, applies for security for costs in the sum of $8 000 – where respondent to the application appeals against judgment given in favour of the applicant at first instance – where evidence that respondent is joint owner of a dwelling house – whether security for costs appropriate having regard to amount of costs – whether respondent has prospects of success on appeal – whether lack of evidence about equity of house relevant

Uniform Civil Procedure Rules 1999 (Qld), r 772

COUNSEL:

R C Morton for the applicant
The respondent appeared on his own behalf

SOLICITORS:

McInnes Wilson Lawyers for the applicant
The respondent appeared on his own behalf

MUIR JA:  The applicant, who is the respondent to the appeal, applies for security for costs in the sum of $8000.  The respondent to the application appeals against judgment given in favour of the applicant after a trial in the Supreme Court. 

In the proceedings the respondent claimed damages for negligence against the applicant alleging that the applicant, a solicitor who represented him in the claim for assessment of disability before the General Medical Assessment Tribunal – Psychiatric, had breached his duty of care. 

The learned primary Judge found that the applicant had breached his duty of care, but concluded that the respondent had not shown that the breach of duty was causative of any loss.  In broad terms the negligence found against the respondent was a failure to properly prepare the case to be presented to the Tribunal so as to reduce the risk of evidence adverse to the appellant's case being presented and a failure to take reasonable steps to neutralise any such adverse evidence. 

Relevant to the determination of an application for security for costs under rule 772 of the Uniform Civil Procedure Rules, are the appellant's prospects of success and whether, if unsuccessful on the appeal, the appellant would be able to satisfy an order for costs in favour of the respondent. There is evidence which Mr Morton, who appears for the applicant, accepts that the respondent and his wife own a dwelling house, in fact the dwelling house in which they reside in Ipswich, as joint tenants. Some evidence was given from the bar table concerning the equity in the house, but I do not think it necessary to place any reliance on that and indeed it would be inappropriate to do so.

Mr Morton faced with this evidence, based the application on two grounds. The first was the lack of evidence of the applicant's equity in the dwelling house. Allied with that ground was the submission that the applicant should not be put in the invidious position, should the appeal be unsuccessful, of having to levy execution on a joint interest in a dwelling house.  The other ground was that the respondent's prospects of success on the appeal were demonstrably poor.

In my view, having regard to the amount of security sought, it would be undesirable to require the respondent to provide it.  It is not reasonably to be supposed that the respondent or his wife would let matters get to the stage of having their dwelling house sold over a dispute of eight or so thousand dollars.  That is what the evidence discloses is likely to be the applicant's recoverable costs on the appeal should the applicant be successful.

As for the prospects of success on the appeal, it is not irrelevant to my mind that the respondent, after a trial, obtained a finding of breach of duty against the applicant.  It is true that the learned primary Judge found that no loss flowed from the breach.  His Honour found that the respondent's claim was essentially one for loss of a chance.
Having regard to the reasons of His Honour, which contained extensive discussions of medical opinions,--

RESPONDENT:  Your Honour, may I just interject for one second?

MUIR JA:  No, not for a moment.  Some of which opinions differ, I am not satisfied that the prospects of success on appeal could be rated quite as pessimistically as Mr Morton's submissions would suggest.

The other matter which I wish to mention, is that the lack of evidence about the equity in the house is readily explicable. It is plain from the evidence and from the way in which this matter has been conducted, that the respondent would have been unlikely to have adverted to the relevance of such evidence.  I would dismiss the application. 

JERRARD JA:  I agree with the reasons and order proposed by Justice Muir.  In this matter it is important that the applicant for an order for security for costs accepts now that the respondent, Mr Maguire, has at least some equity in real property in Ipswich, although the applicant disputes that Mr Maguire has any grounds of possible success in the appeal.  As to that I think all that we can say is that he has a finding of negligence in his favour and accordingly must have at least some prospects of succeeding on the argument that should have been found to have caused him some loss.  Accordingly I too agree that the application for security for costs should be dismissed. 

McMURDO J:  I agree with the judgment of Justice Muir, I further agree with the remarks of Justice Jerrard. 

JERRARD JA:  Well, the order is that the application for security for costs is dismissed and that the applicant should pay the respondent's costs of today.  Thank you.

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