Mark Anthony Moroney v David Michael Stimpson - [2023] QCA 113

[2023] QCA 113

COURT OF APPEAL

MULLINS P

Appeal No 3568 of 2023
SC No 13828 of 2022

MARK ANTHONY MORONEY Appellant

DAVID MICHAEL STIMPSON AND First Respondents
TERRY GRANT VAN DER VELDE
AS TRUSTEE UNDER INSTRUMENT
NUMBER 717249920

BTS (QLD) PTY LTD
ACN 100 818 951
(IN LIQUIDATION) Second Respondent

AUSTRALIAN AFFORDABLE PROPERTY Third Respondent

SOLUTIONS PTY LTD
ACN 162 502 598

ELAINE WILSON Fourth Respondent

4 GUNN STREET SDA PROPERTY'S PTY LTD Fifth Respondent
ACN 652 684 421

BRISBANE

TUESDAY, 30 MAY 2023

JUDGMENT

MULLINS P: These are the orders that I am making today.
1.The appellant’s application for an adjournment of the application for security for costs filed on 3 May 2023 is refused.
2.Subject to the provision of the security referred to in paragraph 4, direct that the application for extension of time to appeal against the order made by Burns J on 8 December 2022 be set down for hearing as a preliminary application in advance of any appeal hearing.
3.Direct that no appeal record be prepared and that each party identify to the Registrar the documents from the primary proceeding and the affidavits filed in this proceeding on which the parties intend to rely on the hearing of the application for extension of time.
4.The appellant give security for costs of the application for extension of time in the sum of $20,000 within 28 days of the date of this order by payment into Court of the said sum or in such other form as the registrar of the court permits.
5.The application for extension of time to appeal be stayed so far as it concerns steps to be taken by the appellant until the security has been given as required by this order, or further order.
6.Today’s costs of the application for security for costs are reserved.
7.The application for security for costs is otherwise adjourned to a date to be fixed.
I will, in these reasons, refer to the parties by their designation in the proceeding in the Court of Appeal. When the application for security for costs came on for hearing today, Mr Moroney, the appellant, appeared by telephone and sought an adjournment as he had sought legal advice from Mr James Loel last Friday.
Mr Loel has not been in a position to give Mr Moroney advice as he is yet to be provided with all the documents that are relevant to Mr Moroney’s proceeding in this Court and in the primary proceeding.
The first respondents, Mr Stimpson and Mr van der Velde – who are the trustees of the appellant’s bankrupt estate – oppose the adjournment on the basis that this is the second time that the application for security for costs is before the Court; and that the first respondents are prejudiced in respect of incurring costs by the further deferral of the application for security for costs.
In view of the history of this proceeding in this Court to date, it is a good development that Mr Moroney is seeking legal advice, but that is not a reason to defer hearing the application for security for costs, which has an inevitable outcome in view of the appellant’s bankruptcy and the nature of his claim. That is why I have refused the application for the adjournment.
The first respondents, in addition to being the appellant’s trustees in bankruptcy, were also the trustees of real property at Logan Village in their capacity as trustees of the 133 Tahiti Avenue Trust. That real property was sold by the first respondents and that sale was settled on 25 May 2023.
The first respondents obtained a consent order before Burns J on 8 December 2022, in proceeding number 13828 of 2022, that required Mr Moroney to vacate and deliver to the first respondents vacant possession of the property, which it appears he did on 1 February 2023.
Mr Moroney now wishes to appeal that order. He filed an application in this Court on 22 March 2023 that sought orders to: “…cease and desist all removal, sale of property –” and an injunction to remove all directions arising from the orders dated 25 November 2022. The consent order made by Burns J on 25 November 2022 was merely to adjourn the first respondents’ originating application.
It is apparent from Mr Moroney’s affidavits and submissions filed in this Court, that it is the consent order of 8 December 2022 that is the focus of his application. Mr Moroney was out of time for appealing against the order made on 8 December 2022 when he filed his application on 22 March 2023. He requires an extension of time to appeal.
Mr Moroney was legally represented on 8 December 2022 and was present in Court on that date, when the consent order was made. He makes allegations in his affidavits against his solicitor and suggests he consented to the order under duress. On any view, it will be very difficult for Mr Moroney to succeed in any appeal against the consent order which he complied with by vacating the Logan Village property.
The first respondents filed their application for security for costs on the appeal on 3 May 2023 and filed extensive material in support of that application. Because of the difficulties that will need to be addressed by Mr Moroney in successfully appealing against a consent order, the extension application should be listed for hearing to reduce the costs, in the first instance, that will be expended by the first respondents in opposing Mr Moroney’s application; and by Mr Moroney in seeking to obtain the extension.
Mr Moroney is bankrupt and has not attempted to respond to the affidavits filed on behalf of the first respondents that show he is without assets. Mr Moroney’s response is directed more at complaining about the actions of the solicitor, who acted for him before Burns J on 25 November and 8 December 2022, and in attacking the circumstances that led to the original debt that resulted in his bankruptcy and the actions of the first respondents and the solicitors acting for them. As Mr Moroney’s prospects of successfully applying for an extension of time to appeal against the consent order made on 8 December 2022 are slim, when viewed objectively, and he remains bankrupt, it is appropriate to order security for costs in a staged basis and limit the security that is ordered in the first instance to the application for the extension of time to appeal.
If the application for extension of time to appeal is successful, the first respondents can then consider seeking further security for costs for the subsequent stages of Mr Moroney’s appeal. In addition to making orders today for security for costs and for facilitating the hearing of the application for extension of time to appeal, it is also appropriate to adjourn the application for security for costs in case the first respondents seek to pursue further security at a subsequent stage of this proceeding.
The first respondents sought their costs of the application for security for costs. Mr Moroney opposed making the order for costs in the first respondents, favour, on the basis that he was yet to seek legal advice. It seems to me that Mr Moroney should be given an opportunity to seek the legal advice in relation to his matter. By reserving the costs, there is nothing lost on the part of the first respondents, and the reservation of costs gives Mr Moroney the opportunity to put further submissions in relation to the costs of the application for security for costs after he has obtained legal advice. That is why I made the order which I did, reserving today’s costs of the application for security for costs. Now, was there anything about the orders that I announced at the beginning that either party wished to raise?
MR KEANE: Not from us, your Honour.
MULLINS P: No. Well, the registry will be able to issue the sealed order after my Associate has endorsed the file. So, Mr Moroney, you better tell Mr Loel what happened today.
APPELLANT: I will. Thank you.
MULLINS P: All right. And you will get a copy of this order in due course, hopefully by the end of the week, so that you can pursue getting your $20,000 together.
APPELLANT: No problems at all.
MULLINS P: All right. We will adjourn. Thank you.
APPELLANT: Thank you very much.