Mazelow Pty Ltd v MacDonald Earthmoving Co Pty Ltd

[2001] QCA 87

[2001] QCA 87

COURT OF APPEAL

McPHERSON JA
MOYNIHAN J
BYRNE J

Appeal No 10350 OF 2000

MAZELOW PTY LTD  Appellant

(ACN 052 101 229)  (Defendant)

and

MacDONLD EARTHMOVING CO PTY LTD             Respondent

(ACN 009 828 568)  (Plaintiff)

BRISBANE

..DATE 12/03/2001

JUDGMENT

McPHERSON JA:  This is an application to extend the time within which to apply for leave to appeal against a decision of the District Court dismissing an appeal against a decision in the Magistrates Court dismissing an application for security for costs in a civil action in that Court. 

The reason why leave is needed is that the order refusing security is, of course, interlocutory within the meaning of s.118 District Court Act.  The reason why an extension of time is needed is that the application was filed on Monday, 27 November last year, when it should have been filed by the preceding Friday, 24 November.

Although the applicant was advised in writing of the applicable time limits, and was so advised by its solicitor, it was not until the intervening Saturday that it gave instructions to its solicitors to make the application.  It is true that the respondent was informed at once of the applicant's intention to appeal and it acknowledges that it has suffered no prejudice as a result.  The fact is, however, that the delay itself has not been explained.

The proposed appeal impresses me as being about as unpromising as it is possible for an appeal to be.  The character of the proceedings in the Magistrates Court is not described in any detail, but it appears to be an action by the respondent against the applicant for money alleged to be owing for work done.  The amount claimed is not specified, but we were informed from the Bar table that the respondent's claim is for $10,000 and the applicant's counterclaim is for $1,000.

The costs likely to be generated by the applicant in defending that action are estimated at a little less than $7,000 which, it is said, the applicant is at risk of not recovering if it succeeds in its defence, whatever that defence may be, in the action.  One may speculate that the expenditure in pursuing the application so far may now be approaching something of the order of that amount. 

The justification advanced for claiming security for costs is that the respondent is an earthmoving company with a $2 capital and no real property or other identifiable assets.  It is said that it owns no motor vehicles; but in a letter that was written by the respondent to the applicant it calls attention to the fact that it has been in business in Townsville for many years and that it owns three substantial items of earthmoving equipment that are unencumbered or, at any rate, not encumbered to a particular creditor.

It is true that this material does not seem to have been sworn to, but I am by no means persuaded that the law is that it is obligatory upon a plaintiff to establish precisely what its assets are simply because the defendant has applied for security for costs.

On the evidence that we have before us, the applicant's prospects of success on an appeal, if this Court were to permit it to proceed, must rank as very slight indeed.  The order against which leave is sought to appeal is not only interlocutory, but it involved the exercise of a discretion in a matter of practice and procedure as to which appellate Courts are traditionally reluctant to interpose or interfere (see Queensland Trustees Limited v. Faulkner [1964] Qd.R. 154, 166, applying In the will of Gilbert (1946) 46 SRNSW 318. 

The applicant already has two decisions against it, and I see no reason for suspecting that those decisions are incorrect.  In these circumstances it would plainly be wrong to grant an extension of time as sought, for even though the delay involved is slight there does not seem to me to be any good reason for supposing that the proposed appeal has merit.  The application should in my view be dismissed with costs.

...

McPHERSON JA:  The application for leave to appeal is dismissed with costs to be assessed on an indemnity basis.

MOYNIHAN J:  I agree with the order proposed for the reasons given.

BYRNE J:  I agree also.

McPHERSON JA:  The order is as I have stated it. 

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