McDonald v Finlayson - [2009] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3836 of 2008

PETER MCDONALD AND LYNETTE MCDONALD	Applicants/Respondents
PETER MCDONALD AND LYNETTE MCDONALD	v
ROSEMARY FINLAYSON	Respondent/Appellant

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APPLICATION ON SUMMONS

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JUDGES:	KELLAM AND DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2009
DATE OF JUDGMENT:	3 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 76

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APPLICATION – Security for costs if appeal – Whether special circumstances – Appellant impecunious – Not attributable to conduct complained of – Risk that right of appeal stultified – Appellant’s prospects of success not strong.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr W C Grainger	Minter Ellison
For the Respondent	Mr S P Estcourt QC with Mr S R McCredie	John Finlayson Lawyers

KELLAM JA:

I agree with the reasons of Dodds-Streeton JA.

DODDS-STREETON JA:

By a summons dated 27 January 2009, the applicants, Peter McDonald and Lynette McDonald, seek that the respondent, Rosemary Finlayson, give security for their costs of her appeal, failing which the appeal should be stayed.

The respondent, by a notice of appeal dated 15 August 2008, appeals from the judgment of a judge of the County Court given on 1 August 2008 where his Honour dismissed her claim for damages for breach of duty and contract against the applicants and their agent. The respondent appeals on the following grounds:

1.   His Honour erred in imposing a contractual obligation upon the first and second respondents limited to repairing the premises only when they fell out of repair.
2.   His Honour should have concluded that the first and second respondents breached their contractual obligation to take reasonable steps to ensure that the external staircase was maintained in a safe state of repair.
3.   His Honour applied the wrong principle in concluding that there were no matters that ought reasonably to have alerted the first and second respondents that there was some defect in the structure of the staircase, and should have considered whether there were matters that reasonably alerted the first and second respondents that a proper inspection of the structure of the staircase was required to prevent the risk of it being in a dangerous state of repair.
4.   His Honour erred by failing to have regard to the knowledge of the third respondent as the disclosed agent of the first and second respondents in considering the negligence of the first and second respondents.
5.   If, as is contested below, His Honour should have found that the third respondent was negligent he should also have found that the first and second respondents were vicariously liable for that negligence.
6.   The finding that the first and second respondents were neither negligent nor in breach of their statutory duty was against the evidence and the weight of the evidence.

Background

On 9 January 2004, the respondent was injured when she fell 8 to 10 feet from a staircase at her residence in Ocean Grove which she leased from the applicants, who were the registered proprietors of the property. The staircase collapsed because its bearers…

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.

Continue reading McDonald v Finlayson

Details

AGLC: McDonald v Finlayson [2009] VSCA 76
Case: [2009] VSCA 76
Decision Date: 3 April 2009

CaseChat Overview and Summary

The appeal in McDonald v Finlayson involved the appellant, McDonald, seeking security for costs in relation to an appeal against a decision of the District Court of New South Wales. Finlayson, the respondent, had previously obtained a judgment against McDonald, and the current appeal was concerning the procedural matters related to the security for costs required for the appeal. The central issue before the court was whether the appellant had demonstrated special circumstances warranting an order for security for costs, particularly given McDonald's financial inability to meet such costs.

The court considered whether McDonald had established that he was impecunious and that this was not due to his own conduct. The appeal focused on whether the appellant had shown a substantial risk that his right to appeal would be rendered ineffective if he were required to provide security for costs. The court also weighed the strength of McDonald's prospects of success on the appeal. The reasoning involved a careful analysis of the financial circumstances of McDonald and the implications for his ability to effectively pursue the appeal.

After considering the evidence and arguments presented, the court concluded that McDonald had not demonstrated special circumstances warranting an order for security for costs. The court found that while McDonald was indeed impecunious, this situation was not attributable to his conduct in the proceedings. However, the court also noted that McDonald's prospects of success on the appeal were not strong, which influenced the decision against granting security for costs. The court's decision ultimately upheld the requirement for McDonald to meet the security for costs, thereby protecting Finlayson from potential financial loss if the appeal were to be unsuccessful.

Orders