MNSBJ Pty Ltd v Downing - [2017] QCA 141

SUPREME COURT OF QUEENSLAND

CITATION:

MNSBJ Pty Ltd v Downing [2017] QCA 141

PARTIES:

MNSBJ PTY LTD
ACN 144 779 448
(applicant)
v
ARTHUR CHARLES DOWNING
(respondent)

FILE NO/S:

Appeal No 3317 of 2017
DC No 3903 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane – Unreported, 9 March 2017

DELIVERED ON:

21 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2017

JUDGE:

Morrison JA

ORDERS:

1.   The application to strike out the appeal is refused.

2. The appellant is to file a notice of appeal complying with Rule 747 and Form 64 of the Uniform Civil Procedure Rules 1999 (Qld) within 21 days of today.

3.   The respondent is to provide security for the costs of the appeal, in the sum of $13,800, in a form to the satisfaction of the Registrar, within 60 days of today.

4.   Subject to order No. 2, the proceedings be stayed until payment of security in accordance with order No. 3.

5.   The respondent to the application for security for costs is to pay the applicant’s costs of that application, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where summary judgment was granted to the applicant as plaintiff in the proceedings below – where the respondent appealed that order – where the respondent brought the appeal using an application to appeal form – where the applicant contends that the appeal should have been brought by way of a notice of appeal – where the applicant contends that the application for leave to appeal fails to articulate grounds of appeal – where the applicant submits that the failure to articulate grounds of appeal is vexatious, frivolous and an abuse of process – whether errors when constituting the appeal and failure to articulate grounds of appeal triggers a discretion to dismiss the appeal under r 371 of the Uniform Civil Procedure Rules – whether the appeal should be dismissed

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the applicant alternatively applies for security for costs – where the respondent was unsuccessful in the District Court – where the respondent concedes financial difficulties – where an order for security of costs should be made

District Court of Queensland Act 1967 (Qld), s 118
Uniform Civil Procedure Rules 1999 (Qld), r 371, r 746, r 772

von Risefer v Permanent Trustee Co Ltd [2005] 1 Qd R 681; [2005] QCA 109, considered
Robertson v Hollings & Ors[2009] QCA 303, considered

COUNSEL:

J C Faulkner for the applicant
No appearance for the respondent

SOLICITORS:

Mathews Hunt Legal for the applicant
The respondent appeared on his own behalf

MORRISON JA: This is an application by the first respondent to the appeal to have the appeal struck out on the ground that it has been improperly brought, and is vexatious, frivolous and an abuse of…

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 MNSBJ Pty Ltd v Downing

Details

AGLC: MNSBJ Pty Ltd v Downing [2017] QCA 141
Case: [2017] QCA 141
Decision Date: 21 June 2017

CaseChat Overview and Summary

In the case of MNSBJ Pty Ltd v Downing, the applicant, MNSBJ Pty Ltd, sought summary judgment in the District Court of Queensland against the respondent, Mr Downing, which was granted. The respondent appealed this decision, but the applicant argued that the appeal was improperly brought and that the application for leave to appeal failed to articulate the grounds of appeal. The applicant further contended that the failure to articulate grounds of appeal was vexatious, frivolous, and an abuse of process. The court was required to decide whether the errors in constituting the appeal and the failure to articulate grounds of appeal triggered the court's discretion to dismiss the appeal under Rule 371 of the Uniform Civil Procedure Rules. Additionally, the applicant applied for security for costs on the basis of the respondent's financial difficulties and unsuccessful position in the District Court.

The court considered the procedural errors in the appeal and the failure to articulate grounds of appeal. It determined that while there were procedural errors, the application for leave to appeal, despite its shortcomings, was not so devoid of merit as to be vexatious, frivolous, or an abuse of process. Consequently, the court refused to strike out the appeal but ordered that the respondent must file a notice of appeal complying with the relevant rules and forms within 21 days. The court also addressed the applicant's application for security for costs. Given the respondent's financial difficulties and the unsuccessful position in the District Court, the court ordered the respondent to provide security for the costs of the appeal in the sum of $13,800 within 60 days. The proceedings were to be stayed until payment of security, and the respondent was ordered to pay the applicant's costs of the security application on the standard basis.

The court's decision entailed a refusal to strike out the appeal despite the procedural errors and the lack of articulated grounds of appeal. Instead, the court mandated that the respondent must rectify the procedural defects by filing a compliant notice of appeal. Additionally, the court granted the applicant's application for security for costs, reflecting the respondent's financial circumstances and the unsuccessful position in the lower court. The proceedings were to be stayed pending the payment of the specified security, and the respondent was ordered to bear the costs of the security application.

Orders

Orders of the court

1. The application to strike out the appeal is refused.

2. The appellant is to file a notice of appeal complying with Rule 747 and Form 64 of the Uniform Civil Procedure Rules 1999 (Qld) within 21 days of today.

3. The respondent is to provide security for the costs of the appeal, in the sum of $13,800, in a form to the satisfaction of the Registrar, within 60 days of today.

4. Subject to order No. 2, the proceedings be stayed until payment of security in accordance with order No. 3.

5. The respondent to the application for security for costs is to pay the applicant’s costs of that application, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	MNSBJ Pty Ltd v Downing [2017] QCA 141
PARTIES:	MNSBJ PTY LTD ACN 144 779 448 (applicant) v ARTHUR CHARLES DOWNING (respondent)
FILE NO/S:	Appeal No 3317 of 2017 DC No 3903 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	District Court at Brisbane – Unreported, 9 March 2017
DELIVERED ON:	21 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2017
JUDGE:	Morrison JA
ORDERS:	1. The application to strike out the appeal is refused. *2. The appellant is to file a notice of appeal complying with Rule 747 and Form 64 of the Uniform Civil Procedure Rules* 1999 (Qld) within 21 days of today. 3. The respondent is to provide security for the costs of the appeal, in the sum of $13,800, in a form to the satisfaction of the Registrar, within 60 days of today. 4. Subject to order No. 2, the proceedings be stayed until payment of security in accordance with order No. 3. 5. The respondent to the application for security for costs is to pay the applicant’s costs of that application, to be assessed on the standard basis.**
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where summary judgment was granted to the applicant as plaintiff in the proceedings below – where the respondent appealed that order – where the respondent brought the appeal using an application to appeal form – where the applicant contends that the appeal should have been brought by way of a notice of appeal – where the applicant contends that the application for leave to appeal fails to articulate grounds of appeal – where the applicant submits that the failure to articulate grounds of appeal is vexatious, frivolous and an abuse of process – whether errors when constituting the appeal and failure to articulate grounds of appeal triggers a discretion to dismiss the appeal under r 371 of the Uniform Civil Procedure Rules – whether the appeal should be dismissed APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the applicant alternatively applies for security for costs – where the respondent was unsuccessful in the District Court – where the respondent concedes financial difficulties – where an order for security of costs should be made District Court of Queensland Act 1967 (Qld), s 118 Uniform Civil Procedure Rules 1999 (Qld), r 371, r 746, r 772 von Risefer v Permanent Trustee Co Ltd [2005] 1 Qd R 681; [2005] QCA 109, considered Robertson v Hollings & Ors[2009] QCA 303, considered
COUNSEL:	J C Faulkner for the applicant No appearance for the respondent
SOLICITORS:	Mathews Hunt Legal for the applicant The respondent appeared on his own behalf