Molony v ACN 009 697 367 P/L - [2005] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION:

Molony v ACN 009 697 367 P/L [2005] QCA 277

PARTIES:

RAY MOLONY
(plaintiff/appellant/respondent)
v
ACN 009 697 367 PTY LTD (FORMERLY FRED MARSH PTY LTD IN LIQUIDATION ACN 009 697 367)
(defendant/respondent/applicant)

FILE NO/S:

Appeal No 5231 of 2005
SC No 85 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

11 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2005

JUDGES:

McMurdo P, Jerrard JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.    The appellant provide security for the respondent's       costs of the appeal, either in cash or by unconditional       bank guarantee to the satisfaction of the Registrar, in       an amount of $10,000
2.    The sum be provided within 60 days
3.    In the event the security is not provided within the       time ordered the appeal is struck out with costs       without further order
4.    The costs of this application be costs in the appeal

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - SECURITY FOR COSTS - application by respondent for security for costs of the appeal - appellant and a company controlled by him jointly sued respondent in June 2001 – in October 2001 company went into voluntary liquidation – in June 2002 court ordered company give security for respondent's costs of the trial and stayed company’s action until security provided - company failed to provide security - trial of appellant's action took place May 2005 - judgment entered in favour of respondent and appellant ordered to pay half of respondent's costs of the action - subsequent to trial company provided security as ordered in June 2002 - appeal against findings of fact of jury - appellant appears to be impecunious - $17,192 of costs orders in favour of respondent still outstanding - whether application for security for costs should be granted

Natcraft & Anor v Det Norske Veritas & Anor [2002] QCA 241; Appeal No 9550 of 2001, 9 July 2002, applied

COUNSEL:

D J Murphy for the applicant
The respondent appeared on his own behalf

SOLICITORS:

Ebsworth & Ebsworth for the applicant
The respondent appeared on his own behalf

DUTNEY J: This is an application by the respondent to the appeal for security for costs of the appeal. The appellant and a company, International Jockey School Pty Ltd (“IJS”) jointly sued the respondent for damages for misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth). The action commenced in June 2001.

In October 2001 the respondent went into voluntary liquidation. In June 2002 Justice Jones ordered IJS to give security for the respondent's costs of the trial in the amount of $35,000 and stayed IJS's action until the security was provided. IJS did not provide the security. In February 2005 the action was listed for trial. The appellant required…

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.

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Details

Case: [2005] QCA 277
Decision Date: 11 August 2005

CaseChat Overview and Summary

Molony v ACN 009 697 367 P/L is a case involving an appeal against findings of fact by a jury. The appellant and a company he controlled jointly sued the respondent in June 2001. The company subsequently went into liquidation in October 2001. In June 2002, the court ordered the company to provide security for the respondent's costs of the trial and stayed the company's action until such security was provided. The company did not provide the required security, and the trial of the appellant's action proceeded in May 2005. The jury returned a verdict in favour of the respondent, and the appellant was ordered to pay half of the respondent's costs of the action. After the trial, the company provided the security that had been ordered in June 2002. The appellant appealed against the findings of fact of the jury, but it appeared that he was impecunious, and $17,192 of the costs orders in favour of the respondent remained outstanding. The respondent applied for security for the costs of the appeal, and the court had to decide whether this application should be granted.

The legal issues the court had to decide in this case were whether the appellant should provide security for the respondent's costs of the appeal and, if so, in what amount and form. The court had to consider the appellant's financial situation and whether he had the means to pay the outstanding costs of the trial. The court also had to consider the precedents and principles governing security for costs in appeals.

In deciding the application for security for costs, the court considered the principles and precedents governing security for costs in appeals. The court held that the appellant should provide security for the respondent's costs of the appeal in an amount of $10,000. The court ordered that the security be provided either in cash or by unconditional bank guarantee to the satisfaction of the Registrar. The court ordered that the sum be provided within 60 days and that in the event the security is not provided within the time ordered, the appeal is struck out with costs without further order. The court also ordered that the costs of this application be costs in the appeal. The court held that the appellant should provide security for the respondent's costs of the appeal because he appeared to be impecunious, and the outstanding costs of the trial remained unpaid. The court considered that the amount of $10,000 was reasonable and appropriate in the circumstances of the case.

Orders

Orders of the court

1. The appellant provide security for the respondent's costs of the appeal, either in cash or by unconditional bank guarantee to the satisfaction of the Registrar, in an amount of $10,000

2. The sum be provided within 60 days

3. In the event the security is not provided within the time ordered the appeal is struck out with costs without further order

4. The costs of this application be costs in the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Molony v ACN 009 697 367 P/L [2005] QCA 277
PARTIES:	RAY MOLONY (plaintiff/appellant/respondent) v ACN 009 697 367 PTY LTD (FORMERLY FRED MARSH PTY LTD IN LIQUIDATION ACN 009 697 367) (defendant/respondent/applicant)
FILE NO/S:	Appeal No 5231 of 2005 SC No 85 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED EX TEMPORE ON:	11 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	11 August 2005
JUDGES:	McMurdo P, Jerrard JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. The appellant provide security for the respondent's costs of the appeal, either in cash or by unconditional bank guarantee to the satisfaction of the Registrar, in an amount of $10,000 2. The sum be provided within 60 days 3. In the event the security is not provided within the time ordered the appeal is struck out with costs without further order 4. The costs of this application be costs in the appeal
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - SECURITY FOR COSTS - application by respondent for security for costs of the appeal - appellant and a company controlled by him jointly sued respondent in June 2001 – in October 2001 company went into voluntary liquidation – in June 2002 court ordered company give security for respondent's costs of the trial and stayed company’s action until security provided - company failed to provide security - trial of appellant's action took place May 2005 - judgment entered in favour of respondent and appellant ordered to pay half of respondent's costs of the action - subsequent to trial company provided security as ordered in June 2002 - appeal against findings of fact of jury - appellant appears to be impecunious - $17,192 of costs orders in favour of respondent still outstanding - whether application for security for costs should be granted Natcraft & Anor v Det Norske Veritas & Anor [2002] QCA 241; Appeal No 9550 of 2001, 9 July 2002, applied
COUNSEL:	D J Murphy for the applicant The respondent appeared on his own behalf
SOLICITORS:	Ebsworth & Ebsworth for the applicant The respondent appeared on his own behalf