SUPREME COURT OF QUEENSLAND
CITATION:
Pearson v ING Bank (Australia) Ltd [2023] QSC 86
PARTIES:
MARK ANDREW PEARSON
(plaintiff)
v
ING BANK (AUSTRALIA) LIMITEDACN 000 893 292
(defendant)FILE NO:
BS No 14095 of 2022
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED ON:
5 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
24 March 2023; further written submissions of the defendant filed 3 April 2023; further written submissions of the plaintiff filed 12 April 2023
JUDGE:
Cooper J
ORDERS:
1. The plaintiff provide security for the defendant’s costs of these proceedings from 20 February 2023 in the amount of $164,354.10.
2. The security be paid into court, or provided in a form acceptable to the Registrar, within 21 days of the making of these orders.
3. The proceeding be stayed until the plaintiff provides the security in accordance with paragraphs 1 and 2 of these orders.
4. The plaintiff pay the defendant’s costs of and incidental to the application for security for costs to be assessed on the standard basis if not agreed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – JUSTICE OF CASE – where the plaintiff claims damages from the defendant arising out of a loan agreement to refinance a residential unit – where the plaintiff defaulted under the loan agreement and the unit was sold by the mortgagee in possession – where the plaintiff’s claims relate to breach of contract, unconscionable conduct, and personal injury – where the pleading of the plaintiff’s claim suffers from numerous deficiencies – where the limitation periods have passed – where the defendant has applied for security for costs against the plaintiff – whether the plaintiff is impecunious and would be unable to pay an adverse costs order if his claims are unsuccessful – whether the plaintiff’s claims have poor prospects of success – whether an order for security for costs would operate to stifle the proceedings – whether the justice of the case requires the making of a security for costs order
Australian Securities and Investments Commission Act 2001 (Cth), s 12CA(1), s 12CB, s 12DB(1), s 12DB(1)(i), s 12GF(2)
Corporations Act 2001 (Cth), s 912A
Limitation of Actions Act 1974 (Qld), s 10, s 11, s 31, s 38
Uniform Civil Procedure Rules 1999 (Qld), r 11, r 670, r 671, r 672Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 453, cited
Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, cited
Bhagat v Murphy [2000] NSWSC 892, cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14, cited
Commonwealth Bank of Australia v Doggett [2014] VSC 423, considered
Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11, cited
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR…
Keep reading for free
Create a free CaseChat account to read Pearson v ING Bank (Australia) Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] QSC 86
- Decision Date
CaseChat Overview and Summary
The primary legal issues in the case were whether Mr Pearson was impecunious and unable to pay an adverse costs order if his claims were unsuccessful, whether his claims had poor prospects of success, and whether an order for security for costs would operate to stifle the proceedings. The court also considered whether the justice of the case required the making of a security for costs order. The court found that Mr Pearson's claims had very limited prospects of success, substantially diminishing the force of the stifling effect of an order for the provision of security as a factor weighing against the making of such an order.
The court examined the evidence and submissions to determine whether Mr Pearson was impecunious and unable to pay an adverse costs order. It found that Mr Pearson's claims had numerous deficiencies, including limitations periods having passed. The court also considered whether the proceeding involved a matter of public importance, which would have required clarification of the law for the benefit of a wider group than Mr Pearson. The court concluded that the proceeding was not an appropriate vehicle for the determination of those issues. The court further found that the defendant had not delayed in bringing the application for security for costs and that the plaintiff's conduct of the proceeding did not warrant an order for security for costs.
The court ordered that Mr Pearson provide security for the defendant's costs of the proceedings in the amount of $164,354.10, to be paid into court or provided in a form acceptable to the Registrar within 21 days of the making of these orders. The proceeding was stayed until the plaintiff provided the security in accordance with the orders. The plaintiff was also ordered to pay the defendant's costs of and incidental to the application for security for costs to be assessed on the standard basis if not agreed.
Orders
Orders of the court
1. The plaintiff provide security for the defendant’s costs of these proceedings from 20 February 2023 in the amount of $164,354.10.
2. The security be paid into court, or provided in a form acceptable to the Registrar, within 21 days of the making of these orders.
3. The proceeding be stayed until the plaintiff provides the security in accordance with paragraphs 1 and 2 of these orders.
4. The plaintiff pay the defendant’s costs of and incidental to the application for security for costs to be assessed on the standard basis if not agreed.
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.