Phoenix Constructions (Qld) Pty Ltd v McCracken - [2011] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

Phoenix Constructions (Qld) Pty Ltd v McCracken [2011] QCA 259

PARTIES:

PHOENIX CONSTRUCTIONS (QLD) PTY LTD
(respondent)
v
JARROD McCRACKEN
(appellant)

FILE NOS:

Appeal No 6056 of 2011
SC No 5615 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs
Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

27 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2011

JUDGES:

Margaret Wilson AJA

ORDER:

Delivered ex tempore on 27 September 2011

In Appeal No 6056 of 2011:

1.          Order that by 12 October 2011, Jarrod McCracken provide security for the costs of the appeal in the amount of $40,000 in a form satisfactory to the Registrar;

2.          Order that the application for delivery of a further outline of submissions on behalf of the appellant be dismissed;

3.          Order that the costs of the application be reserved.

In Appeal No 6056 of 2011:

Order that the application be dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the appellant and the company of which he was the sole director and shareholder (“the company”) entered into a construction management agreement with the respondent for the development of land – where the respondent served a creditor’s statutory demand on the company – where the respondent commenced proceedings – where a judge of the Trial Division gave judgment for the respondent against the appellant for $2,025,212.17 – where the appellant filed a notice of appeal – where the respondent applied for security for costs of the appeal – whether the appeal has prospects of success – where a judge of the Trial Division granted the respondent a freezing order restraining the appellant from disposing of, dealing with or diminishing the value of his shareholding in a number of related companies and restraining the related companies from disposing of their interests in certain lands – where the appellant had not completed and returned to the respondent a statement of his financial position pursuant to r 807 of the Uniform Civil Procedure Rules – whether the appellant should be ordered to provide security for costs

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where the appellant filed a cross-application for a stay of execution pending the appeal – whether a stay should be granted

COUNSEL:

D D Keane for the appellant
D A Savage SC for the respondent

SOLICITORS:

Walsh Halligan Douglas for the appellant
Connolly Suthers Lawyers for the respondent

MARGARET WILSON AJA: On 15 June 2011 Cullinane J gave judgment for Phoenix against Jarrod McCracken in the sum of $2,025,212.17. On 12 July 2011 Mr McCracken filed a notice of appeal. On 1 September 2011 Phoenix filed an application for security for costs of the appeal, ancillary orders and an order directing Mr McCracken to file and serve an outline of argument (or a supplementary outline) compliant…

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: [2011] QCA 259
Decision Date: 27 September 2011

CaseChat Overview and Summary

The case of Phoenix Constructions (Qld) Pty Ltd v McCracken involves a dispute between the appellant, Jarrod McCracken, who was the sole director and shareholder of the company, and the respondent. The parties had entered into a construction management agreement for the development of land. The respondent served a creditor’s statutory demand on the company and subsequently commenced proceedings against McCracken. A judge of the Trial Division ruled in favour of the respondent, awarding damages of $2,025,212.17. McCracken filed a notice of appeal, prompting the respondent to apply for security for the costs of the appeal.

The court was tasked with determining whether the appeal had prospects of success and if McCracken should provide security for the costs of the appeal as requested by the respondent. Additionally, the court had to consider McCracken’s cross-application for a stay of execution pending the appeal. The respondent had also sought a freezing order to prevent McCracken from disposing of or diminishing the value of his shareholding in related companies and to restrain the related companies from disposing of their interests in certain lands. This application was granted by a judge of the Trial Division. McCracken had not completed and returned a statement of his financial position as required by r 807 of the Uniform Civil Procedure Rules.

The court ruled that McCracken should provide security for the costs of the appeal in the amount of $40,000, to be delivered by 12 October 2011. The application for delivery of a further outline of submissions on behalf of McCracken was dismissed, and the costs of the application were reserved. Furthermore, McCracken's cross-application for a stay of execution pending the appeal was dismissed with costs.

Orders

Orders of the court

Delivered ex tempore on 27 September 2011

In Appeal No 6056 of 2011:

1. Order that by 12 October 2011, Jarrod McCracken provide security for the costs of the appeal in the amount of $40,000 in a form satisfactory to the Registrar;

2. Order that the application for delivery of a further outline of submissions on behalf of the appellant be dismissed;

3. Order that the costs of the application be reserved.

In Appeal No 6056 of 2011:

Order that the application be dismissed with costs.

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:	Phoenix Constructions (Qld) Pty Ltd v McCracken [2011] QCA 259
PARTIES:	PHOENIX CONSTRUCTIONS (QLD) PTY LTD (respondent) v JARROD McCRACKEN (appellant)
FILE NOS:	Appeal No 6056 of 2011 SC No 5615 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs Application for Stay of Execution
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEMPORE ON:	27 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2011
JUDGES:	Margaret Wilson AJA
ORDER:	Delivered ex tempore on 27 September 2011 In Appeal No 6056 of 2011: 1. Order that by 12 October 2011, Jarrod McCracken provide security for the costs of the appeal in the amount of $40,000 in a form satisfactory to the Registrar; 2. Order that the application for delivery of a further outline of submissions on behalf of the appellant be dismissed; 3. Order that the costs of the application be reserved. In Appeal No 6056 of 2011: Order that the application be dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the appellant and the company of which he was the sole director and shareholder (“the company”) entered into a construction management agreement with the respondent for the development of land – where the respondent served a creditor’s statutory demand on the company – where the respondent commenced proceedings – where a judge of the Trial Division gave judgment for the respondent against the appellant for $2,025,212.17 – where the appellant filed a notice of appeal – where the respondent applied for security for costs of the appeal – whether the appeal has prospects of success – where a judge of the Trial Division granted the respondent a freezing order restraining the appellant from disposing of, dealing with or diminishing the value of his shareholding in a number of related companies and restraining the related companies from disposing of their interests in certain lands – where the appellant had not completed and returned to the respondent a statement of his financial position pursuant to r 807 of the Uniform Civil Procedure Rules – whether the appellant should be ordered to provide security for costs APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where the appellant filed a cross-application for a stay of execution pending the appeal – whether a stay should be granted
COUNSEL:	D D Keane for the appellant D A Savage SC for the respondent
SOLICITORS:	Walsh Halligan Douglas for the appellant Connolly Suthers Lawyers for the respondent