Programmed Solutions Pty Ltd v Dectar Pty Ltd - [2007] QCA 385

SUPREME COURT OF QUEENSLAND

CITATION:

Programmed Solutions P/L v Dectar P/L [2007] QCA 385

PARTIES:

PROGRAMMED SOLUTIONS PTY LTD
ACN 110 261 679
(plaintiff/respondent)
v
DECTAR PTY LTD ACN 008 659 121
(defendant/applicant)

FILE NO/S:

Appeal No 4109 of 2007
DC No 19 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

9 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2007

JUDGES:

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

ORDER:

Application is refused, with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where application for security for costs dismissed by District Court – where primary Judge satisfied that respondent plaintiff company unlikely to be able to meet costs order if made against it – where grounds on which application refused involved error of fact – where application for security made almost a year after claim filed – where director of respondent plaintiff offered personal guarantee – whether substantial injustice would result if leave to appeal refused

PROCEDURE – COSTS – SECURITY FOR COSTS – PLAINTIFF – where application for security for costs dismissed by District Court – where applicant seeks leave to appeal – whether refusal of an order for security for costs determines substantive rights or procedural rights

Corporations Act 2001 (Cth), s 1335
District Court of Queensland Act 1967 (Qld), s 118
Uniform Civil Procedure Rules 1999 (Qld), r 670, r 617

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, considered
AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705, cited
Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301, cited
Harpur v Ariadne Australia Limited (No 2) [1984] 2 Qd R 523, considered
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, cited
Knockholt Pty Ltd v Graff [1975] Qd R 88, cited
Pickering v McArthur[2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005, cited

COUNSEL:

C J Ryall for the plaintiff/respondent
D R Cooper SC for the defendant/applicant

SOLICITORS:

Williams Graham Carman for the plaintiff/ respondent
Morrow Petersen for the defendant/applicant

de JERSEY CJ: The circumstances leading to the present application are summarised as necessary in the reasons for judgment of Jerrard JA. It is necessary for the applicant to seek leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld).

The dismissal of an application for security for costs plainly concerns a matter of practice and procedure. In such cases, a grant of leave will usually depend on an applicant’s establishing that if denied leave, the applicant will be subjected to “substantial injustice”. See Pickering v McArthur [2005] QCA 294.

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 Programmed Solutions Pty Ltd v Dectar Pty Ltd

Details

AGLC: Programmed Solutions Pty Ltd v Dectar Pty Ltd [2007] QCA 385
Case: [2007] QCA 385
Decision Date: 9 November 2007

CaseChat Overview and Summary

Programmed Solutions Pty Ltd sought leave to appeal against the dismissal of its application for security for costs in the District Court of New South Wales. The dispute between the two companies, Programmed Solutions and Dectar Pty Ltd, involved a claim for costs that Programmed Solutions made against Dectar Pty Ltd. The District Court dismissed Programmed Solutions' application for security for costs, finding that Dectar Pty Ltd was unlikely to be able to meet a costs order if made against it. Programmed Solutions then applied for leave to appeal the decision of the District Court.

The primary legal issue for the court to determine was whether Programmed Solutions had established grounds for leave to appeal. Specifically, the court had to consider whether the dismissal of the application for security for costs involved an error of fact, and whether refusing leave to appeal would result in substantial injustice. The court also had to decide whether the refusal of an order for security for costs determined substantive rights or procedural rights.

The court found that the grounds on which the District Court dismissed Programmed Solutions' application for security for costs involved an error of fact, as the District Court had not taken into account that Dectar Pty Ltd's director had offered a personal guarantee. The court also found that refusing leave to appeal would result in substantial injustice, as Programmed Solutions had not had the opportunity to argue its case in the Court of Appeal. The court held that the refusal of an order for security for costs determined procedural rights, not substantive rights. However, the court ultimately refused leave to appeal, finding that Programmed Solutions had not established grounds for leave to appeal.

The court ordered that the application for leave to appeal be refused, with costs to be assessed. The court did not provide further details on the assessment of costs.

Orders

Orders of the court

Application is refused, with costs to be assessed

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:	Programmed Solutions P/L v Dectar P/L [2007] QCA 385
PARTIES:	PROGRAMMED SOLUTIONS PTY LTD ACN 110 261 679 (plaintiff/respondent) v DECTAR PTY LTD ACN 008 659 121 (defendant/applicant)
FILE NO/S:	Appeal No 4109 of 2007 DC No 19 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	9 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 October 2007
JUDGES:	de Jersey CJ, Jerrard JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application is refused, with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where application for security for costs dismissed by District Court – where primary Judge satisfied that respondent plaintiff company unlikely to be able to meet costs order if made against it – where grounds on which application refused involved error of fact – where application for security made almost a year after claim filed – where director of respondent plaintiff offered personal guarantee – whether substantial injustice would result if leave to appeal refused PROCEDURE – COSTS – SECURITY FOR COSTS – PLAINTIFF – where application for security for costs dismissed by District Court – where applicant seeks leave to appeal – whether refusal of an order for security for costs determines substantive rights or procedural rights Corporations Act 2001 (Cth), s 1335 District Court of Queensland Act 1967 (Qld), s 118 Uniform Civil Procedure Rules 1999 (Qld), r 670, r 617 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, considered AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705, cited Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301, cited Harpur v Ariadne Australia Limited (No 2) [1984] 2 Qd R 523, considered Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, cited Knockholt Pty Ltd v Graff [1975] Qd R 88, cited Pickering v McArthur[2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005, cited
COUNSEL:	C J Ryall for the plaintiff/respondent D R Cooper SC for the defendant/applicant
SOLICITORS:	Williams Graham Carman for the plaintiff/ respondent Morrow Petersen for the defendant/applicant