Quach v ATM Residential Pty Ltd

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Quach v ATM Residential Pty Ltd

Citation:

[2023] ACTCA 9

Hearing Date:

7 December 2022

DecisionDate:

16 February 2023

Before:

Baker J

Decision:

1.   Within 21 days, Michael Van Thanh Quach deposit the sum of $30,000 into Court as security for the respondent’s costs of the proceeding pursuant to rule 5001 and Division 2.17.8 of the Court Procedure Rules.

2.   That the security referred to in Order 1 be paid in a form as agreed by the Registrar.

3.   These proceedings be stayed until payment into court be made within Order 1 above.

4.   The matter be listed before the Registrar on 16 March 2023 at 2:30pm in the appeal index list.

Catchwords:

APPEAL – APPLICATION – CIVIL – security for costs application – where appellant is unrepresented – where appellant has a significant litigation history – whether there are prospects of success on appeal – failure of applicant for security for costs to comply with directions of the Registrar - whether the justice of the case requires an order for security to be made – appropriate quantum of security for costs

Legislation Cited:

Court Procedure Rules 2006 (ACT), r 230, r 1147, 5302, 5001, 1900, 1901, 1902, 1401, 1450

Judiciary Act 1903 (Cth), s 78B

Supreme Court Act 1993 (ACT), s 37J(1)(k)

Cases Cited:

Attorney-General of Australia v the Queen (1957) 95 CLR 529

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292

Bahr v Nicolay [1987] HCA 32; 163 CLR 490

Faris v Savage [2019] ACTSC 94

Hughes v Janrule Pty Ltd [2011] ACTCA 15; 177 ACTR 1

Re Culleton [2017] HCA 3; 340 ALR 550

Riverside Nursing Cafe Pty Ltd v Minister for Aged Care [2008] FCA [2000] FCA 1054; 63 ALD 122

Lewis v Chief Executive Department of Justice and Community Safety (ACT) [2013] ACTSC 198; 280 FLR 118

Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] HCA 41; 193 CLR 502

Twining v Curtis [2014] ACTCA 19

Quach v ATM Residential Pty Ltd [2022] ACTCA 47

Quach v ATM Residential Pty Ltd [2022] ACTSC 210

Quach v Marks [2020] NSWSC 524

Quach v MLC Limited (No 6) [2021] FCA 271

Quach v MLC Limited [2022] FCA 586

Parties:

Dr Michael Van Thanh Quach (Appellant)

ATM Residential Pty Ltd trading as McGrath North Canberra (Respondent)

Representation:

Counsel

Dr Quach (Appellant)

J Moffett (Respondent)

Solicitors

Self-represented (Appellant)

Thomson Geer Lawyers (Respondent)

File Number:

Decision under appeal:  

ACTCA 42 of 2022

Court:  ACT Supreme Court

Before:  Chief Justice McCallum

Date of Decision:        19 August 2022

Case Title:                   Quach v ATM Residential Pty Ltd [2022] ACTSC 210

BAKER J:

Introduction

  1. This is an application for security for costs by ATM Residential Pty Ltd (“ATM”) against Dr Michael Van Thanh Quach (“the appellant”).

  1. The substantive dispute between the parties arises in proceedings commenced by…

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Details
Case
[2023] ACTCA 9
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an application by ATM Residential Pty Ltd ("ATM") for security for costs against Dr Michael Van Thanh Quach, the appellant. The underlying dispute concerned the appellant's claim that he made the highest offer for a property in 2019, but it was subsequently sold to another party at a lower price. The appellant sought annulment of the sale contract, an order for the contract to be awarded to him, compensatory damages, interest, and costs. ATM argued it was wrongly named as a defendant, as the relevant conduct was attributed to a real estate agent not employed by ATM.

The primary legal issues before the Court were whether the justice of the case required an order for security for costs to be made, and if so, what the appropriate quantum should be. The Court also considered the appellant's challenge to its jurisdiction to grant security for costs, which he argued contravened the separation of judicial and non-judicial powers established in the *Boilermakers' Case*. The Court was required to determine if the appellant's significant litigation history, his unrepresented status, and the prospects of success on appeal warranted an order for security, while also considering the discretionary factors outlined in the Court Procedure Rules 2006 (ACT), including the appellant's means and the potential impact of an order on the progress of the appeal.

The Court reasoned that an order for security for costs on appeal serves to protect a successful litigant from the injustice of contesting a claim for a second time without a probability of recovering costs, and to discourage frivolous appeals. It noted that an appellant's impecuniosity becomes a very relevant factor in such considerations, particularly when judgment has already been awarded against them. The Court also acknowledged that the appellant's argument regarding ATM's alleged contravention of a Registrar's direction in filing its interlocutory application was arguable, but this did not preclude an order for security for costs. The Court found that the appellant's extensive and unsuccessful litigation history, coupled with his lack of financial resources, weighed heavily in favour of making an order for security for costs.

The Court ordered that within 21 days, the appellant must deposit $30,000 into Court as security for the respondent's costs. This security was to be paid in a form agreed by the Registrar. The proceedings were stayed until this payment was made, and the matter was listed before the Registrar for further directions.

Orders

Orders of the court

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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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