Quach v ATM Residential Pty Ltd - [2023] ACTCA 9

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

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

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

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.

Keep reading for free

Create a free CaseChat account to read Quach v ATM Residential Pty 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

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