Quach v ATM Residential Pty Ltd

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.