Robson v Robson

Case [2008] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

Robson v Robson & Anor [2008] QCA 36

PARTIES:

GARY FRANCIS ROBSON
(plaintiff/respondent)
v
CHARLES WILLIAM ROBSON
(first defendant/appellant)
SANDRA LEIGH ROBSON
(second defendant/appellant)

FILE NO/S:

Appeal No 9477 of 2007
SC No 10177 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2008

JUDGES:

Keane and Muir JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The appeal is dismissed

2. The defendants to pay the plaintiff's costs to be assessed on the standard basis

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – where the defendant seeks an order for security for costs under r 671(c) – where the plaintiff mis-stated his address on the claim document as being care of his solicitors – whether there is reason to believe that the plaintiff's mis-statement of address was done without an intention to deceive

PROCEDURE – COSTS – SECURITY FOR COSTS – where the defendant seeks an order for security for costs under r 671(h) – where the plaintiff has limited assets within Australia – where an order for security will not stifle the pursuit of the plaintiff's claim – whether the "justice of the case" enlivens the court's power to grant the order for security for costs

Uniform Civil Procedure Rules 1999 (Qld), r 670, r 671(c),
r 671(h), r 672


Bell Wholesale Co Ltd v Gates Export Corporation (1984)
2 FCR 1; [1984] FCA 34, cited
Boucaut Bay Co Ltd (In Liquidation) v Commonwealth (1927) 40 CLR 98; [1927] HCA 58, distinguished
Chellew v Brown [1923] 2 KB 844, followed
Cherry v Read, unreported, Full Court of the Federal Court of Australia, No 68 of 1996, 21 November 1996, distinguished
Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523, cited
Power & Ors v Hamond [2006] VSCA 25; VSCA No 5134 of 2004, 22 February 2006, distinguished

Shannon v Australia & New Zealand Banking Group Limited (No 2) [1994] 2 Qd R 563, distinguished
Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609, cited

COUNSEL:

A J H Morris QC, with V G Brennan, for the appellants
R J Douglas SC, with D P de Jersey, for the respondent

SOLICITORS:

Russell and Company for the appellants
Hopgood Ganim Lawyers for the respondent

  1. KEANE JA: 

    On 22 November 2004 the plaintiff commenced proceedings against the defendants seeking orders for the transfer to him of shares in a company alleged to be held by the defendants on trust for the plaintiff.  A defence was filed on


    16 December 2004 and the action has since proceeded through the interlocutory steps towards a trial.  The defendants raised the question of the provision by the plaintiff of security for their costs by letter dated 17 February 2005.  The defendants' approach was promptly…

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AGLC
Robson v Robson [2008] QCA 36
Case
[2008] QCA 36
Decision Date

CaseChat Overview and Summary

In the case of Robson v Robson, the dispute arose between the parties over a claim for security for costs made by the defendant. The plaintiff had misstated his address on the claim document, providing it as being care of his solicitors. The defendant sought an order for security for costs under rule 671(c) of the relevant procedural rules, contending that there was reason to believe that the misstatement was done without an intention to deceive. Additionally, the defendant sought an order under rule 671(h), arguing that the plaintiff's limited assets within Australia meant that an order for security would not stifle the pursuit of the plaintiff's claim, and that the "justice of the case" supported granting the order.

The court was required to determine whether the misstatement of the plaintiff's address was done without an intention to deceive, which would justify an order for security under rule 671(c). The court also needed to assess whether the plaintiff's limited assets within Australia and the potential impact on the pursuit of the claim justified an order for security under rule 671(h). Furthermore, the court had to consider whether the "justice of the case" warranted the granting of such an order.

The court found that there was no evidence to support the notion that the plaintiff's misstatement of his address was done without an intention to deceive. Consequently, the court dismissed the defendant's application under rule 671(c). Regarding rule 671(h), the court determined that while the plaintiff's limited assets within Australia might justify an order for security, the "justice of the case" did not support granting such an order. The court concluded that the defendants' appeal was without merit.

The court dismissed the appeal and ordered the defendants to pay the plaintiff's costs to be assessed on the standard basis. This outcome ensures that the plaintiff is not unduly burdened by the defendants' unsuccessful application for security for costs, while also affirming the importance of the "justice of the case" in determining whether such orders are appropriate.

Orders

Orders of the court

1. The appeal is dismissed

2. The defendants to pay the plaintiff's costs to be assessed on the standard basis

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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