Rockett v Moneycorp Securities Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Rockett v Moneycorp Securities P/L & Anor [2008] QCA 142

PARTIES:

LYNETTE JOY ROCKETT
(plaintiff/first respondent)
v
MONEYCORP SECURITIES PTY LTD
ACN 115 414 803
(first defendant/second respondent)
ZORZAN – 003 PTY LTD ACN 107 476 004
(second defendant/applicant)

FILE NO/S:

Appeal No 965 of 2008
SC No 9525 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

5 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2008

JUDGES:

Holmes JA, Mackenzie AJA and Daubney J

ORDER:

1.   Order that unless the applicant, by 4.00 pm on Thursday 12 June 2008 provides security for the costs of the first and second respondents in the amounts and on the terms (other than as to time) set by the orders of Justice Martin, the applicant’s application for an extension of time to appeal be dismissed

2.   The applicant to pay the respondent’s costs of the application for extension of time

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where applicant ordered at trial to provide security for costs to each of the respondents – where respondent declined applicant’s later proposal to extend or alter the orders for security for costs – where applicant did not provide security within the required 21 day period – where applicant sought, on appeal, to have the order set aside or altered – where applicant filed notice of appeal outside of time – whether application for extension of time should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 670, r 674, r 675, r 772

Goodman v Lorenzen[2000] QCA 11

COUNSEL:

J C Faulker for the applicant
J C Bell QC, with A I James, for the first respondent
J W Lee for the second respondent

SOLICITORS:

H W Litigation for the applicant
Ffrench Commercial Lawyers for the first respondent
Gladstones Solicitors for the second respondent

HOLMES JA: The applicant asks the Court, under Rule 675 of the Uniform Civil Procedure Rules 1999 (Qld), to vary orders for security for costs made in the trial division. The applicant owned two units. It was the second defendant in a successful action for specific performance of contracts of sale of those units brought by Ms Rockett, the first respondent here. She had entered into the contracts with Moneycorp Securities Pty Ltd, the second respondent here, as mortgagee exercising power of sale. Moneycorp was first defendant to her action.

At trial the applicant raised a number of defences, contending inter alia, that it had redeemed the mortgages so that Moneycorp had no interest capable of transfer to Ms Rockett, that Moneycorp had acted in bad faith in exercising its power of sale and that Ms Rockett had acted in breach of fiduciary duty.  It wishes to appeal against a number of the learned trial judge's findings in respect of those matters, but having filed the appeal…