Schokman v Hogg - [2003] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

Schokman & Anor v Hogg [2003] QCA 28

PARTIES:

VINCE SCHOKMAN
CAROL SCHOKMAN
(applicants/appellants)
v
EARLE RAYMOND HOGG
(respondent)

FILE NO/S:

Appeal No 4111 of 2002
SC No 2834 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

10 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2003

JUDGES:

Davies and Williams JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY - LACK OF MEANS - where trial judge refused application for security for costs in an arbitration - where respondent impecunious - where respondent had a real interest in the outcome of the proceedings - whether respondent's impoverishment is a basis for an order for security

Cowell v Taylor (1885) 31 ChD 34, considered
Coyle v Cassimatis [1994] 2 QdR 262, considered

Harpur v Ariadne Australia Ltd [1984] 2 QdR 523, considered

Pacific Acceptance Corporation Ltd v Forsyth (trading as Flack and Flack) (No 2) [1967] 2 NSWR 402, considered

COUNSEL:

B D O'Donnell QC, with T Matthews, for the appellants
K E Downes for the respondent

SOLICITORS:

Dibbs Barker Gosling for the appellants
Clayton Utz for the respondent

DAVIES JA: This is an appeal from a discretionary decision refusing an application by the respondents in that application, the respondents who are also respondents in an arbitration for security for their costs against an impecunious claimant.

It is common ground that the principles applicable to an application for security for costs of trial applied to that application and that the principles with respect to an appeal against such a decision apply to this appeal.

The respondent to this appeal is a builder. He has claimed in an arbitration sums of money said to be due for work done by him under a building contract dated 5 July 1999 with the appellant for the construction of the Mandalay Aged Care Facility. The contract sum was over $3.6 million. There is an alternative claim upon a quantum meruit. The respondent's primary claim is for over $800,000 and the alternative claim is for over $1.1 million. There is a defence and counter-claim by the appellant but there is nothing to indicate, and it was not argued, that the respondent's claim is unarguable.
The arbitration proceeded for some time and adjourned but is likely to resume again soon. It had not commenced, I think, when the application was heard by the learned primary judge.

It is undisputed that the respondent is now insolvent. On 21

February 2002 he entered into a deed of arrangement with a trustee for his creditors. Pursuant to it he undertook to diligently proceed with the subject proceedings and to attempt to recover monies from another company; and he agreed that, to the extent that he recovered money in either respect he would pay to…

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 Schokman v Hogg 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: [2003] QCA 28
Decision Date: 10 February 2003

CaseChat Overview and Summary

In the case of Schokman v Hogg, the primary issue at hand was the refusal of an application for security for costs in an arbitration proceeding. The appellant, Schokman, sought to have the respondent, Hogg, provide security for costs. The respondent was described as impecunious, meaning they were without financial resources, and had a genuine interest in the outcome of the proceedings. The dispute centred on whether the respondent's lack of means constituted a valid basis for the court to order security for costs. This case was adjudicated in the court of appeal.

The legal issues that needed to be addressed included the principles surrounding the granting of security for costs in arbitration, particularly in cases where the respondent is impoverished. The court was tasked with interpreting relevant legal precedents such as Cowell v Taylor, Coyle v Cassimatis, Harpur v Ariadne Australia Ltd, and Pacific Acceptance Corporation Ltd v Forsyth. These cases provided context for understanding how courts have previously handled similar situations. The court needed to balance the respondent's right to pursue their case against the appellant's right to protect their financial interests.

The court of appeal carefully examined the principles established by the cited precedents. It concluded that the respondent's impoverishment alone was not sufficient grounds for ordering security for costs. The court emphasised that while the respondent's financial situation was indeed dire, it did not automatically warrant an order for security. The respondent's genuine interest in the proceedings was acknowledged, but the court found that it did not override the appellant's right to protection against potential financial loss. Therefore, the appeal was dismissed, upholding the trial judge's decision not to require security for costs.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Schokman & Anor v Hogg [2003] QCA 28
PARTIES:	VINCE SCHOKMAN CAROL SCHOKMAN (applicants/appellants) v EARLE RAYMOND HOGG (respondent)
FILE NO/S:	Appeal No 4111 of 2002 SC No 2834 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	10 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2003
JUDGES:	Davies and Williams JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY - LACK OF MEANS - where trial judge refused application for security for costs in an arbitration - where respondent impecunious - where respondent had a real interest in the outcome of the proceedings - whether respondent's impoverishment is a basis for an order for security Cowell v Taylor (1885) 31 ChD 34, considered Coyle v Cassimatis [1994] 2 QdR 262, considered Harpur v Ariadne Australia Ltd [1984] 2 QdR 523, considered Pacific Acceptance Corporation Ltd v Forsyth (trading as Flack and Flack) (No 2) [1967] 2 NSWR 402, considered
COUNSEL:	B D O'Donnell QC, with T Matthews, for the appellants K E Downes for the respondent
SOLICITORS:	Dibbs Barker Gosling for the appellants Clayton Utz for the respondent