Sissons Property Group Pty Ltd v English Consulting Services Pty Ltd, English & Whatman

[1997] QCA 396

[1997] QCA 396

COURT OF APPEAL

DAVIES JA PINCUS JA WILLIAMS J

Appeal No 8723 of 1997

SISSONS PROPERTY GROUP PTY LTD	Appellant (Defendant)
and
ENGLISH CONSULTING SERVICES PTY LTD	First Respondent (First Plaintiff)
and
CLIFFORD LANCE ENGLISH	Second Respondent (Second Plaintiff)
and
DARRYL WHATMAN	Third Respondent (Third Plaintiff)

BRISBANE
..DATE 06/10/97
061097 T2/RB M/T COA224/97
DAVIES JA: This is an application for leave to appeal
pursuant to section 118 of the District Courts Act against
the decision of a District Court Judge allowing an appeal
from the Magistrates Court and setting aside an order made
in that Court for security for costs of an action in that
Court. The application was made pursuant to section 1335 of
the Corporations Law.

The applicant is the defendant in the action in the Magistrates Court in which the respondents are plaintiffs. In that action the respondents alleged that pursuant to an oral agreement between them and the appellant, the appellant promised, amongst other things, to pay the first respondent, that is the company, $1,200 for each sale of property by a third party or alternatively to pay $1,200 to the second and third respondents for each such sale effected; that 21 such sales were effected and that the appellant owes the first respondent or alternatively the second and third respondents $25,200. These allegations were denied by the appellant who alleged that there was no contract between it and the first respondent and that the second and third respondents were employed by it pursuant to written contracts only.

The first respondent, the Corporate respondent, appears to be unable to meet any costs order which might be made against it if it is unsuccessful in that action. The second respondent was alleged to be at all times a director of the first respondent and authorised to act on its behalf.

061097 T2/RB M/T COA224/97
In the Magistrates Court the first respondent had been
ordered to pay $8.500 by way of security for costs of the
action. On appeal to the District Court, the learned
District Court Judge set aside that order and leave is now
sought to appeal from that order of the District Court

Judge.

No challenge is made by the applicant to the correctness of
the decision of the Full Court in Harpur v. Ariadne
Australia Limited [1984] 2 Qd R 523 or to the principle
stated by
Mr Justice Connolly in that case to be applicable where

there is more than one plaintiff, one of whom is a company.

His Honour said at page 531:

"In such a case, all plaintiffs suing in the same interest and by the same solicitors and counsel, there is but one set of costs. If the defendants have an opponent who is worth powder and shot they have as much as any litigant is fairly entitled to."

His Honour said a little later (at 532):

"The mischief at which the provision is aimed is obvious. An individual who conducts his business affairs by medium of a corporation without assets would otherwise be in a position to expose his opponent to a massive bill of costs without hazarding his own assets. The purpose of an order security is to require him, if not to come out from behind the skirts of the company, at least to bring his own assets into play. If, however, he is already available for whatever he is worth, the object of the legislation is seen to be satisfied."

In this case the learned District Court Judge recognised the
possibility that the first respondent might be unsuccessful,
notwithstanding that the second and third respondents were
061097 T2/RB M/T COA224/97
successful. However, he said the real issue between the
parties would seem to be whether or not there was an oral
contract as alleged by the respondents. In that His Honour
was plainly right and it may well be, and it seems more
likely than not on the pleadings so far to me, that there is
unlikely to be any additional costs incurred in the action
by reason of the fact that the corporate respondent is a
plaintiff as well as the individual respondents. However,
His Honour went on to say that even in the event that the
first respondent was unsuccessful but the other respondents
were successful, an appropriate costs order could be moulded
so that the individual respondents were not able to retain
their full costs against the appellant if the appellant were
left to recover its costs against an impecunious first
respondent. In other words an appropriate costs order would
ensure that the mischief against which the provision is
aimed did not occur.

In my view the decision of the learned District Court Judge, in view of the failure to challenge the principle stated in Harpur v. Ariadne Australia Limited, does not raise any important principle such as would justify the grant of leave to appeal at this Court and I would, therefore, refuse the application.

PINCUS JA: I agree. It is true, as is contended on behalf of the applicant, that there are differences between this case and Harpur v. Ariadne Australia Limited [1984] 2 Qd R 523 and the primary judge, His Honour Judge McGill, recognised that that was so. Nevertheless, it does not 061097 T2/RB M/T COA224/97

appear to me that the present case raises any such clear question of law as to justify the grant of leave, nor does it appear to me that the case is one in which the decision below should be set aside as obviously wrong.

I agree with the order proposed by the presiding judge.

WILLIAMS J: I agree.

DAVIES JA: The application is refused with costs.

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