Smith v Yarwood - [2019] QCA 90

[2019] QCA 90

COURT OF APPEAL

MORRISON JA

Appeal No 3160 of 2019
DC No 5866 of 2018

Morrison JA

JOSEPH WILLIAM SMITH Applicants/Respondents

MIAMI MOTORS PTY LTD
ACN 009 812 266

MICHAEL DERMOTT YARWOOD Respondent/Appellant

BRISBANE

MONDAY, 20 MAY 2019

JUDGMENT

MORRISON JA: The respondents to this appeal apply for an order that the appellant give security for the costs of the appeal. The application is made pursuant to r 772 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”). The amount sought is $57,091.25, based upon a report prepared by a costs assessor, estimating the anticipated costs in defending the appeal up until and including the first day of hearing.

Legal principles

Rule 772(1) of the UCPR provides that this Court “… may order an appellant to give security, in the form the court considers appropriate, for the prosecution of the appeal without delay and for payment of any costs the Court of Appeal may award to a respondent”.

The power to order security for costs is unfettered one, both as to whether to order security, and if so, in what amount. Relevant factors include:[1] (i) that the appellant has had their day in court and lost; (ii) the appellant’s financial position; (iii) the prospects of success on appeal; and (iv) any delay in bringing the application.

[1]Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241; Woolworths Group Ltd v Day [2018] QCA 79 at [7].

Where the prospects of success on appeal are “bleak”, and the appellant is without funds, there are powerful reasons for ordering security.[2]

[2]Murchie v Big Kart Track Pty Ltd (No 2) [2003] 1 Qd R 528 at 530.

Discussion

There is no doubt that the appellant is impecunious. His own material filed on this application deposes to that fact, and he frankly conceded it during the course of submissions. However, his affidavit filed on 9 May 2019 reveals that he is the co-trustee of two family trusts, of which he is a named beneficiary, along with his wife and each of his children. Those trusts hold interests in commercial undertakings but any equity or value in them is not readily realisable.[3] During the course of submissions the appellant conceded that the other trustee was his son and that if he made a timely request of him it was likely that an advance could be made to meet any order for security for costs. Thus, whilst the appellant is presently impecunious, any order for security would not stifle his appeal.

[3]Appellant’s affidavit, para 13.

As to the prospects of success on the appeal, the position cannot be stated with any certainty. The order the subject of the appeal was one for summary judgment. The underlying claim was that the appellant received an amount of $1.65 million from money which was being withheld by the Department of Transport as the consequence of a resumption of land. The claim was that the appellant had not accounted for that…

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.

Continue reading Smith v Yarwood

Details

AGLC: Smith v Yarwood [2019] QCA 90
Case: [2019] QCA 90
Decision Date: 20 MAY 2019

CaseChat Overview and Summary

In this appeal, the respondents, Joseph William Smith and Miami Motors Pty Ltd, seek an order that the appellant, Michael Dermott Yarwood, provide security for the costs of the appeal. The respondents filed the application for security for costs pursuant to rule 772 of the Uniform Civil Procedure Rules 1999 (Qld). The amount sought is $57,091.25, based on a report prepared by a costs assessor. The legal issues the court had to decide were whether the court should order security for costs and, if so, the amount to be ordered. The court considered the appellant's financial position, prospects of success on appeal, and any delay in bringing the application. The court found that the appellant was impecunious, but that there was a possibility that his appeal could succeed. The court ordered security for costs in the amount of $20,000, and that the appeal would be stayed pending compliance with this order. The respondents' costs of the application are to be their costs in the cause.

Orders