Spoilt Pty Ltd v Ticking Pty Ltd Summary

[2010] QCA 302

COURT OF APPEAL

MUIR JA

Appeal No 7708 of 2010
DC No 506 of 2008

TICKING PTY LTD ACN 117 547 323 ATF First Defendant/First

FOR THE SULZBERGER INVESTMENT TRUST Respondent/First Applicant

and

GRANT ANDREW SULZBERGER Second Defendant/

Second Respondent/

and Second Applicant

SUZANNE ROBERTA BATCHELOR Third Defendant/

Third Respondent/

and Third Applicant

SPOILT PTY LTD (ABN 40 002 670 493) Plaintiff/Appellant/ TRADING AS DISCOUNT BEDDING Respondent

BRISBANE

DATE 28/10/2010

ORDER

MUIR JA: The applicants/respondents apply for security for costs of the appeal in the sum of $25,300. That is made up of the estimated costs of the appeal of $16,000, and the cost of today's application at $9,300. The respondent/appellant takes a pragmatic approach to the application.

Mr Collins, who appears for the respondent, does not oppose the ordering of security, but submits that the costs are excessive for a matter of limited complexity. He takes exception to security being provided for the costs of today's application, particularly in the amount estimated, and makes the point that costs are not intended to provide full indemnity to an applicant.
Mr Wilson, who appears for the applicants, points out that the estimates are provided by a reputable trusts assessor and are also supported by an experienced practitioner. It seems to me to be appropriate to take into account the way in which the respondent has sought to confine the costs of today. I think there is merit also in the submission that this is a matter which comes on appeal from the District Court; is not of particular complexity; and costs are not intended to provide for indemnity.

It does seem to me that the amounts for the costs of today, with great respect to those who have estimated them, are singularly high, having regard to the way in which the matter has been handled. Taking those matters into account it seems to me that the appropriate amount of security should be $16,000.

The orders are: the appellant provides security for the respondents' costs of the appeal in the sum of $16,000 in a form satisfactory to the Registrar within 28 days of today's date. If security is not provided by that time the appeal will stand dismissed without further order, and the appellant is to pay the respondents' costs of the appeal, and of this application, to be assessed on the standard basis. If security is provided, the costs of this application be the party's costs in the appeal.

CaseChat Overview and Summary

In the case of Spoilt Pty Ltd v Ticking Pty Ltd, the Court of Appeal was asked to determine the appropriate amount of security for costs of an appeal. Spoilt Pty Ltd, trading as Discount Bedding, was the plaintiff in the underlying proceeding and was now the appellant in the appeal. The respondents were Ticking Pty Ltd, the Sulzberger Investment Trust, Grant Andrew Sulzberger, and Suzanne Roberta Batchelor. The dispute originated in the District Court and involved claims related to a property transaction. The applicants/respondents sought an order for security for the costs of the appeal, which they estimated to be $25,300. This amount included the estimated costs of the appeal itself and the costs associated with the application for security.

The legal issues before the court involved the appropriate amount of security for costs in an appeal. The court had to consider the complexity of the matter, the manner in which the appeal had been handled, and whether the estimated costs were reasonable and necessary. The court also had to determine whether it was appropriate to include the costs of the application for security within the overall amount of security sought. The appellant argued for a pragmatic approach, while the respondents contended that the costs were excessive and not intended to provide full indemnity.

The Court of Appeal, led by Muir JA, found that while the appellant did not oppose the ordering of security, the estimated costs were excessive. The court took into account the limited complexity of the matter and the way in which the respondent had sought to confine the costs of the appeal. The court noted that costs were not intended to provide full indemnity to an applicant. Considering these factors, the court determined that the appropriate amount of security should be $16,000, excluding the costs of the application for security.

The final orders of the court required the appellant to provide security for the respondents' costs of the appeal in the sum of $16,000 within 28 days. If the security was not provided by the specified date, the appeal would be dismissed without further order, and the appellant would be required to pay the respondents' costs of the appeal and the application. If security was provided, the costs of the application for security would be the party's costs in the appeal.

Spoilt Pty Ltd v Ticking Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established