Tarjik Pty Ltd v Queensland Drilling & Mining Pty Ltd

[1996] QCA 147

QUEENSLAND DRILLING & MINING PTY LTD	Respondent (Applicant)
BRISBANE ..DATE 05/02/96
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COURT OF APPEAL	[1996] QCA 147
PINCUS JA DAVIES JA McPHERSON JA
Appeal No 239 of 1995
TARJIK PTY LTD	Appellant (Respondent)
and

JUDGMENT appeal against the Court, seeks orders that the appellant, a corporation, provides security for the respondent's costs of the appeal and that the appeal be stayed until such security is provided. The appeal is from an order refusing summary judgment for a sum of $35,608.56.

The present applicant, who was the respondent to that application, did not dispute its indebtedness to the appellant in that sum. The applicant succeeded in resisting the application for summary judgment substantially on two bases. First, that the entitlement of a presently entitled beneficiary, who was the respondent, against a trustee, that is the applicant, to income of the trust is not a debt.

Secondly, that there was an agreement to postpone its payment. It seems a little curious, at least superficially in any event, that a respondent trustee who admits that the beneficiary is presently entitled to a sum which far exceeds the costs of appeal, should seek security of the cost merely because time for payment of that sum has arguably been postponed by agreement.

In any event, affidavit evidence shows that the applicant, who is in turn a trustee, owned land valued at $250,000, which valuation excludes some recent improvements, on which $180,000 is owed, some shares and options which are sworn to have a value of approximately on two different versions, $200,000 or $300,000, but which cannot be transferred until later this year, a Gold Coast Council bond of $20,000 and

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furniture and equipment of $50,000. The annual return of
the respondent company arguably indicates that these assets
are trust assets, but the respondent has a right of
indemnity out of them and through it, the applicant may be
indemnified in respect of its costs.

Even if the shares are left entirely out of account, though I should add it's unlikely, as the cost of this appeal will be payable in the immediate future, the respondent whose application plainly, in my view, has sufficient assets to meet any costs it may be liable to pay, should it lose its appeal. The application in my view, should therefore be dismissed and it should be dismissed, with costs.

I should correct my reasons to alter my reference to an application for summary judgment for an application to set aside a statutory demand. The other point I should add is that I would grant leave to file and read the affidavit sought to be filed and read this morning.

PINCUS JA: I agree and would only add with respect to reliance upon my decision in Appleglen Pty Ltd v. Mainzeal Corporation Pty Ltd (1988) 79 ALR 634, although certainly justifiable, seems to me to be misplaced. The passage to which Mr Jarrett referred refers to a small applicant trustee company.

The case in question dealt with such a company, that is a company which had no significant assets, legal or equitable.

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050296 D.1 T7/JJD M/T COA96/4

This is not such a case. I mention that in deference to the argument presented by Mr Jarrett and not because I think that the Appleglen case lays down any particularly important principle. I agree with the orders proposed by Mr Justice Davies.

McPHERSON JA: Yes, I agree with the orders proposed and with the reasons that have been given.

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