Thomas v Balanced Securities Limited [2011] QCA 258
PARTIES:
DAVID LIONEL THOMAS (appellant) v BALANCED SECURITIES LIMITED ACN 083 514 685 (respondent)
FILE NO/S:
Appeal No 10588 of 2010 DC No 1453 of 2010
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
27 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
22 March 2011
JUDGES:
White JA, Margaret Wilson AJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
Grant leave to the respondent to file its Notice of Contention.1.
Dismiss the appeal.2.
The appellant pay the respondent’s costs assessed on the standard basis.3.
CATCHWORDS:
ESTOPPEL – ESTOPPEL BY JUDGMENT – PARTIES – IDENTITY OF PARTIES – PRIVITY – GENERAL PRINCIPLES – where earlier proceedings against company of which appellant was sole director and secretary – where the primary judge concluded that company was the alter ego of appellant – where appellant participated in earlier proceedings as the guiding mind of company in respect of identical terms in the same instrument company which he sought to re-litigate in guarantee proceedings – whether such conduct amounts to an abuse of process
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where respondent sued appellant on the contract of guarantee to recover costs assessed on indemnity basis against company – whether appellant entitled to a costs statement pursuant to r 705 Uniform Civil Procedure Rules 1999 (Qld) – whether s 335 of the Legal Profession Act 2007 (Qld) applied – nature of the proceedings
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where appellant contended that the primary judge erred in concluding that he had no real prospect of success in defending all or part of the claim – where the primary judge could have declined to grant summary judgment in light of the complexity of the issues – whether any error has been demonstrated in the primary judge granting summary judgment
[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.
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AGLC
Thomas v Balanced Securities Ltd [2011] QCA 258
Case
[2011] QCA 258
Decision Date
CaseChat Overview and Summary
In Thomas v Balanced Securities Ltd, the appellant challenged a decision of the trial judge, who had found that the appellant was estopped from denying the existence of an agreement due to his previous conduct in another proceeding. The appellant had been the sole director and secretary of a company that had been the subject of an earlier proceeding, in which the appellant participated as the guiding mind of the company. The trial judge concluded that the company was the alter ego of the appellant and that the appellant was estopped from re-litigating the identical terms in the same instrument in the guarantee proceedings. The appellant argued that the trial judge erred in concluding that he had no real prospect of success in defending all or part of the claim and that the judge could have declined to grant summary judgment in light of the complexity of the issues. The respondent sought an order for costs on an indemnity basis, arguing that the appellant was not entitled to a costs statement pursuant to r 705 Uniform Civil Procedure Rules 1999 (Qld) and that s 335 of the Legal Profession Act 2007 (Qld) applied due to the nature of the proceedings.
The court held that the appellant had not demonstrated any error in the primary judge's decision that he was estopped from denying the existence of an agreement. The court also held that the primary judge did not err in granting summary judgment, as the appellant had no real prospect of success in defending the claim. The court further held that the respondent was entitled to an order for costs on an indemnity basis, as the appellant was not entitled to a costs statement and s 335 of the Legal Profession Act 2007 (Qld) applied due to the nature of the proceedings.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs assessed on the standard basis. The court granted leave to the respondent to file its Notice of Contention.
Orders
Orders of the court
Grant leave to the respondent to file its Notice of Contention.1.
Dismiss the appeal.2.
The appellant pay the respondent’s costs assessed on the standard basis.3.