Toms v Fuller

Case [2010] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

Toms & Ors v Fuller [2010] QCA 73

PARTIES:

DONALD FULLER
(defendant/appellant/respondent)
v
STEPHEN NORMAN TOMS &
PHILLIP TOYNE &
CHARLES ERNEST BRIGHT &
BRETT HEADING
(plaintiffs/respondents/applicants)

FILE NO/S:

Appeal No 309 of 2010
SC No 3234 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2010

JUDGES:

McMurdo P and Holmes and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appellant to provide security for the respondents’ costs of the appeal in the sum of $17,000, in a form satisfactory to the Registrar, within 28 days from today;

2. 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;

3. If security is provided, the costs of this application to be costs in the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where appellant’s initial and amended pleadings were struck out at first instance – where primary judge ordered appellant obtain leave to file any further pleadings – where respondents then discontinued their action – where appellant sought leave to file a further amended defence and counterclaim – where primary judge refused leave – where appellant impecunious – where appellant’s prospects of success on appeal are slight – whether appellant should be ordered to provide security for costs

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 177, r 304, r 311, r 748, r 772, r 774

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited
Murchie v The Big Kart Track Pty Ltd(No 2) [2003] 1 Qd R 528; [2002] QCA 339, applied
Natcraft P/L & Anor v Det Norske Veritas & Anor[2002] QCA 241, applied
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, cited
Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455; [2000] QCA 292, cited

COUNSEL:

The appellant appeared on his own behalf
K A Barlow for the respondents

SOLICITORS:

The appellant appeared on his own behalf
Mallesons Stephen Jaques for the respondents

  1. McMURDO P:  I agree with Chesterman JA’s reasons for ordering the appellant to provide security for the respondents’ costs of this appeal and with the orders he proposes.

  1. HOLMES JA:  I agree with the reasons of Chesterman JA and the orders he proposes.

  1. CHESTERMAN JA:  The respondents to the appeal have applied for an order that the appellant provide security for their costs of the appeal.  They were the plaintiffs in an action commenced in the Trial Division against the appellant in which each claimed the sum of $200,000…

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AGLC
Toms v Fuller [2010] QCA 73
Case
[2010] QCA 73
Decision Date

CaseChat Overview and Summary

Toms v Fuller is an appeal against the refusal of a primary judge to grant leave to the appellant to file a further amended defence and counterclaim. The appeal was brought by the appellant, Toms, against the respondents, Fuller. The primary judge had previously struck out Toms' initial and amended pleadings, ordered Toms to obtain leave to file any further pleadings, and subsequently, the respondents discontinued their action. Toms sought leave to file a further amended defence and counterclaim, but the primary judge refused the application. Toms is impecunious and the primary judge found that Toms' prospects of success on appeal are slight.

The primary legal issue before the court was whether Toms should be ordered to provide security for costs. The court considered the relevant statutory provisions and case law. The court noted that an order for security for costs is not intended to deter a party from pursuing an appeal. Instead, it is a means of protecting a respondent from the risk of incurring costs if the appeal is unsuccessful. The court considered the relevant factors, including Toms' impecuniousness, the prospects of success on appeal, and the potential for the appeal to be frivolous or vexatious.

The court found that Toms should be ordered to provide security for costs in the sum of $17,000. The court considered Toms' impecuniousness and the primary judge's finding that Toms' prospects of success on appeal are slight. The court held that these factors were sufficient to justify an order for security for costs. The court ordered Toms to provide security for costs within 28 days, or the appeal will be dismissed. If Toms provides security, the costs of the application will be costs in the appeal.

In conclusion, the court ordered Toms to provide security for costs in the sum of $17,000. If Toms does not provide security within 28 days, the appeal will be dismissed, and Toms will be liable for the respondents' costs of the appeal and of the application. If Toms provides security, the costs of the application will be costs in the appeal.

Orders

Orders of the court

1. The appellant to provide security for the respondents’ costs of the appeal in the sum of $17,000, in a form satisfactory to the Registrar, within 28 days from today;

2. 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;

3. If security is provided, the costs of this application to be costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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