West v Secure Funding Pty Ltd - [2020] QCA 296

SUPREME COURT OF QUEENSLAND

CITATION:

West v Secure Funding Pty Ltd [2020] QCA 296

PARTIES:

MICHELE WEST
(applicant)
v
SECURE FUNDING PTY LTD (FORMERLY LIBERTY FUNDING PTY LTD)
ACN 081 982 872
(respondent)

FILE NO/S:

Appeal No 12863 of 2020
DC No 1373 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs
Application for Stay of Execution

ORIGINATING COURT:

District Court at Brisbane – Date of judgment: 21 October 2020 (Burnett DCJ)

DELIVERED EX TEMPORE ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 and 18 December 2020

JUDGE:

Mullins JA

ORDERS:

Application filed 11 December 2020 for security for costs:

1.   On or before 29 January 2021, the applicant must provide security for the respondent’s costs of the application for extension of time to appeal and any appeal in the amount of $25,000.

2.   The security required by order 1 be provided by payment into Court or in such other form as the registrar of the Court permits.

3.   Costs of the application filed on 11 December 2020 are reserved.

Application filed 30 November 2020 for stay:

1.    The application filed 30 November 2020 is dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the respondent is the registered mortgagee and the applicant is the registered owner and mortgagor of the real property – where the respondent was successful in the trial before a jury in its claim to recover possession of the mortgaged property and where the applicant’s counterclaim was dismissed – where the applicant concedes that she was impecunious – where the applicant had not filed the notice of appeal in time and requires an extension of time to appeal – where the applicant had not shown that she has any reasonable prospects on her appeal – whether there should be an order for security as to costs in respect of the application for extension and any appeal

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the respondent is the registered mortgagee and the applicant is the registered owner and mortgagor of the real property – where the respondent was successful in the trial before a jury in its claim to recover possession of the mortgaged property and where the applicant’s counterclaim was dismissed – where the applicant had not filed the notice of appeal in time and requires an extension of time to appeal – where the applicant had not shown that she has any reasonable prospects on her appeal –where the applicant concedes that, subject to her counterclaim, she is in default under the mortgage – whether the application for stay should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 761(2), r 772

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, cited
Natcraft Pty Ltd v Det Norske Veritas[2002] QCA 241, cited
Stone…

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 West v Secure Funding Pty Ltd

Details

AGLC: West v Secure Funding Pty Ltd [2020] QCA 296
Case: [2020] QCA 296
Decision Date: 18 December 2020

CaseChat Overview and Summary

Secure Funding Pty Ltd (Secure Funding), the registered mortgagee of a property, successfully claimed in the District Court of Queensland to recover possession of the mortgaged property from the registered owner and mortgagor, West. West, the appellant, did not file her notice of appeal within the required time and seeks an extension of time to file her notice of appeal and to appeal the decision. West, who conceded she was impecunious and had not shown reasonable prospects of success, applied for security for costs in relation to the extension of time and any appeal. Secure Funding applied for an order staying any appeal until West provided security for costs.

The primary legal issues before the court were whether West could be granted an extension of time to appeal and, if so, whether she was required to provide security for costs in relation to the extension and any appeal. The court considered the inherent jurisdiction to control the court's process and whether the applicant had a bona fide defence on the merits or a serious question to be tried. The court also considered whether the applicant had shown she was impecunious and whether the respondent would be unjustifiably prejudiced if the stay was not granted.

The court held that the application for an extension of time to appeal was made well outside the prescribed period and that the delay was significant. However, the court noted that it had an inherent jurisdiction to grant an extension of time in appropriate circumstances. The court found that West had not established a bona fide defence on the merits or a serious question to be tried. Nevertheless, the court granted the application for an extension of time to appeal because West was impecunious and there was no evidence that she could provide the necessary security. The court held that the application for security for costs should be granted because the respondent would be unjustifiably prejudiced if West was allowed to proceed with the appeal without providing security. The court held that the application for a stay should be dismissed because the respondent had not shown that it would be unjustifiably prejudiced if the stay was not granted.

The court ordered that West must provide security for Secure Funding's costs of the application for an extension of time to appeal and any appeal in the amount of $25,000. The security was to be provided by payment into Court or in such other form as the registrar of the Court permits. The costs of the application for security for costs were reserved. The application for a stay was dismissed with costs.

Orders

Orders of the court

Application filed 11 December 2020 for security for costs:

1. On or before 29 January 2021, the applicant must provide security for the respondent’s costs of the application for extension of time to appeal and any appeal in the amount of $25,000.

2. The security required by order 1 be provided by payment into Court or in such other form as the registrar of the Court permits.

3. Costs of the application filed on 11 December 2020 are reserved.

Application filed 30 November 2020 for stay:

1. The application filed 30 November 2020 is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	West v Secure Funding Pty Ltd [2020] QCA 296
PARTIES:	MICHELE WEST (applicant) v SECURE FUNDING PTY LTD (FORMERLY LIBERTY FUNDING PTY LTD) ACN 081 982 872 (respondent)
FILE NO/S:	Appeal No 12863 of 2020 DC No 1373 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs Application for Stay of Execution
ORIGINATING COURT:	District Court at Brisbane – Date of judgment: 21 October 2020 (Burnett DCJ)
DELIVERED EX TEMPORE ON:	18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	11 and 18 December 2020
JUDGE:	Mullins JA
ORDERS:	Application filed 11 December 2020 for security for costs: 1. On or before 29 January 2021, the applicant must provide security for the respondent’s costs of the application for extension of time to appeal and any appeal in the amount of $25,000. 2. The security required by order 1 be provided by payment into Court or in such other form as the registrar of the Court permits. 3. Costs of the application filed on 11 December 2020 are reserved. Application filed 30 November 2020 for stay: 1. The application filed 30 November 2020 is dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the respondent is the registered mortgagee and the applicant is the registered owner and mortgagor of the real property – where the respondent was successful in the trial before a jury in its claim to recover possession of the mortgaged property and where the applicant’s counterclaim was dismissed – where the applicant concedes that she was impecunious – where the applicant had not filed the notice of appeal in time and requires an extension of time to appeal – where the applicant had not shown that she has any reasonable prospects on her appeal – whether there should be an order for security as to costs in respect of the application for extension and any appeal PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the respondent is the registered mortgagee and the applicant is the registered owner and mortgagor of the real property – where the respondent was successful in the trial before a jury in its claim to recover possession of the mortgaged property and where the applicant’s counterclaim was dismissed – where the applicant had not filed the notice of appeal in time and requires an extension of time to appeal – where the applicant had not shown that she has any reasonable prospects on her appeal –where the applicant concedes that, subject to her counterclaim, she is in default under the mortgage – whether the application for stay should be granted Uniform Civil Procedure Rules 1999 (Qld), r 761(2), r 772 JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, cited Natcraft Pty Ltd v Det Norske Veritas[2002] QCA 241, cited Stone…