Whitelaw v Hookey - [2020] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

Whitelaw & Ors v Hookey & Anor [2020] QCA 145

PARTIES:

JOHN BRUCE WHITELAW
(first respondent/first applicant)
KA ESTATES PTY LTD ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST
(second respondent/second applicant)
JBW ESTATES PTY LTD ACN 600 602 819 AS TRUSTEE OF THE JBW FAMILY TRUST
(third respondent/third applicant)
v
SCOTT GREGORY HOOKEY
(first appellant/first respondent)
KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST
(second appellant/second respondent)

FILE NO/S:

Appeal No 4832 of 2020
SC No 8477 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs
Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 63 (Flanagan J)

DELIVERED ON:

30 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2020

JUDGES:

Morrison JA

ORDERS:

1.   The appellants provide security for the respondents’ costs of and incidental to the appeal in the sum of $125,000, such sum to be paid; (i) as to $50,000 by 6 July 2020, and (ii) as to $75,000 by 28 August 2020.

2.   The security in paragraph 1 is to be provided by either:

a.   paying that sum into court; or

b.   delivering to the Registrar of the Court of Appeal a bank guarantee in that sum, given by a bank licensed to carry on a banking business in Australia under the Banking Act1959 (Cth), payable to the Registrar without limitation as to time and otherwise in a form satisfactory to the Registrar.

3.   If, by 4.30 pm on 6 July 2020 the appellants have not provided security as to $50,000 in accordance with paragraph 1, then the appeal shall stand dismissed.

4.   If, by 4.30 pm on 28 August 2020 the appellants have not provided security in the sum of $75,000 in accordance with paragraph 1, then the appeal shall stand dismissed.

5.   The appellants pay the respondents’ costs of and incidental to the application for security for costs.

6.   The respondents pay the appellants’ costs of the application for a stay of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – SECURITY FOR COSTS – where the parties have been engaged in proceedings in the Supreme Court in relation to questions arising over the ownership and operation of a child care centre at Hope Island – where the respondents/appellants’ claims were dismissed and it was declared that the registered lease had been lawfully terminated – where the respondents/appellants have appealed from that decision, contending that there are a considerable number of errors – where the applicants/respondents seek three forms of relief – whether provision of security for costs of the appeal should be awarded – whether the appeal should be stayed if the respondents/appellants did not pay the arrears of rent under the lease

COVID-19 Emergency Response Act 2020 (Qld)
Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 9, s…

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 Whitelaw v Hookey

Details

AGLC: Whitelaw v Hookey [2020] QCA 145
Case: [2020] QCA 145
Decision Date: 30 June 2020

CaseChat Overview and Summary

In the case of Whitelaw v Hookey, the appellants, Mr Hookey and Kids Academy Hope Island, appealed against a Supreme Court decision that dismissed their claims and declared that a registered lease had been lawfully terminated. The respondents, KA Estates, sought three forms of relief: an order for security for costs of the appeal, a stay of the appeal if the arrears of rent were not paid, and an order for the appellants to pay the respondents' costs of the application for security for costs. The appellants opposed these applications.

The central legal issues in this case were whether it was appropriate to order security for costs of the appeal, and if so, in what amount. Additionally, the court needed to determine whether the appeal should be stayed if the appellants did not pay the arrears of rent under the lease, and whether the parties should bear their own costs in the application.

The court concluded that it was appropriate to order security for the respondents' costs of the appeal. It was noted that the sum of $125,000 was an appropriate amount, and the appellants' proposal to pay this sum in two tranches was accepted. The court emphasised that the security was to cover the costs incurred, and there was no reason why the appellants' proposal should not be adopted. The court also acknowledged the risk that the appeal might not proceed on all current points once further attention was paid to it. The court ordered the appellants to provide security in the sum of $125,000, with the first tranche of $50,000 to be paid by 6 July 2020 and the second tranche of $75,000 by 28 August 2020. If the appellants did not provide the security, the appeal would stand dismissed. The court also ordered the appellants to pay the respondents' costs of the application for security for costs, and the respondents to pay the appellants' costs of the application for a stay of the appeal.

The court's reasoning was based on the need to ensure that the respondents were protected from potential financial loss if the appeal was unsuccessful. The court considered the fact-heavy nature of the appeal and the risk that the appeal might not proceed on all current points once further attention was paid to it. The court's decision to order security in two tranches was based on the appellants' proposal and the need to cover the costs incurred. The court's decision to order the parties to bear their own costs in the application was based on the outcome of the applications.

Orders

Orders of the court

1. The appellants provide security for the respondents’ costs of and incidental to the appeal in the sum of $125,000, such sum to be paid; (i) as to $50,000 by 6 July 2020, and (ii) as to $75,000 by 28 August 2020.

2. The security in paragraph 1 is to be provided by either:

a. paying that sum into court; or

b. delivering to the Registrar of the Court of Appeal a bank guarantee in that sum, given by a bank licensed to carry on a banking business in Australia under the Banking Act 1959 (Cth), payable to the Registrar without limitation as to time and otherwise in a form satisfactory to the Registrar.

3. If, by 4.30 pm on 6 July 2020 the appellants have not provided security as to $50,000 in accordance with paragraph 1, then the appeal shall stand dismissed.

4. If, by 4.30 pm on 28 August 2020 the appellants have not provided security in the sum of $75,000 in accordance with paragraph 1, then the appeal shall stand dismissed.

5. The appellants pay the respondents’ costs of and incidental to the application for security for costs.

6. The respondents pay the appellants’ costs of the application for a stay of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the course of oral argument before me, it was effectively accepted that the sum of $125,000 was an appropriate amount.Conclusion on security Balancing the matters referred to above, I have come to the conclusion that it is an appropriate case in which to order security. Further, given the fact-heavy nature of the appeal, there is reason to think that a substantial proportion of the costs to be incurred in preparation for the appeal will be incurred towards the end of the period of preparation. As security is just that, security for costs incurred, there is no reason why the appellants’ proposal to pay in two tranches should not be adopted. The hearing date for the appeal is late September, and the second tranche will be nearly a month before that. In either case, if the sum is not paid into court, in cash or in a form satisfactory to the Registrar, the appeal will stand dismissed. The staged payment also recognises, as was perhaps implicit in the submissions by Senior Counsel for the appellants, the risk that the appeal might not proceed on all current points once further attention is paid to it.Relief based on arrears of rent The second part of the relief sought on this application was in respect of undertakings given as part of an order by Justice Mullins on 12 September 2018. Those undertakings were given by each of Mr Hookey and KAHI, relevantly as follows:“Each of the plaintiffs … further undertakes (without admission), until the trial of this proceeding or further order, that:-1.KAHI will forthwith on the making of this order pay to KA Estates the sum of $623,260.92, on account of the claim by KA Estates for rent and outgoings and GST due under the Registered Lease …2.KAHI will, by the close of banking business on Wednesday 19 September 2018, pay to KA Estates the further sum of $63,669.88, on account of the claim by KA Estates for rent and outgoings and GST due under the Registered Lease …3.They will, forthwith on the making of this order, provide to their solicitors, Fraser Clancy Lawyers Pty Ltd, an irrevocable written authority and direction in the following terms:-“Dear SirsWe, SCOTT GREGORY HOOKEY and KIDS ACADEMY HOPE ISLAND PTY LTD give this authority and direction pursuant to our undertaking to the Supreme Court of Queensland in Proceeding No 8477 of 2018 given on 12 September 2018.We HEREBY IRREVOCABLY AUTHORISE AND DIRECT you to deal with the sum of $524,389.10 (“the Trust Security”) in your trust account on the following bases until further order of the court:-(a)your firm is to have the same obligation to make payment from the Trust Security to the second defendant, KA Estates Pty Ltd, as would a bank issuing a bank guarantee in favour of the second defendant pursuant to clause 36 of the Registered Lease, and(b)the second defendant is to have the same right under clause 36 of the Registered Lease to call on your firm to make payment from the Trust Security to the second defendant as the second defendant has to call on a bank guarantee in favour of the second defendant issued pursuant to clause 36 of Registered Lease, save and except in relation to each of such obligation and right, an obligation to make and a right to seek payment of any interest on late payments …”…5.KAHI will pay the rent, other outgoings and any other moneys payable in accordance with the Registered Lease, save and except for any interest on late payments claimed by KA Estates thereunder and for sums payable under the registered lease in relation to the period before 1 October 2018.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Whitelaw & Ors v Hookey & Anor [2020] QCA 145
PARTIES:	JOHN BRUCE WHITELAW (first respondent/first applicant) KA ESTATES PTY LTD ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST (second respondent/second applicant) JBW ESTATES PTY LTD ACN 600 602 819 AS TRUSTEE OF THE JBW FAMILY TRUST (third respondent/third applicant) v SCOTT GREGORY HOOKEY (first appellant/first respondent) KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST (second appellant/second respondent)
FILE NO/S:	Appeal No 4832 of 2020 SC No 8477 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane – [2020] QSC 63 (Flanagan J)
DELIVERED ON:	30 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	16 June 2020
JUDGES:	Morrison JA
ORDERS:	1. The appellants provide security for the respondents’ costs of and incidental to the appeal in the sum of $125,000, such sum to be paid; (i) as to $50,000 by 6 July 2020, and (ii) as to $75,000 by 28 August 2020. 2. The security in paragraph 1 is to be provided by either: a. paying that sum into court; or b. delivering to the Registrar of the Court of Appeal a bank guarantee in that sum, given by a bank licensed to carry on a banking business in Australia under the **Banking Act1959 (Cth), payable to the Registrar without limitation as to time and otherwise in a form satisfactory to the Registrar. 3. If, by 4.30 pm on 6 July 2020 the appellants have not provided security as to $50,000 in accordance with paragraph 1, then the appeal shall stand dismissed. 4. If, by 4.30 pm on 28 August 2020 the appellants have not provided security in the sum of $75,000 in accordance with paragraph 1, then the appeal shall stand dismissed. 5. The appellants pay the respondents’ costs of and incidental to the application for security for costs. 6. The respondents pay the appellants’ costs of the application for a stay of the appeal.**
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – SECURITY FOR COSTS – where the parties have been engaged in proceedings in the Supreme Court in relation to questions arising over the ownership and operation of a child care centre at Hope Island – where the respondents/appellants’ claims were dismissed and it was declared that the registered lease had been lawfully terminated – where the respondents/appellants have appealed from that decision, contending that there are a considerable number of errors – where the applicants/respondents seek three forms of relief – whether provision of security for costs of the appeal should be awarded – whether the appeal should be stayed if the respondents/appellants did not pay the arrears of rent under the lease COVID-19 Emergency Response Act 2020 (Qld) Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 9, s…