Chalfen v Courtney [2020] QCA 251 [2020] 47 QLR

SUPREME COURT OF QUEENSLAND CITATION: Chalfen v Courtney [2020] QCA 251 PARTIES: ELEANOR SOPHIE CHALFEN (respondent/applicant) v SIMON CHRISTOPHER COURTNEY (appellant/respondent) FILE NO/S: Appeal No 7938 of 2020 SC No 2178 of 2020 DIVISION: Court of Appeal PROCEEDING: Application for Security for Costs ORIGINATING COURT: Supreme Court at Brisbane – [2020] QSC 195 (Williams J) DELIVERED ON: Date of Orders: 9 November 2020 Date of Publication of Reasons: 13 November 2020 DELIVERED AT: Brisbane HEARING DATE: 9 November 2020 JUDGE: Morrison JA ORDERS: Orders delivered: 9 November 2020 1. Application for security for costs refused. 2. No order as to costs. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the applicant/respondent has applied for an order that the respondent/appellant give security for the costs of the appeal in the sum of $51,500 – where the appeal concerns orders made on 26 June 2020 staying the proceedings permanently – where it is not necessary to embark upon a consideration of the reasons for making those orders, or an assessment of the prospects of success of the appeal – where the difficulty confronting the application for security for costs is that it has been brought very late in the proceedings generally – where the substantial bulk of the costs of the appeal have already been incurred – whether the application should be refused in the exercise of discretion COUNSEL: N H Ferrett for the respondent/applicant The appellant/respondent appeared on his own behalf SOLICITORS: HopgoodGanim Lawyers for the respondent/applicant The appellant/respondent appeared on his own behalf -- 1 of 3 -- 2 [1] MORRISON JA: The respondent to this appeal has applied for an order that the appellant give security for the costs of the appeal in the sum of $51,500. [2] The appeal concerns orders made on 26 June 2020 staying the proceedings permanently. For reasons which will appear, it is not necessary to embark upon a consideration of the reasons for making those orders, or an assessment of the prospects of success of the appeal. [3] The relevant chronology is set out below. [4] On 13 July 2020 the appellant informed the respondent’s solicitors of his intention to appeal. [5] The appeal was commenced on 23 July 2020. On the same day a copy of the notice of appeal was served on the solicitors for the respondent. [6] On 13 August 2020 the solicitors for the respondent wrote raising the question of security for the costs of the appeal. Security was sought at that time in the sum of $33,000 in respect of “our client’s anticipated costs of defending these proceedings”. That estimate did not include any costs associated with the making of an application for security for costs. [7] On 19 August 2020 the appeal was listed to be heard on 16 November 2020. [8] On 20 August 2020 the appellant responded to the letter dated 13 August. He advised that any application would be opposed, and pointed out that the respondent was already in possession of assets which were owned by the appellant, but which were “sufficient to satisfy any such security for costs”. That reference to the assets was to some gold bullion, a collection of vinyl records, and “other assets”. However, all of those assets were said to belong to the appellant and no consent was given to convert them into cash. [9] On 22 October 2020 the application for security for costs was filed. The application came on for hearing on 9 November 2020, one week before the hearing of the appeal. [10] The appellant readily concedes that he has no capacity to meet an adverse costs order in the event that the appeal fails. He takes some issue with the estimation of the costs for which security is sought, limited to questioning why the initial estimate was some $20,000 less than the final estimate. [11] It is not presently possible to make any definite assessment of the prospects of success in the appeal. Nor, for that matter, is it necessary to do so. The difficulty confronting the application for security for costs is that it has been brought very late in the proceedings generally. The appeal was instituted nearly four months ago. The application for security for costs, whilst foreshadowed, was not made until about three months after the appeal was filed, one month after the appeal had been listed to be heard on 16 November, and only a few weeks before the appeal was to be heard. The application for security was listed only one week prior to the appeal being heard. [12] Applications for security for costs, particularly of an appeal, must be brought promptly. This application has not been brought promptly. Further, an order for security for costs is normally for the costs that a party will incur in the future and which it fears it will not recover if successful. The substantial bulk of the costs of the appeal have already been incurred. That only highlights the necessity to move promptly on any such application. -- 2 of 3 -- 3 [13] In those circumstances the application should be refused in the exercise of discretion, because it has been brought too late. [14] As the respondent is self-represented, there are no attendant costs. The orders are: 1. Application for security for costs refused. 2. No order as to costs. -- 3 of 3 --