Bank of Queensland Ltd v Willson & Anor [2016] QCA 309

[2016] QCA 309 COURT OF APPEAL FRASER JA Appeal No 9868 of 2016 SC No 1519 of 2013 BANK OF QUEENSLAND LIMITED Applicant ACN 009 656 740 v MURRAY CHARLES WILLSON AND PRESTIGE POOLS PAVING AND LANDSCAPES PTY LTD Respondents ACN 063 803 672 BRISBANE WEDNESDAY, 23 NOVEMBER 2016 JUDGMENT FRASER JA: This is an application for security for costs of this appeal. The trial judge gave judgment in favour of the respondent bank against the appellant on the appellant’s counterclaim against the bank. The appellant signed a joint facility account agreement, in which he expressly authorised the respondent to use money, in any of the appellant’s accounts, to pay out the money owing under the join facility agreement. To summarise it very briefly, the appellant’s counterclaim challenged the actions of the bank in crediting to the joint facility account a cheque that had been drawn in favour of the respondent bank for the credit of the appellant. -- 1 of 5 -- 2 On the face of the documents, the action of the respondent bank was authorised by the joint facility agreement, which the appellant had signed. The appellant made a case that he was a party to the joint facility agreement, together with another person, only because he’d been asked to help out the other person; the bank having assessed that the other person did not have the capacity to make the repayments. His own submissions to this court suggested that he was made a party so that he would be liable as a party to the joint facility. At the trial of his counterclaim, the appellant relied upon claims that the bank had engaged in misleading conduct, breach of fiduciary duty, breach of statutory provisions, breach of the banking code of conduct, and also unconscionable conduct. Essentially, unless he could make out those cases he could not succeed, having regard to the joint facility account contract he had signed. Also, his case ultimately had to depend upon his own oral evidence of communications that he had had with the bank. The trial judge did not accept any of the oral evidence given by the appellant, finding that he was not, in that respect, a reliable witness. The appeal is based on grounds that the trial judge erred in law in issuing judgment for the respondent, that on the evidence it was not open to the trial judge to conclude that a counterclaim failed, and that the trial judge took irrelevant matters into account, and failed to consider relevant matters in finding for the respondent bank on the counterclaim. These grounds of appeal were addressed in general terms in the appellant’s argument, but no detail was given of any particular way in which it was said that the trail judge made an error. The appellant argued that he did not have a fair trial, because all of his evidence was stopped. I did my best to attempt to obtain details of what evidence could have been given that was relevant, and who stopped it and how, but in the end I was not able to obtain any such detail. The appellant also argued that the trial judge did not take into account the respondent’s unconscionable conduct that occurred. It is clear from the reasons that the trial judge did have regard to the appellant’s allegations of unconscionable conduct, but ultimately found that it was unsupported by the accepted evidence. -- 2 of 5 -- 3 The appellant argued that the bank had earlier pleaded guilty to unconscionable conduct. Senior Counsel, for the respondent, submitted that it had not done so. I’m not in a position to resolve the dispute in argument about this, but for present purposes the point is that the appellant did not refer to any particular piece of evidence to justify the contention that the respondent had previously admitted being guilty of unconscionable conduct. If there were any such evidence, there would appear to have been nothing to prevent the appellant from adducing it at the trial. The appellant also argued that the prospects of the appeal are sound because the respondent and the trial judge completely ignored a large component of the appellant’s case about the relationship of bank and customer that existed between the parties. I have read the trial judge’s reasons for judgment. They are extensive. On their face, they do refer to the evidence which the appellant relied upon to establish his version of what the relationship of bank and customer was in his case. The trial judge did not accept the appellant’s case, in that respect, for the reason already mentioned. I am not in a position to make a reliable assessment of whether or not the appellant might have a viable appeal. On the arguments before me, and the evidence to which I have been referred, however, it must be said that the appellant has not demonstrated that he does have a viable appeal. It is an appeal which, essentially, requires the appellant to persuade the Court of Appeal, not just that he believes that his evidence was correct and should have been accepted, but that the trial judge, in some way, misused the advantage he had in seeing and hearing the evidence, such that the Court of Appeal could take the step of overturning the trial judge’s findings about the witness’s credibility and reliability. That preliminary assessment is one of the relevant considerations in deciding whether security for costs should be ordered. It is amongst a list of matters which are identified in Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor [2002] QCA 241. The second consideration referred to in that case is the financial position of the appellant. There are grounds for considering that the appellant is impecunious. The appellant himself submits that he is impecunious, although there is, in fact, no clear evidence of what, if any, assets he may have access to. Nevertheless, -- 3 of 5 -- 4 the fact that there are grounds for thinking that if the appeal were to fail, and if a costs order were made in favour of the respondent, the appellant might be unable to satisfy it, also supports an order for security. The appellant argued that it was the fault of the respondent that he was impecunious, and that it was not fair that the respondent bank could rely upon that in obtaining an order for security for costs. In the case which I mentioned, it was noted that the fact that an impecunious appellant has already had a day in court and lost, on the merits, is a circumstance which increases, rather than reduces, the likelihood of an order for security for costs. It was also noted in that case that the fact that an appellant blames his or her impecuniosity on a respondent who asks for orders for security for costs has less significance in an appeal than it does in an application for security before a trial. There has been no relevant delay in the respondent bringing the application for security for costs, so that is not a factor which is opposed to such an order. There is, I think, in this case likely to be a risk that an order for security, in any significant amount, will prevent the appellant from litigating the appeal. As I have explained, that does not have as much significance on appeal as it may have at trial, but it is still a relevant consideration. Even so, the balance of the factors I’ve mentioned support an order for security for costs, albeit, at a relatively reduced level. On the evidence, I am unable to tell whether the order for security, which I propose to make, will or will not, have the effect of precluding the appellant from litigating the appeal, but it is to be hoped that if there is any merit in the appeal, that the appellant will be able to pursue it. As to the amount of security, the affidavit evidence of a solicitor from the firm acting for the respondent is to the effect that the respondent is likely to incur a total of legal costs, including the costs associated with this application for security, of the order of $63,000. The solicitor for the respondent has estimated that the respondent would likely recover about 60 per cent of those costs, or $37,800 on a standard basis. Upon that footing, and with a further discount, the respondent has applied for security in the amount of $30,000. The same case I mentioned -- 4 of 5 -- 5 earlier included, as a guideline, that it is inappropriate to order an impecunious appellant to provide a greater security than is absolutely necessary. In addition, there are a number of cases, of which Great Northern Developments Pty Ltd & Ors v The Portland Downs Pastoral Company Pty Ltd [2011] QCA 184 is an example in which it has been observed that it is not necessarily the case that an order for security for costs should provide a respondent to an appeal with a full indemnity. In the circumstances of this case, I propose to order security in an amount which I expect will be less than a full indemnity, that is, in the amount of $25,000. … I order that the security be provided in a form satisfactory to the registrar by 30 January 2017. I order that unless and until security is so provided, the further prosecution of this appeal be stayed. … -- 5 of 5 --