Dipic v Bunning [2014] QCA 338

[2014] QCA 338 COURT OF APPEAL HOLMES JA Appeal No 9116 of 2014 DC No 4223 of 2013 ESAD ESKO DIPIC Applicant v PETER ROBIN BUNNING JANE GLENNISTER BUNNING Respondents BRISBANE WEDNESDAY, 17 DECEMBER 2014 HOLMES JA: The applicant for leave to appeal filed a statement of claim in the Magistrates Court which alleged that in 2000 in Holland, there was an agreement between him, his wife and the respondents that he and his wife would give the respondents 10,000 deutschmarks to help them buy a house or a block of land in Australia. The statement of claim alleged the money was transferred for that purpose in Holland. The respondents did not adhere to the terms of the agreement, and in 2004, the applicant sent a letter of demand. That original statement of claim, which was subsequently amended, was filed in 2012. The respondents succeeded in obtaining summary judgment on the basis that it was out of time. That decision was upheld in the District Court. The applicant sought leave to appeal to this Court. On 24 November 2014, Muir JA ordered that he provide security for the costs of his appeal in the amount of $12,000. That order was said to be made pursuant to r 772 of the Uniform Civil Procedure Rules. That is an -- 1 of 3 -- 2 inappropriate citation of the rule, because it gives power to order security for the prosecution of an appeal, not an application for leave to appeal. However, on an application for leave to appeal, the Court has the authority to order security under r 670 Bell v Bay-Jespersen [2004] 2 Qd R 235. Like r 774, r 674 provides that if security is not given, the proceeding is stayed, and the Court may dismiss it. The respondents to the leave application have sought to have the application for leave to appeal dismissed. They have filed an affidavit to the effect, and it is not disputed that no payment has been made. They also make the point that the leave applicant’s outline of argument and list of authorities were not filed and served by 21 November 2004, pursuant to the registrar’s timetable. They seek to have the application for leave to appeal dismissed. The leave applicant, on the other hand, seeks to have the order for security set aside or varied so that the security does not have to be provided until a police investigation of his claims against the respondents is completed. He wishes to argue that the respondents falsified documents to show that they were given the funds for a business purpose, and he places reliance on a police investigation, which apparently is underway, into whether or not that occurred. He also says that his claim is really based on trust; the allegation is that the money was given on trust. That was not pleaded, as it would have to be if the claim were to be made. He has raised some other issues. He asserts that he was within the limitation period, because the Family Court proceedings had been started within six years but obviously, that will not avail him. He complains of the lack of connection, effectively, between the Family Court and the Magistrates Court and District Court, which are questions well beyond my province. At the end of the day, I am firmly of the view that the applicant has limited prospects of success on this appeal, and I don’t think Mr Dipic himself really argues with that. The order for security for costs was appropriately made. There is no basis on which it should be varied or set aside, and I dismiss Mr Dipic’s application to that effect. On the other hand, I am not prepared to dismiss his application for leave to appeal out of hand. -- 2 of 3 -- 3 I propose to make this order. Unless, by 4 pm on the 30th of January 2015, the applicant for leave complies with the order for security for costs made on 24 November 2014, this application for leave will be deemed to be dismissed with costs, including any reserved costs to be assessed, without the need for any further order of the Court, and the registrar is authorised to enter up an appropriate record of that dismissal. What that means, Mr Dipic, is if you can’t come up with the money by the 30th of January, , whatever the rights and wrongs, your application for leave just can’t proceed. It will be dismissed automatically. -- 3 of 3 --