Bogaart, Shiu May Pty Ltd t/a Nightworx Night Club & Anor v Westminster Consultants Pty Ltd [1998] QCA 389

1 COURT OF APPEAL [1998] QCA 389 McPHERSON JA PINCUS JA JONES J Appeal No 4870 of 1998 DESMOND BOGAART, SHIU MAY PTY LTD TRADING AS NIGHTWORX NIGHT CLUB AND RUMA CONSTRUCTIONS PTY LTD TRADING AS RIVERSIDE SAND AND GRAVEL Appellants (Defendants) and WESTMINSTER CONSULTANTS PTY LTD Respondent (Plaintiff) (ACN 061 471 679) BRISBANE ..DATE 05/10/98 JUDGMENT -- 1 of 6 -- 051098 T20/SA2 M/T COA252/98 2 JUDGMENT McPHERSON JA: This is an application by the plaintiff in an action in the District Court where the plaintiff was successful in obtaining judgment summarily against the defendants in that action for a substantial sum of money. There is more than one defendant to the action; but it is convenient to refer to all three of them as only one because the principal defendant, who is a Mr Bogaart, was the person who acted as principal of the two corporate defendants in the action. The application is aimed at stopping in its tracks an appeal by the defendant against that judgment. The basis of the application is that service of the notice of appeal was deficient and should be set aside. The notice of appeal was attempted to be served upon the solicitors on the record for the plaintiff by faxing it, but after 4 p.m. on the last day for appealing to those solicitors at their address for service in the action. That method of service is also said to be and to have been defective because the notice of appeal is an originating proceeding in this Court, service of which the solicitors, it is said, had no authority to accept. Accordingly, it is submitted that the notice of appeal was not properly served at all, or at any rate within the time allowed by the Rules. It is conceded that the service was not effected within the time prescribed. It is, on the other hand, not disputed that the notice of -- 2 of 6 -- 051098 T20/SA2 M/T COA252/98 3 JUDGMENT appeal was filed in time, nor is it suggested that the plaintiff has suffered any prejudice by the attempted service in the fashion described. Ever since the decision in Middleton v. Freier [1958] Qd.R. 351, this Court or its predecessor has generally been prepared to waive defects of the kind described and to enlarge the time for appealing so far as it may be necessary in cases of this nature. Subject to what follows, I would not hesitate to do so on this occasion. However, by seeking an indulgence from this Court, as the defendant does here, the defendant exposes the appeal to scrutiny in this Court. We may, in consequence of being invited to exercise our discretion in favour of the defendant as appellant, examine the merits of the appeal. When they are examined, the matter that it is sought to argue on appeal assumes a somewhat less than impressive appearance. The defendant is a resident of Papua New Guinea, but for some time past has nevertheless been carrying on business as an investor in Queensland. For that purpose, he engaged the plaintiff as his financial or investment adviser. In that capacity, she claims and has sworn to having done a good deal of work for him, for which, despite her sending statements of account or other requests to him, has not yet been paid for. So far, the matter looks like one that would, if the claim -- 3 of 6 -- 051098 T20/SA2 M/T COA252/98 4 JUDGMENT was disputed as it was, need to go to trial; but the plaintiff has the advantage of having received from the defendant two, and possibly three, admissions of liability for the amounts claimed. One of those admissions was in writing, and one, which is oral, appears not to have been disputed by the defendant in the material filed on his behalf in the Court below or, at any rate, not so disputed as to make it clear that the admission did not take place in the form in which the plaintiff asserts. It was not until proceedings for recovery were instituted that the defendant disputed either the liability for the debt or its quantum, and that was done only in a formal letter from the defendant's solicitors. An attack was mounted on the quality of the admissions in question; but that is, on one view of it as I see it, a matter that can be effectively ventilated on appeal. On the face of it, as it appears now, the admissions in question look like reliable admissions against interest. In these circumstances, it seems to me to be appropriate to require the defendant to pay a price for the indulgence he is seeking from this Court in order to maintain on appeal a defence which may well turn out to be little more than a delaying tactic. As a condition of allowing service of the notice of appeal to stand as effective service within time, the defendant should, in my opinion, be required to pay into Court the -- 4 of 6 -- 051098 T20/SA2 M/T COA252/98 5 JUDGMENT amount of the judgment entered in favour of the plaintiff. There is evidence that the defendant has considerable means, so that an order of this kind will not prevent him from pursuing the appeal as if he were unable to comply with the order. In addition, the defendant should, in my opinion, be required to provide security in an amount of $7,000 for the costs of the appeal. Having regard to what has been said, I would make the following orders: 1. Upon payment into Court within 14 days of the amount of $76,827.51 to abide the determination of the appeal, order that service by facsimile of the notice of appeal on the plaintiff's solicitors after 4 p.m. on 29 May 1998 stand as good service of that notice of appeal on the plaintiff. 2. Further order that upon such payment proceedings in execution of the judgment be stayed until further order. 3. In default of such payment being made within the time specified, or such further time as this Court for good cause may allow, order that the application be dismissed with costs including the costs of and incidental to this application. -- 5 of 6 -- 051098 T20/SA2 M/T COA252/98 6 JUDGMENT 4. Further order that within 14 days the defendant provides security in the sum of $7,000 for the costs of the appeal, such security to be in the form of a bank guarantee as may be agreed upon by the plaintiff or, in default of an agreement, determined by the Registrar. 5. Further order that, in the event that the appeal proceeds, the costs of this application be the plaintiff's costs of the appeal. 6. There will be leave to the defendants within seven days to amend the notice of appeal as they may be advised. That is the series of orders that I propose. PINCUS JA: I agree. JONES J: And I agree. McPHERSON JA: The orders will be as I have stated them. ----- -- 6 of 6 --