Australian Horticultural Finance Pty Ltd v Jekos Holdings Pty Ltd [1996] QCA 567

1 [1996] QCA 567 COURT OF APPEAL FITZGERALD P DAVIES JA MACKENZIE J Appeal No 4706 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and JEKOS HOLDINGS PTY LTD (ACN 009 940 738) Respondent (Plaintiff) Appeal No 4708 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and CJZ INVESTMENTS PTY LTD (ACN 009 951 062) Respondent (Plaintiff) Appeal No 4709 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and HGT INVESTMENTS PTY LTD (ACN 009 951 080) Respondent (Plaintiff) -- 1 of 6 -- 2 Appeal No 4710 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and PETER ZINN Respondent (Plaintiff) Appeal No 4711 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and JMB INVESTMENTS PTY LTD (ACN 009 951 071) Respondent (Plaintiff) Appeal No 4712 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and SHETTLESTON PTY LTD (ACN 009 905 891) Respondent (Plaintiff) Appeal No 4713 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and DABARY INVESTMENTS PTY LTD (ACN 009 951 382) Respondent (Plaintiff) Appeal No 4714 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and THEME (NO 3) PTY LTD (ACN 009 783 297) Respondent (Plaintiff) Appeal No 4715 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and ERAND PTY LTD (ACN 010 536 400) Respondent (Plaintiff) -- 2 of 6 -- 071096 D.1 T5/SJ22 M/T COA243/96 3 Appeal No 4716 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and KFA INVESTMENTS PTY LTD (ACN 009 951 053) Respondent (Plaintiff) Appeal No 4717 of 1992 AUSTRALIAN HORTICULTURAL FINANCE PTY LIMITED Appellant (ACN 003 982 027) (Defendant) and ITA INVESTMENTS PTY LTD (ACN 009 979 819) Respondent (Plaintiff) BRISBANE ..DATE 07/10/96 JUDGMENT -- 3 of 6 -- 071096 D.1 T5/SJ22 M/T COA243/96 4 JUDGMENT THE PRESIDENT: There are before the Court 11 applications for security for costs each relating to an appeal which has been instituted to the Court arising out of actions which were instituted and heard in the trial division and in which the appellants were unsuccessful. Essentially, the issue between the parties at this point is not whether or not there should be security ordered against the appellant but as to the quantum. The applicant for security submits that because there are 11 appeals involved the figure should be something of the order of $22,000 whereas the respondent puts the figure at about $7,000, but accepts that Mr Monsour, a legal costs assessor, has estimated that for a one day appeal in respect of one of the actions a figure of about nine and half thousand dollars is likely to be the taxed costs. It is not necessary to discuss the applications in detail. The principles which relate to applications of this character are well established. The main factor urged on behalf of the applicant for increasing beyond the nine and a half thousand dollars indicated by Mr Monsour is that on taxation, because there are 11 appeals, there will be costs allowed in relation to each appeal and therefore it is suggested a significantly higher figure than that indicated for one appeal should be granted by way of security. On the other hand, it is well established that an order for security is not necessarily intended to provide the respondent with a complete indemnity in relation to costs it -- 4 of 6 -- 071096 D.1 T5/SJ22 M/T COA243/96 5 JUDGMENT might incur in defending judgments if it is unable to recover costs ordered to be paid by an appellant or appellants. In my opinion, in the circumstances, there should be one single order in respect of all 11 applications and all 11 appeals that the respondent or respondents provide security in the sum of $10,000 to await the outcome of the appeals. The respondents should also pay the taxed costs of the proceedings before the Court today. DAVIES JA: I agree. MACKENZIE J: I agree. THE PRESIDENT: The order will be as I have indicated. MR COOPER: In what time does Your Honour contemplate security being provided to the satisfaction of the Registrar; seven days? THE PRESIDENT: Do you want 14 days? MR COOPER: Seven days. THE PRESIDENT: You want seven, you want 21, what about----- MR DRYSDALE: Yes, Your Honour, 14 sounds a reasonable middle ground, Your Honour. MR COOPER: The matter's been alive and debated since mid- June so it's hardly a matter which has taken us by surprise. THE PRESIDENT: You're not going to get on this year, Mr Cooper. MR COOPER: It won't, Your Honour, because of the further application before Mr Justice Dowsett in any event. THE PRESIDENT: You're not going to get on this year anyway so 14 days doesn't sound too bad. THE PRESIDENT: The Court further orders that the security -- 5 of 6 -- 071096 D.1 T5/SJ22 M/T COA243/96 6 JUDGMENT be provided within 14 days from today's date. -- 6 of 6 --