Breen v Lambert & Anor [1991] QSCFC 152

A JL A AVV-M^AjAjJLHi'HVJO K fTfrrr \r^r.(rr,T State Reporting Bureau, 4th Floor, The Law Courts, George • Street, BRISBANE. 0 . 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) _ __ SSUF urea, 1/JJLL.l!_ i SUPREME COURT OF QUEENSLAND FULL COURT MCPHERSON SPJ AMBROSE J MACKENZIE J Motion No 4547 of 1988 BETH BREEN AS ADMINISTRATRIX OF THE ESTATE OF KEVIN PATRICK BREEN Plaintiff and ARNOLD LAMBERT and RICHARD K C WAN Defendants BRISBANE .DATE 24/10/91 JUDGMENT 1 [1991] QSCFC 152 -- 1 of 6 -- /4*±XU 10 20 BO 40 50 60 MR JUSTICE MCPHERSON: This is"a- motion • to ' strike out the defendants' appeal ' for want of prosecution. The application is made in'action No 4547 of 1988 in which Mr Justice Byrne gave judgment in favour of the plaintiff for damages for breach of Contract in the-sum of 745,611.21 against the two defendants , Lambert and Wan, together with other relief that it is not necessary to mention. The judgment was given on 9 August 1990 and the notice of appeal was filed on or about 3 September 1990. I will refer to this as the appeal, or the first appeal. On 11 September 199 0 a: stay of execution was granted conditioned upon payment into Court by the defendants of the judgment amount and a sum on account of costs within a specified time. The condition was not fulfilled. There have been considerable delays by the defendants in ordering, arranging and paying for the appeal record and otherwise bringing the matter to a state where it can be heard and determined in the Full Court. ■ ‘ - ■ One reason for this no doubt is that the defendant, Lambert, became bankrupt on his own petition on 8 October 1990. Steps are, we were informed, being taken with a view to making the defendant Wan bankrupt also . It is plain that both defendants are insolvent-although Lambert claims to have access to funds enabling him to pay the costs of the appeal. ’ The circumstances disclosed in the material before us would, I consider, be sufficient to justify striking out the appeal. • 10 20 30 40 50 60 Govt. Printer, Qld. 2 -- 2 of 6 -- However, the solicitor for the defendants, Mr Carberry, who appeared before the Court on-behalf of both defendants to oppose the motion,, has undertaken to this Court to give instructions with respect to the exhibits to be included in the appeal record and also not to withdraw instructions for the completion of the record, and generally to ensure that the appeal is proceeded with expeditiously and without delay. In the light of this undertaking, I do not think that the motion should be peremptorily struck out at this stage. . In view, however, of the parlous financial condition of the defendants, the case is a proper one for ordering that security for the costs of the appeal be furnished by the defendants. I therefore propose-that on or before midday; on Thursday, 31 October 1991, the defendants furnish by way of security for the costs of the. appeal an amount of $15,000, such amount to be provided either by payment..into • Court of the sum of $15,000 or by or in such other manner or form as may be agreed upon by the solicitors for the parties. -- - To enable this security to be provided and the undertaking to be carried out and the Court to be assured that -the appeal is being expeditiously proceeded with,- the motion ought, in my view, be adjourned to 10.15 a.m. on Friday, 1 November 1991. If those requirements have by then been diligently attended to, it may be that the Court on that - occasion will be minded not to strike out the appeal. 10 20 30 40 50 60 Govt. Printer, Qld. 3 -- 3 of 6 -- ] 10 The appeal of which I have so far. been speaking is the first appeal instituted by the notice of appeal filed on 3 September 1990. However, after that appeal was instituted the defendants attempted to intercept the judgment or its execution by an application for relief under 0 45 r 1 of the Rules of the Supreme Court .. The application-was. heard by Mr Justice Thomas who dismissed it on 16 August 1991. Needless to say , an-appeal, which I will refer to as the second appeal, has been instituted by the defendants against that decision. 20; l 10 20 There :is a question that was raised before us whether that appeal was instituted within the time limited under 0 70 r 4. The answer to that question depends in the end upon whether the decision appealed from is properly to be 30. considered as final or interlocutory. If the latter, it ought to have been-instituted within a period of - . 10 days of. the application .being refused in terms of the Rules of Court; In fact, the notice of appeal was not filed until 5 September 1991, which means that it was some 10 or 40 - 12 days,,more or less, late. On that basis it is sought to strike it out. . 50. 60 Mr Jackson of - Queen's Counsel for the plaintiff candidly acknowledged, however,- that the plaintiff had not sustained any demonstrable prejudice by reason of the delay to which I have referred.. No formal’ application to extend the time for appealing has been made;although the defendantssolicitor asks that we consider doing so. :In these circumstances , in my view, the proper course to adopt is to require that the 50 60 Govt. Printer, Qld. 4 -- 4 of 6 -- defendants file a notice of motion applying.for the time for appealing to be extended to. 5 September 1991 when the notice of appeal in the second appeal was, in fact, filed. If, on Friday, 1 November 1991, the Court is satisfied on appropriate evidence that everything has been or will be irrevocably done to ensure that the second appeal proceeds with expedition and in.such a way as to ensure that it can, without delaying the first appeal, be heard and determined together with that first appeal, I would be disposed to adjourn to the Court that hears the first appeal the application to extend time for the. institution of the second appeal . It should, in. my view, be ordered that the costs to date of the application to strike out the first appeal .should be . taxed and paid by the defendants. The costs of the . . application to strike out the second appeal should be reserved to the hearing on 1 November 1991. to which, as I have said, the notice of motion itself should be adjourned. I would, therefore, propose the following orders: first, order that the defendants furnish security in the sum of $15,000, as specified in these remarks I have been making,for the costs of the appeal instituted on 3 September 1990; secondly, order that the costs of the application to.strike out the first appeal be taxed and.paid by.the defendants; thirdly, adjourn the motion to Friday, 1 November 1991 at 10.15 a.m. ; and finally,'reserve to that adjourned hearing . the costs of applying-to .strike out the second appeal. Govt. Printer, Qld. 5 -- 5 of 6 -- 1 10 20 30 40 50 60 Those are the orders I would make. MR JUSTICE AMBROSE: Yes, I agree. I have nothing to add. MR JUSTICE MACKENZIE: I agree with the orders proposed by the learned presiding Judge and with his reasons. MR JUSTICE MCPHERSON: Those are the orders we will make. *• Govt. Printer, Q!d. 6 -- 6 of 6 --