Cherry v Read [1996] FCA 1197

Cherry v Read [1996] FCA 1197

The trial judge's discretion to order security for costs against Mr Cherry was properly exercised given findings he had deliberately organised his affairs to be judgment proof, and absence of evidence that the litigation would be stifled; no sufficient doubt exists about correctness of discretion to warrant leave to appeal.

Parties
First Applicant: Nicholas William John Cherry; Second Applicant: Searush Pty Ltd; Third Applicant: Erin Pty Ltd; Fourth Applicant: Petroline Oil Refining Pty Ltd; First Respondent: Brian Read; Second Respondent: Woodlands Golf Resort Pty Ltd; Third Respondent: Jusson Pty Ltd; Fourth Respondent: Bar Enterprises Pty Ltd; Fifth Respondent: Barbara Alice Read; Sixth Respondent: A E Group Pty Ltd; Seventh Respondent: Raine & Horne Valuations (QLD) Pty Ltd
Jurisdiction
Australia
Judgment Date
21 November 1996
Procedural Posture
Application for Leave to Appeal / Post Interlocutory; Adjudication on Leave to Appeal Order for Security for Costs
Outcome
Application for leave to appeal refused
Legal Topics
Security for Costs, Appeals From Interlocutory Orders
Practice and Procedure Security for Costs Appeals From Interlocutory Orders

Case Brief

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Parties

Nicholas William John Cherry

First Applicant

Searush Pty Ltd

Second Applicant

Erin Pty Ltd

Third Applicant

Petroline Oil Refining Pty Ltd

Fourth Applicant

Brian Read

First Respondent

Woodlands Golf Resort Pty Ltd

Second Respondent

Jusson Pty Ltd

Third Respondent

Bar Enterprises Pty Ltd

Fourth Respondent

Barbara Alice Read

Fifth Respondent

A E Group Pty Ltd

Sixth Respondent

Raine & Horne Valuations (QLD) Pty Ltd

Seventh Respondent

Procedural Posture

Application for Leave to Appeal / Post Interlocutory; Adjudication on Leave to Appeal Order for Security for Costs

Legal Issues

  1. 1 Whether leave should be granted to appeal against interlocutory order for security for costs
  2. 2 Whether trial judge's discretion miscarried in making security for costs order against a natural person

Ratio Decidendi

The trial judge's discretion to order security for costs against Mr Cherry was properly exercised given findings he had deliberately organised his affairs to be judgment proof, and absence of evidence that the litigation would be stifled; no sufficient doubt exists about correctness of discretion to warrant leave to appeal.

Court Disposition

Application for leave to appeal refused

Orders

  • The application for leave to appeal from the orders made by Justice Kiefel dated 15 August 1996 is refused.
  • The applicants pay the costs of the respondents other than the sixth respondent.