Beames v Rigby

REASONS FOR JUDGMENT 1 This is an application for security for costs in connection with an appeal by a bankrupt against the making of the sequestration order. The bankruptcy was ordered in the Federal Magistrates Court after argument, and the magistrate gave reasonably detailed reasons. I have perused the reasons, and although it is not possible to say with absolute certainty that they are beyond appeal, they seem to be cogent. No apparent error or inconsistency emerges from them. Nonetheless, the bankrupt wishes to ventilate many of the issues there considered and some other issues on appeal. It is not for me to shut him out from so doing. 2 He has explained at some length the major ground of appeal, which appears to be that the judgment creditor, the present applicant for security, was guilty of abuse of process in commencing and prosecuting the bankruptcy proceedings. However nothing which has been said to me demonstrates any reason for so concluding. There seems to be virtually no evidence suggesting any improper purpose. 3 The bankrupt's primary concern arises out of a relatively long-standing battle with the Registrar of Titles and indirectly, with the government of the State of Queensland, concerning certain land which he owned prior to his bankruptcy. The land is bounded in part by Norman Creek, and it seems that the boundary has shifted as a result of earthworks carried out on the bank of the creek. There is a dispute between him and the State of Queensland as to who owns the area created by the relocation of the bank. That, as it seems to me, has nothing to do with the judgment creditor who advanced money to the bankrupt on the security of the land and who petitioned in bankruptcy upon the basis of that debt. The act of bankruptcy was non-payment of a judgment debt for costs. That debt was eventually paid prior to the hearing of the petition. Nonetheless, the act of bankruptcy was complete, and the judgment creditors chose to rely upon it. The bankrupt also fears that the Trustee in Bankruptcy may not pursue his claims against the State of Queensland and/or the Registrar of Titles in respect of some other matter concerning the Noosa Shire Council. Again, that seems to me to have nothing to do with the judgment creditor. 4 The bankrupt's arguments on appeal appear to be little more than re-ventilation of matters previously raised. I see no reason to believe that his prospects will be any better on appeal than they were at first instance, but that is a matter for him. The present question is whether he should be ordered to give security, accepting the real possibility that to order security will result in his being deprived of an opportunity to prosecute his appeal. That is a serious matter which I keep in mind in determining the present application. The question is one of balance between his right to appeal and the judgment creditor's interest in securing himself against the risk that he will be unable to recover costs in the event that he is successful on appeal. That he will not be able to do so seems to be the inevitable consequence of the impecuniosity of the bankrupt. 5 On balance, I consider that it is appropriate that an order for security be made. The evidence demonstrates likely costs to be incurred by the judgment creditor in the amount of $33,000. It is suggested that security should be given in the sum of $25,000. That seems reasonable to me. 6 I will order that the appellant, Douglas Macleod Beames, give security, to the satisfaction of the Registrar in the sum of $25,000 for the costs of Geoffrey Ian Rigby incurred and to be incurred in connection with the appeal commenced by the said Douglas Macleod Beames in this Court and numbered Q88 of 2002, such security to be provided within 28 days of today. In default of his so doing, the appeal is to be stayed until further order. 7 I order that the appellant, Douglas Macleod Beames, pay the costs of the respondent, Geoffrey Ian Rigby, of this application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.