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[2026] QSC 22
General information, not legal advice.
Supreme Court of Queensland
2026-02-19
Kelly J
Original judgment source is linked above.
[1] The defendants have applied for security for costs against the plaintiff, a natural person. The application is made pursuant to r 671(e) and (f) of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") on the basis that the plaintiff is said to be a natural person ordinarily resident outside Australia who has no material assets in Australia.
[2] The plaintiff (whom I will refer to as Trevor) is 80 years old and the stepfather of the second defendant (whom I will refer to as Travers). The defendants in their written submissions describe the proceeding as concerning the validity of a suite of documents entered into between Trevor, Travers and Free Choice Master Holdings Pty Ltd ("Free Choice") on or about 26 March 2021. The documents relevantly are a Deed of Gift pursuant to which Trevor is alleged by the defendants to have gifted $55,000,000 to Free Choice by way of a promissory note, a loan agreement pursuant to which Free Choice is alleged to have loaned the $55,000,000 back to Trevor and a Security Deed by which Trevor's obligations pursuant to the loan agreement are alleged to have been secured. The material suggests that in or about January 2025 Travers and Trevor fell out. In February 2025 Travers asserted that the gift and loan back arrangements are enforceable according to their terms and he made a demand by way of notice upon Trevor to make a monthly interest payment of $646,250 pursuant to cl 2.1 of the Loan Agreement. Trevor has contended that the gift and loan back arrangements are not binding as he and the defendants had no intention to perform them in accordance with their terms.
[3] Trevor claims that he and Travers discussed the future of the family business of "Free Choice" tobacco stores, vending machines and franchising in the context of Travers being concerned that Trevor might pass away and Travers would be exposed to the risk of successful applications by Trevor's children for further provision from Trevor's estate to the disadvantage of Travers. A lawyer was engaged in respect of the transaction to advise how that outcome might be avoided. It is alleged that the gift and loan back arrangement was effectively a sham and that the value of shares was contrived so that the value would well exceed the value of the family business and achieve the estate planning purpose of thwarting any claim by Trevor's children from challenging Trevor's Will after he passed away.
[4] In the midst of the fall out between Trevor and Travers in early 2025, Trevor was removed as a Director and Shareholder of two companies used for the purpose of conducting the business.
[5] Trevor commenced this proceeding claiming declarations that the documents purportedly giving effect to the gift and loan back arrangement are shams and contrary to public policy unenforceable. He also claims relief in the nature of declarations that his purported removal as a Director and Shareholder of the companies is void and of no effect.
[6] Travers and Free Choice counterclaim seeking to enforce the suite of documents as valid and enforceable in accordance with their terms. There are also allegations that Trevor made representations to Travers and by now asserting that the documentation comprises sham transactions is seeking to resile from those representations impermissibly.
[7] The legal onus for proving an entitlement to an order for security for costs rests throughout such an application on an applicant for such an order: DGR Global Ltd v PT Limited [2025] QCA 122 [65] and [66].
[8] The jurisdictional question on this application is framed by reference to r 671 (e) and (f).
[9] I was referred by Counsel to Robson v Robson [2010] QSC 378. Paragraphs 34 to 36 require setting out in full:
"34 The concept of "ordinary residence" has been the subject of many cases, most often where it is relevant for the purposes of the revenue laws, the bankruptcy laws and, on occasions, the present context of security for costs. In Re Taylor; Ex parte Natwest Australia Bank Limited, Lockhart J referred to several of the authorities in remarking that the words "ordinarily resident" have no technical or special meaning, but are ordinary English words and that whether a person is ordinarily resident in Australia is a question of fact and degree. In discussing the meaning of "ordinarily resident in Australia" within s 43(1)(b)(i) of the Bankruptcy Act 1966 (Cth), Lockhart J said:
To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word 'ordinarily' connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of 'ordinary residence' for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression 'ordinarily resident in' connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene (supra) and Lysaght (supra). As Lord Warrington said in Levene (at 232): '"Ordinarily resident" means according to the way a man's life is actually ordered.' The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231.
As to whether a person could be ordinarily resident in more than one country, Lockhart J said:
... At first blush it may seem strange to say that a person can be ordinarily resident in more than one country at the same time; but on closer analysis it is not. Plainly you cannot be physically present in more than one place at the same time. But the lifestyles of people vary greatly. Some people in the ordinary pursuit of their lives regularly or customarily live in more than one place, each of which has an element of permanence about it and is not merely a place of casual or intermittent resort.
Most people, if asked where they were ordinarily resident at a particular time, would name but one place: their home, because that would be the only place in which they normally or customarily live, although they may travel to other places on holidays or business intermittently. Other people may have two or more houses or flats and stay for various purposes and varying lengths of time in each. it may, depending on the circumstances, be permissible to say that at a particular time they are ordinarily resident in each of the places, though they may be at that time physically present somewhere else.
The English authorities suggest that it may also be possible for a person to have two ordinary residences, one within the jurisdiction and one outside. In such a case the Court has power to order security for costs, but that person's connection with the United Kingdom will be relevant to the exercise of that discretion. The closer the connection, the greater the relevance. If the claimant has an established home, and is resident, though not 'ordinarily resident' in that country, security will rarely be ordered. If the claimant has an established home and is ordinarily resident in that country, security will be ordered even more rarely ...
For that last proposition, Weinberg J cited Leyvand v Barasch, where Lightman J said:
The fact that the claimant is ordinarily resident out of the jurisdiction confers on the Court jurisdiction to order him to provide security. It is well established that a claimant may have two ordinary residences, one within the jurisdiction and one outside. The fact that a claimant who is ordinarily resident outside the jurisdiction is also ordinarily resident within the jurisdiction does not preclude the Court ordering security. For Order 23 confers jurisdiction to order security in the case of a claimant 'ordinarily resident out of the jurisdiction' and not in the case of a claimant 'not ordinarily resident within the jurisdiction'. But the connection of the claimant with this country is of course relevant to the exercise of discretion, and the closer the connection, the greater the relevance. If the claimant has an established home and is resident here, security may rarely be required; if the claimant has an established home and is ordinarily resident here an order for security may even more rarely be ordered.
[10] The defendants submitted that the evidence established that Trevor regularly and customarily lived in Thailand, spent substantial period there each year, maintained a home and bank account there and received ongoing medical care there. Reference was also made to text messages which had passed between Travers and Trevor. Those submissions fall to be considered in the context of the evidence as a whole.
[11] Trevor was cross examined on this application about matters relevant to the ultimate issues in the case but also relevant to the jurisdictional question on this application. He appeared as a witness who was generally not evasive and who was intent on giving direct answers. That was particularly apparent in the context of the questioning directly relevant to the jurisdictional question. For the purposes of this application, the cross examination provided no basis for this court forming any adverse view of Trevor's credit.
[12] The following objective evidence appeared to be unchallenged:
(a) The plaintiff is an Australian citizen
(b) He apparently resides in and spends a significant majority of his time in Australia.
(c) Between January 2020 and December 2022 he did not travel to Thailand at all.
(d) He described his travel to Thailand as intermittent.
(e) He visits Thailand to visit his wife's family and to provide assistance to a school for autistic children that he sponsors.
(f) When he travels to Thailand he does so on a tourist visa which prohibits him from staying there for more than 60 days at a time.
(g) He is not a citizen of Thailand and owns no real property in Thailand.
(h) His wife's family owns a farm in Thailand;
(i) His wife owns a house in Thailand which Trevor candidly accepted he refers to as their home, as he does their home in Australia;
(j) He maintains a bank account in Thailand for everyday expenses;
(k) He is a party to a residential lease of property located at North Hope Island in Queensland which he occupies as his residence.
(l) He has a General Practitioner in South East Queensland whom he visits at least 10 times per year and from whom he receives a prescription from that practitioner for medication that can only be obtained in Australia.
(m) He has a heart specialist in Southeast Queensland and a Vascular Surgeon whom he visits at least twice per year.
(n) In Australia, he has an existing Australian Health Insurance Fund, maintains a bank account and his personal tax accountant is in Southeast Queensland.
(o) He has no present intention to become a citizen or resident of Thailand.
(p) Unrest on the border of Thailand means he cannot travel there for an indefinite period as matters presently stand;
(q) His children and grandchildren live in Australia and he frequently visits them and he wishes to remain in personal contact with them.
[13] Under cross examination, Trevor gave evidence that when he had seen a cardiologist in 2019 in Thailand he had claimed the cost of that consultation on travel insurance. The emphasis placed on the text of 23 March 2019 by the defendants seemed to me to be misplaced to the extent it was sought to be relied on to submit that Trevor received ongoing medical care in Thailand and was looking to "getting on with his life in Thailand". The weight of the evidence supports a finding which I make that his ongoing medical care is very much tied to and linked to Australia and South East Queensland in particular. The text which read "I am getting on with my life" I would infer from the material apparently meant nothing more than that Trevor was getting on with his life after a medical episode which required a specialist consultation in Bangkok which was covered by travel insurance.
[14] Having regard to the unchallenged evidence I have outlined and my further findings, I am not persuaded that the applicants discharged their legal onus of proving that Trevor is ordinarily resident in Thailand. I am not satisfied that the defendants discharged their burden in relation to the jurisdictional question. Noting that the question is one of fact and degree, I find on the evidence that Thailand is a place where Trevor intermittently travels. Whilst his wife owns a house there which he refers to as a home, Trevor travels to Thailand under a tourist visa which prohibits him from staying for more than 60 days. He apparently takes out travel insurance to cover his stays. There is in my view no requisite element of permanence considered in regard to how his life is actually ordered and his habit of life. Notably, for a significant period between January 2020 and December 2022 he did not visit Thailand at all. He is presently unable to visit Thailand for an indefinite period. He is not a citizen or resident of Thailand and has no present intention of applying to become a citizen or resident.
[15] Moreover, had the jurisdictional question been decided in favour of the defendants, there were in my consideration powerful discretionary considerations which would also have warranted a refusal of this application.
[16] Firstly, I refer to paragraphs 34 to 36 in Robson and the statements to which I have referred. Even on the applicants' case for security it was not seriously contested that Trevor was at the very least resident in Australia and had an established home here at the property he rented. I did not understand the applicant's submission to be that Trevor was not ordinarily resident in Australia. In any event, the matters to which I have earlier referred plainly establish he was either a resident in Australia or is to be regarded as ordinarily resident in Australia.
[17] Secondly, there appears to be a significant triable issue of fact as to the purpose of the suite of documents. It is not possible at this early stage of the proceeding to form any meaningful or concluded view as to the prospects of Trevor establishing, or the defendants defending, that the transactions were a sham, as contended for by Trevor. What is however significant in my consideration is that the claims made by Trevor and the counterclaims of the defendants arise out of the same factual matrix. This consideration has been recognised as very important on the question of discretion and there are cases to the effect that orders for security are not generally made in such circumstances as a matter of discretion: Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289 at 300. Dalma Formwork (administrators appointed) v Concrete Constructions Pty Ltd [1998] NSWSC 472; Voxson Ltd v McLaughlan's Financial Services Ltd [2007] QSC 83.
[18] Finally, delay is also a relevant consideration. The proceeding was filed on 2 May 2025 and in that month the defendants' solicitors wrote to the plaintiff's solicitors in relation to the issue of security for costs. The application for security was not filed until December 2025 at a time after pleadings closed in September 2025. That period of delay, which in my consideration is not insignificant, was not explained. I do not regard delay as a particularly significant consideration in this case but it is still a relevant consideration which was not addressed in the applicant's evidence in terms of providing an explanation for its existence.
[19] It is not necessary to deal with quantum, given the reasons I have expressed.
[20] The application for security for costs is dismissed.
[21] The Defendants pay the plaintiff's costs of the application to be assessed on the standard basis.
Beynon
Free Choice Master Holdings Pty Ltd & Beynon [2026] QSC 22
(1987) 73 ALR 289