Thompson v Cyati[2025] QCA 53

[2025] QCA 53

COURT OF APPEAL

FLANAGAN JA

Appeal No 16656 of 2024

DC No 1202 of 2017

EMMA THOMPSON Appellant/Respondent

v

JULENE FRANCES CYATI Respondent/Applicant

BRISBANE

WEDNESDAY, 26 APRIL 2025

JUDGMENT

FLANAGAN JA:  The respondent to this appeal applies pursuant to rule 722 of the Uniform Civil Procedure Rules Queensland for security for costs in the amount of $22,000.  Now, this Court has a wide and unfettered discretion to order security for costs on an appeal.  An order of this nature is more likely to be given at an appellate level.  Rule 772 is only enlivened when there is an appeal on foot.  Here, a notice of appeal was filed on 24 December 2024.  The appeal is in relation to a judgment of his Honour, Judge Byrne KC in the District Court.

The appellant, Ms Thompson, and the respondent, Ms Cyati, are the children of the male deceased.  The respondent was appointed as the executor of the deceased’s estate.  The appellant, on the other hand, was expressly excluded from benefiting under the deceased’s will.  On 5 April 2017, Ms Thompson applied to the District Court pursuant to section 41 of the Succession Act 1981 (Qld) – the Act – for provision from the deceased’s estate for proper maintenance and support.  That application was heard from 28^th to 30^th of May 2024, and 3 June 2024 before his Honour.  The reasons were published on 29 November 2024.

In determining the application, his Honour applied the two-stage test derived from section 41 of the Act as set out in Singer v Berghouse (1984) 181 CLR 201.  His Honour was not satisfied that the first stage had been made out.  In other words, the lack of any provision to Ms Thompson from the deceased’s estate did not result in an inadequate provision in all of the circumstances.  This was so having regard to Ms Thompson’s financial position at the time of her father’s death, which comprised, according to his Honour, more than $2 million worth of assets, such figure being more than double the value of the estate.

It may be accepted that Ms Thompson’s financial position has considerably changed by the time the trial took place some eight years later.  His Honour recognised the shift in Ms Thompson’s financial position.  Ultimately, however, this could have no bearing on the application of section 41 of the Act, as her financial position was to be assessed as at the date of the death of her father.  Also relevant to his Honour’s determination was Ms Thompson’s strained relationship with the deceased, her overall capacity to work, the fact the deceased had loaned her a little under $200,000 of which no principal or interest was repaid, and her use of, “the proceeding to avenge some perceived wrongs against,” Ms Cyati.  It was therefore unnecessary to consider the second stage of the test.  The application was dismissed on jurisdictional grounds.  Following this, the respondent sought costs, including reserve costs, from the appellant on an indemnity basis for the entire proceeding, or alternatively from 21 November 2023.  The costs application was heard on 12 February 2025.  His Honour ordered the appellant to pay costs on the standard basis until 19 November 2023, and on the indemnity basis thereafter.

On 12 February 2025, the respondent’s solicitor emailed the appellant a letter requesting security for the respondent’s costs in relation to the appeal… And the appellant did not respond to this email or offer any security.  On 13 March 2025, the respondent’s solicitor filed this application.  The next day a copy of the application and the first affidavit of Camille Mary Woolcock, sworn 13 March 2025, was served on the appellant by email.  A Mr Brendan Whelan of Wilson Law was copied to this email following comments made by the appellant to the Court of Appeal registry on 3 March 2025 that she had engaged Mr Whelan.  Mr Whelan had not otherwise filed a notice of appointment of solicitor.

In this correspondence, the respondent solicitor also sought the appellant’s availability for a hearing date.  The appellant again did not respond.  Later that day, the respondent solicitor advised the registry that service had been effected and proposed possible dates for hearing the application subject to receiving confirmation from the appellant.  On 7 March 2025, the appellant advised the registry that she would provide availability as soon as possible.  On 18 March 2025, the respondent’s solicitor requested that the registry allocate a hearing date for the application and outline the dates on which counsel would be available.  That same day, the appellant notified the registry that of the proposed dates, she could be available on 4 April 2025 at the earliest.  Later that day, the registry confirmed that the application would be listed at 9 am on 4 April 2025.

On 19 March 2025, Mr Whelan advised the registry that his firm was not on the record and would not be representing the appellant in the appeal.  On 4 April 2025, I granted Ms Thompson’s application for an adjournment to today’s date.  The adjournment was granted on the basis that Ms Thompson, while having been emailed the respondent’s affidavit material, could not access it.  Ms Thompson was given hard copies of the relevant affidavits on the day the adjournment was granted.

In considering the present application, I acknowledge that the applicant remains self-represented.  This fact does not, however, operate to preclude the making of an order for security for costs.  In terms of the relevant discretionary factors in relation to the discretion to order a security for costs, as Chesterman JA observed in Toms v Fuller [2010] QCA 73 at paragraph 26, “There is no comprehensive list of the factors which might be taken into account on an application for security for the costs of an appeal.”  Nonetheless, a non-exhaustive list of considerations may be gleaned from previous authorities of this court: see Loel v Miller [2017] QCA 203 at paragraphs 2 to 4 per Morrison JA.  See also Wikeley v Kea Investments Ltd [2023] QCA 255 at paragraphs 12 to 13 per Mullins P.

These include (a) the appellant’s prospects of success on appeal; (b) the appellant’s financial position; (c) the fact that the appellant has already had their day in court and lost; (d) the fact the appellants blames her impecuniosity on the respondent; (e) whether an order for security for costs would stifle the appeal; (f) whether there has been any delay in bringing the application; and (g) whether the appeal involves questions of public importance.

The respondent submits that regard may also be had to the prerequisites of discretionary factors which apply to an application for security for costs at first instance as set out in rule 671 and 672 of the Uniform Civil Procedure Rules.  The respondent raises for consideration the enlivening factors of whether the appellant’s address is not stated or is misstated in the originating process, unless there is reason to believe this was done without intention to deceive, and whether the justice of the case requires an order for security to be made.

I will deal with each factor in turn.  First, as to prospects of success.  The proper approach to be applied to an assessment of the appellant’s prospects of suspect was summarised by Davies and Jerrard JJA and Wilson J in Murchie v Big Kart Track Pty Ltd [2002] QCA 339.  Their Honours stated at paragraph 8, “In these circumstances attention must be focused on the plaintiff’s prospects of success on appeal, because the Court will not readily shut out a litigant with potential merit.  Of course, it is not for the Court to prejudge the outcome of the appeal on an application for security for costs, but if her prospects are bleak, as they were described by senior counsel for the defendants, that would be a powerful factor in favour of ordering security.”

This factor cannot, however, undermine the purpose of security for costs.  Applegarth J articulated this point in Mbuzi v Hall [2010] QSC 359, stating at paragraph 106: “It is important that applications for security are not used as a means to strike out applications for leave to appeal that have poor prospects of success, or as the equivalent of an application for summary judgment.”  The court is not in a position to carry out a detailed assessment of the merits of Ms Thompson’s appeal.  All that is required is a preliminary analysis of the appellant’s prospects of success.

On appeal, Ms Thompson challenges the findings of Judge Byrne KC on the basis that there has been: (a) an error in the exercise of judicial discretion causing a miscarriage of justice; (b) denial of procedural fairness and natural justice; (c) a failure to properly consider relevant information and/or reliance upon incorrect information; (d) actual and/or apprehended bias; and (e) error for fact of mistaken conclusions.  None of these grounds raise a jurisdictional challenge to his Honour’s findings at first instance.

It is difficult to identify on a preliminary basis an error in the exercise of judicial discretion in circumstances where the first stage of the test in Singer v Berghouse leaves no room for discretion.  The question is simply whether the Court’s jurisdiction has been enlivened.  Having read the material filed in this application and the reasons of the primary Judge as well as the notice of appeal and relevant submissions, it is sufficient to conclude that the appellant’s prospects of success may be described as “poor.”

The second consideration is the appellant’s financial position.  As to the appellant’s financial position, the issue that this court must consider is whether, if unsuccessful on the appeal, Ms Thompson will be able to satisfy a cost order in favour of the respondent.  This court has previously characterised impecuniosity as a “persuasive” reason in favour of ordering security for costs.  See Ivory v Telstra Co Ltd [2001] QCA 490, and Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 at paragraph 9.

There has been some ambiguity surrounding the true nature of the appellant’s financial situation.  In her outline of argument in respect of the appeal, the appellant merely notes that, “They have no financial resources.”  See appellant’s outline of argument at paragraph 31.  The affidavit of Camille Mary Woolcock sworn and filed on 13 March 2025 and the respondent’s written submissions filed on 31 March 2025 shed some light on the appellant’s financial position.  Is it not established whether the appellant owns any real property in Queensland, as she has made closing submissions at trial to the effect that she has been discharged from bankruptcy.  She is reliant on Centrelink payments which at the time of the trial were in the amount of $140 per week and a student stipend for income.

During the trial, Ms Thompson categorised herself as “Unemployable,” a characterisation which his Honour accepted “As a general statement of practicality.”  But from this, it may be inferred that the appellant is unlikely to improve her financial position by way of future employment.  I note that in her supplementary written submissions at paragraph 19, the appellant asserts that she purchased unit 3/40 Glen Road, Toowong, but there is no evidence detailing this purchase or any financial details, including any mortgage or loans in relation to this purchase.  I note in oral submissions Ms Thompson referred to litigation in both the Federal Court and the Supreme Court of Queensland which seeks to challenge the transfer of this unit by the trustee in bankruptcy to another.  I further note that Ms Thompson asserts that this transfer was not to another, but rather to the trustee in bankruptcy himself.

In her written submissions in opposing the application for security for costs at paragraph 5, the appellant refers to a number of other relevant considerations in determining her present financial position.  She states that there are funds exceeding the $22,000 sought by the respondent, which “Have been invalidly withheld by the trustee since 2 July 2023,” when the appellant was discharged from bankruptcy.  This is an assertion that the amount of $22,000 is held presently by the trustee in bankruptcy rather than by the appellant.  The inference is that the appellant does not have access to this asserted sum of $22,000.

Secondly, at paragraph 5(e) she refers to a solicitor who has failed to return the sum of $24,000 that the appellant paid prior to proceedings in BD1202 of 2017.  The difficulty again in relation to this assertion is that it is clear from the appellant’s own submissions in paragraph 5(e) that she is not presently in possession of this $24,000, but it is the subject of a dispute being held by a solicitor.

Two other matters that the appellant refers to is the fact that she holds $77,000 in superannuation, and that in relation to a loan to HELP  of $71,000 she is not required to pay this loan whilst she is unemployed.  The appellant asserts from the Bar table that having turned 60 in October 2024, she is entitled to access her superannuation.  As I have already indicated as to the loan of $71,000, she states that she has no present requirement to repay this loan.  Whether or not the appellant has access to $77,000 in superannuation does not assist this Court in assessing her present financial situation.

This is because his Honour Judge Byrne KC has already made a cost order in the trial proceedings.  Whilst those costs are yet to be assessed the order stands.  If the appellant is unsuccessful on appeal, she will be liable not only for a cost order in relation to the appeal proceedings, but will remain liable in relation to the cost order made by his Honour.  At best, the assertions of the financial position of the appellant leave this court in a situation where it can have no confidence that the appellant is in a position to meet any cost order if made on the appeal.  Whilst the respondent makes other references to other cost orders in separate proceedings, it is unnecessary for me to consider those cost orders beyond the cost order made by Judge Byrne in relation to the present trial proceedings.  In summary, on the evidence there are considerable doubts that the appellant has the financial means to satisfy any cost order.

The next consideration is the fact that the appellant has already had their day in court and lost.  The appellant has been unsuccessful at first instance.  She has had her day in court, a factor which in its effect “enables the court to more readily come to the view that security should be ordered than not”: see Bampton v Vourlidis [2024] QCA 44 at paragraph 28 per Morrison JA.  The force of this consideration becomes even more powerful when one considers the appellant’s litigation history in respect of the estate.  In addition to the section 41 application the subject of the appeal, Ms Thompson brought two other proceedings against the estate in the Supreme Court of Queensland.  In all matters, Ms Thompson has lost and has costs awarded against her and, as already observed, in relation to the trial proceedings before his Honour the appellant is yet to satisfy this cost order.

The next factor to consider is whether the appellant blames her impecuniosity on the respondent.  There is simply no evidence that the estate caused the appellant’s present impecuniosity.

The next issue is whether an order for security for costs would stifle the appeal.  As to whether an order for security for costs would stifle the appeal, this becomes more significant where the appellant has at least a fair, arguable case: see Nestle Australia Pty Ltd v Om Business Group Pty Ltd [2021] QCA 208.  Having concluded that the appellant’s prospects of success are poor, the prospect that the order would stifle the appeal should not weigh heavily in the balance, but it is a matter that I do take into account in exercising the discretion.

As to whether there has been any delay in bringing the present application, I note that the notice of appeal was filed on 24 December 2024.  The present application was filed on 13 March 2025 after the time for the appellant to respond to the respondent’s request for security had expired.  While there has been some delay in bringing the present application, when viewed against the date for filing the notice of appeal, any concerns this may raise are alleviated by the fact that the appeal has not in some senses substantially progressed.  An appeal record book is yet to be prepared and the appellant is yet to file a response to the respondent’s appeal submissions.  There is no suggestion that the present appeal concerns any questions of public importance which ought to be addressed.

In support of the application, the respondent refers to the appellant’s address for service.  The appellant has not provided a physical address for service other than the email address and care of 24 Ebor Street, Toowong.  The material shows that Ms Thompson has been receiving all email correspondence from both the respondent and the registry, and from the Bar table she asserts that she is receiving email correspondence from others.  The listed address is that of the Australian Post Business Centre at Toowong.  Throughout the course of this matter, there have been concerns surrounding the appellant’s evidence and extent of disclosure: see the observations of Judge Byrne KC in Thompson v Cyati [2024] QDC 205 at paragraphs 12 to 26 and 135.  The appellant’s failure to disclose a proper residential address or business address is one more factor, which according to the respondent creates uncertainty surrounding the appellant’s ability to satisfy a potential cost order made against her in the appeal.

The appellant submits, however, that through the address given for the Australian Post Business Centre Toowong, she has been able to receive documents that have been served in other proceedings, and in this respect from the Bar table, she sought to tender an envelope and documents she has received by those documents having been mailed to care of 24 Ebor Street, Toowong.  In my view, this factor raised by the respondent is neutral and I do not take it into account in exercising my discretion.

I turn then to the interests of justice.  The estate has already incurred significant cost in defending both the proceeding before the primary Judge and the two Supreme Court proceedings, and despite cost orders in its favour for each matter has not received any payment from the appellant.… I note the appellant’s submissions that any cost order in relation to previous proceedings are now past the date in terms of being able to be assessed.  Further, as to the interests of justice, in circumstances where there is considerable doubt that the appellant has the financial means to meet any cost order, it is, in my view, in the interests of justice that an order for security for costs be made. 

No one consideration is absolute.  The court must weigh all relevant factors when deciding whether to order security for costs.  When one looks at the totality of these factors, which I have taken into account in exercising my discretion as indicated, one can have no confidence that the appellant has the means to meet a cost order, and in this respect it should also be noted that the there is already a cost order made in relation to the trial of this matter.  It follows that an order for security for costs should be made.

I turn then to the quantum of such security.  The Court’s discretion to order security for costs extends to determining the amount of security to be paid.  While such discretion is wide, its exercise should not provide for greater security than is absolutely necessary.  This is because an order for security for cost is not intended to operate as an order indemnifying the applicant.  The respondent relies on the affidavit of Ms Woolcock filed 13 March 2025, which estimates that the cost of the appeal will likely be in the amount of $27,304.  This covers solicitors fees of $13,304, assuming a 60 to 70 per cent recovery of costs on the standard basis, and $14,000 for counsel’s costs, assuming a 100 per cent recovery.

The respondent has reduced the amount to $22,000, taking into account what would be recoverable, assuming costs to be awarded on the standard basis.  In circumstances where on the material it is difficulty to ascertain the appellant’s true financial position, and acknowledging that she is self-represented, in order to reduce the potential for stifling the appeal, I would reduce this amount further to $15,000.

The orders I make are as follows:

I direct that:

1. The hearing date for the appeal, 6 May 2025, be vacated.

I make the following orders:

1. Pursuant to rule 772 of the Uniform Civil Procedure Rules 1999 (Qld), the appellant must provide security for the respondent’s cost of the proceeding in Appeal No 16656 of 2024 in the amount of $15,000 in a form acceptable to the registrar of the court by 4 pm, 12 May 2025.
2. The appeal is stayed pending provision of such security.
3. Failing the furnishing of such security by that date and time, the appeal will stand dismissed with costs without further order.
4. The cost of this application will be costs in the appeal.