New South Wales Court of Appeal CITATION : Public Trustee of Queensland v Spotless Catering Services Pty Ltd & Anor [1999] NSWCA 322 FILE NUMBER(S) : CA 40298/98 HEARING DATE(S) : 21 May 1999 JUDGMENT DATE : 21 May 1999 The Public Trustee of Queensland As Administrator with Will annexed of the Estate of the late Christine Joan Revell (Claimant) PARTIES : Spotless Catering Services Pty Limited t/as Senter Services (First Opponent) Allco Steel Corporation Pty Limited (Second Opponent) JUDGMENT OF : Meagher JA at 15; Sheller JA at 16; Sheppard AJA at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 3487/97 LOWER COURT JUDICIAL OFFICER : P R Bell DCJ Claimant: Mr A Lakeman COUNSEL : First Opponent Mr Sharp Second Opponent: Mr P Jones Claimant: G H Healey & Co SOLICITORS : First Opponent: McCulloch & Buggy Second Opponent: Dunhill Madden & Butler CATCHWORDS : ACTS CITED : Public Trustee Act 1978 (Q) CASES CITED: White v Butt [1909] 1 KB 50 DECISION : Dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40298/98 DC 3487/97 MEAGHER JA SHELLER JA SHEPPARD AJA Friday, 21 May 1999 THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator with will annexed of the Estate of the late Christine Joan REVELL, deceased v SPOTLESS CATERING PTY LTD trading as SENTER SERVICES JUDGMENT 1 MEAGHER JA: I will ask Sheppard AJA to give the first judgment. 2 SHEPPARD AJA: This is an application for leave to appeal from a judgment dated 17 April 1998 of the District Court of NSW (PR Bell DCJ) in which his Honour ordered that security be provided for part of the defendants' ('the opponents') costs. The proceedings were originally commenced by Christine Joan Revell who died. The Public Trustee of Queensland, who is the administrator of her estate, is now the plaintiff. 3 On 16 April 1998 the Public Trustee of Queensland wrote a letter to the solicitors for one of the opponents in which it is said, amongst other things: "It is settled and accepted law in Qld that an executor can not be liable for the liabilities of the estate although there is no express statutory provision stating this. Following [in other words, attached] is a recent article from a Journal dealing with security for costs. At page 88 academic and case authority is quoted in support of this view. The text, Queensland Succession Law by Lee also provides academic support without quoting any case authority or statute." 4 The letter also says that the Public Trustee of Queensland is not a party to the action, rather the deceased estate is, and the Court would have no jurisdiction to make an order against the Public Trustee in his corporate name. 5 I have looked at the text attached to the letter. With respect, it does not seem to me to bear out what the writer of the letter has said, nor can it be right to say that the Public Trustee of Queensland is not a party to the action. He is; his name is part of the title to the proceedings. 6 This matter proceeded before the primary Judge upon the basis that that letter was correct and that there was no liability in the Public Trustee other than to the extent of the assets of the estate for payment of the costs. 7 This matter was in the list in March and again today. All parties and this Court, and for that matter the primary Judge, have proceeded, at least until shortly before lunch today, upon the assumption that the position was as stated in the Public Trustee's letter. 8 For my part, although I cannot claim to have thought about the matter particularly deeply, I did not worry about it, because it was not the subject of any argument and I had thought that there must have been a statutory provision in the Public Trustee Act 1978 (Q) which dealt with the matter. But the letter says that there is not and, from my own cursory examination of the statute, that appears to be so. 9 The order was made by his Honour pursuant to the provisions of Part 40 rule 2(b) of the District Court Rules. It provides that where in any proceedings it appears to the court on the application of a defendant that a plaintiff is suing not for his own benefit but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, the court may if it thinks fit order the plaintiff to give such security as the court thinks fit for the costs of the defendant. 10 The argument so far as it had proceeded concerned the very great delay which it was said had taken place between the commencement of the action and the making of the application for security and the fact that that was compounded by the fact that the matter had proceeded in the absence of any application for security for costs for some five days before the application was made. The explanation was that the case was not anticipated to last as long as it did, the hearing was interrupted by an aborted application for an adjournment made by counsel for the plaintiff on the basis of the answer to a question procured from a witness called by one of the defendants and the fact that the case was then, as his Honour said, likely to last a further three days. The order was not to cover costs for the past days but for the days yet to come but it was claimed that it was a totally wrong exercise of discretion to order security at so late a stage. 11 There was also reference to a line of authority in England culminating in the decision of the Court of Appeal in White v Butt [1909] 1 KB 50 in which it was said that it was inappropriate to seek an order for security for costs against an executor or a trustee of an estate. Those matters were the subject of contention between the parties and were the matters that occupied the hearing time until shortly before lunch time today. 12 It now appears that there is a serious question whether the Public Trustee was right in his assertion that he is not personally liable for costs in circumstances such as exist here. On the basis of what we have read and what has been said to us by counsel for the claimant for leave, who represents the Public Trustee, it would appear to be fairly clear that the statements in the letter are incorrect and that the misapprehension under which people have been, can be sourced to the letter which was written in April last year. 13 In those circumstances, the points which were the subject of the submissions of the parties are dry. They are academic and there is no purpose in our dealing with them. The judgment, leave to appeal against which is sought, and the submissions deal with those matters. We have invited argument upon the question of the correctness of the letter but there seems to have been an unwillingness on the part of counsel for the claimant to give us the assistance which we consider we are entitled to. 14 In the last moment or so, counsel made an application for an adjournment to put on more submissions but was unable to tell us to what those submissions would go. On the basis of the material which we have and the consideration we have been able to give the matter since the matter was first raised and bearing in mind that this is an application for leave and not the hearing of the final appeal, I would content myself by saying that the application seems to be based on a false premise. It raises matters which are academic or hypothetical and in those circumstances the only appropriate course is that leave be refused. In saying that, I do not want to be taken as deciding on any final basis that the proposition referred to in the letter is wrong. All I say at the moment is that it appears to me that it is but I would leave to a later day the question to be argued in another matter, if there be one, when the question can be given more consideration. In the circumstances, I would propose that the application for leave be refused. 15 MEAGHER JA: With the greatest respect, I agree with Sheppard AJA. 16 SHELLER JA: I also agree with Sheppard AJA. 17 MEAGHER JA: The order of the Court is therefore that the application be dismissed with costs. * * * * * * * * * * DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.