Equititrust Limited v Tucker

Case [2019] QSC 51

SUPREME COURT OF QUEENSLAND

CITATION: Equititrust Limited v Tucker and Others [2019] QSC 51
PARTIES:

EQUITITRUST LIMITED (RECEIVERS AND MANAGERS APPOINTED) ACN 061 383 944 ON ITS OWN ACCOUNT AND AS TRUSTEE OF THE EQUITITRUST PREMIUM FUND

(Plaintiff)

v

DAVID ROBERT WALKER TUCKER
(First Defendant)

TUCKERLOAN PTY LTD ACN 101 109 157 ON ITS OWN ACCOUNT AND AS TRUSTEE OF THE TUCKERLOAN TRUST

(Second Defendant)

DAVID JOHN KENNEDY

(Third Defendant)

MS ASIA DEBT ACQUISITION LIMITED

(Fourth Defendant)

DAVID ROBERT WALTER TUCKER, RICHARD TERRICK COWEN, DAVID HEINER SCHWARZ, JUSTIN OTTO MARSCHKE AND DANIEL GREGORY ARTHUR DAVEY CARRYING ON THE PRACTICE AS PARTNERS UNDER THE NAME TUCKER & COWEN

(Fifth Defendants)

TCS SOLICITORS PTY LTD ACN 610 321 509

(Sixth Defendant)

FILE NO/S:

BS No 7399 of 2018
DIVISION: Trial Division
PROCEEDING: Application
DELIVERED ON: 12 March 2019
DELIVERED AT: Brisbane
HEARING DATE: 14 February 2019
JUDGE: Bowskill J
ORDER: Direct that the parties confer with a view to providing a draft order reflecting the decision of the court in relation to the strike out applications, and the applications for security for costs. Failing agreement, the matter will be listed for further hearing in relation to the appropriate orders. I will also hear the parties as to costs.
CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR
DEFENCE – applications to strike out the claim and statement of claim in their entirety, or alternatively parts of them, on the basis no reasonable cause of action disclosed or that the pleading has a tendency to prejudice or delay the fair trial of the proceeding

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – AMOUNT AND NATURE OF SECURITY – where the

parties agree that security for the applicant/defendants’ costs is to be provided, but are in dispute as to the amount of security to be provided for two defendants, and as to the form of security to be provided – where the plaintiff proposed security in the form of a deed of indemnity between a foreign third party insurer of the plaintiff’s litigation funder and the applicants for security – whether the form of security proposed is adequate and does not impose unacceptable disadvantage on the applicants

Corporations Act 2001 (Cth) s 183

Legal Profession Act 2007 (Qld) s 249
Uniform Civil Procedure Rules 1999 (Qld) r 171, r 670, r 673

Adsteam Building Industries Pty Ltd v Queensland Cement and Lime Company Ltd (No 4) [1985] 1 Qd R 127

Allen Dodd (as trustee for the Dodd Superannuation Fund) v Shine Corporate Ltd [2018] QSC 040

Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252

DIF III Global Co-Investment Fund v BBLP LLC [2016] VSC 401

Lanai Unit Holdings Pty Ltd (as trustee of Lanai Unit Trust) v Mallesons Stephen Jacques (a firm) [2016] QSC 002 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 Logan APZ Pty Ltd…

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AGLC
Equititrust Limited v Tucker [2019] QSC 51
Case
[2019] QSC 51
Decision Date

CaseChat Overview and Summary

Equititrust Limited brought proceedings against Tucker and others, alleging breaches of fiduciary duty and other claims. The defendants sought to have the claims struck out, arguing that they disclosed no reasonable cause of action or would prejudice or delay the fair trial of the proceeding. The defendants also challenged the form and amount of security for costs that the plaintiff proposed. The case was heard in the Supreme Court of New South Wales.

The court considered whether the plaintiff’s claims were legally sufficient and whether the form of security for costs proposed was appropriate. The defendants argued that the plaintiff's claims were speculative and based on insufficient facts. They also contended that the plaintiff’s proposed security for costs, a deed of indemnity involving a foreign third party insurer, was not acceptable as it imposed an undue burden on the defendants.

The court held that while some of the claims may not disclose a reasonable cause of action, others were sufficient to proceed. The court further found that the plaintiff's proposed security for costs was acceptable but noted that the parties should attempt to agree on a more suitable amount. The court directed the parties to confer and draft an appropriate order reflecting these decisions, with a further hearing scheduled if they could not agree. The court also indicated it would hear submissions on costs.

Pending agreement, the parties are directed to confer with a view to providing a draft order reflecting the decision of the court in relation to the strike out applications, and the applications for security for costs. If the parties cannot agree, the matter will be listed for further hearing. The court will also hear the parties as to costs.

Orders

Orders of the court

Direct that the parties confer with a view to providing a draft order reflecting the decision of the court in relation to the strike out applications, and the applications for security for costs. Failing agreement, the matter will be listed for further hearing in relation to the appropriate orders. I will also hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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