Equititrust Limited v Tucker

Equititrust Limited sought to recover damages against Tucker and others, alleging breaches of fiduciary duty and other breaches of contract. The defendants filed a strike-out application against the plaintiff’s statement of claim, arguing it disclosed no reasonable cause of action. The application was heard by the Supreme Court of New South Wales. The plaintiff delivered a proposed amended pleading on the day of the hearing, addressing some of the relief sought in the application. The application was ultimately dismissed.

The court had to determine whether the applicants or the amending party should bear the costs of the strike-out application, or whether the parties’ respective costs should be their costs in the proceeding. The court noted that the application was made on short notice and without the usual pre-application communications. It was also noted that the plaintiff delivered a proposed amended pleading on the day of the hearing, addressing some of the relief sought in the application. The court held that the application was made without proper consideration of the potential for amendment and that the costs of the application should be borne by the applicants. However, the court also noted that the application was ultimately dismissed, and that the parties’ respective costs should be their costs in the proceeding.

The court ordered that the parties’ costs of the application filed on 24 August 2021 (on behalf of the first and second defendants and first named fifth defendant) are their costs in the proceeding. The court did not order any costs for the other parties involved in the application.