Equititrust Ltd v Tucker

Case [2020] QSC 269

SUPREME COURT OF QUEENSLAND

CITATION:

Equititrust Limited v Tucker [2020] QSC 269

PARTIES:

EQUITITRUST LIMITED (receivers and managers appointed) (in liquidation) on its own account and as trustee of the Equititrust Premium Fund

ACN 061 383 944

(plaintiff)

v

DAVID ROBERT WALTER TUCKER

(first defendant)

TUCKERLOAN PTY LTD on its own account and as trustee of the Tuckerloan Trust

ACN 101 109 157

(second defendant)

DAVID ROBERT WALTER TUCKER and RICHARD TERRICK COWEN 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 7399 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

3 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2020

JUDGE:

Bond J

ORDER:

The orders of the Court are:

1.       In this order, reference to:

(a)     “the Cowen defendants” is a reference to Richard Terrick Cowen and the sixth defendant; and

(b)     “the Tucker defendants” is a reference to David Robert Walter Tucker and the second defendant.

2.       The plaintiff must provide $1,058,000 as security for the Cowen defendants’ costs up to and including the first day of trial.

3.       The plaintiff must provide $935,000 as security for the Tucker defendants’ costs up to and including the first day of trial.

4.       The plaintiff’s application filed 29 August 2019 is dismissed and the security referred to in the previous two orders must be provided by way of one of the following options within 28 days:

(a)     payment into Court;

(b)     payment into the plaintiff’s solicitors’ trust account on the following terms:

(i)      the payment is to be held in the names of the plaintiff and the relevant group of defendants;

(ii)      the payment is to be invested in an interest-bearing account with an Australian bank agreed by the plaintiff and the relevant group of defendants;

(iii)   the payment and any accretions are not otherwise to be dealt with except in accordance with an order of the Court or the agreement of the plaintiff and the relevant group of defendants;

(iv)   the plaintiff shall promptly provide the solicitors for the relevant group of defendants with copies of any statements evidencing the making and investment of the payment; or

(c)     the provision of a bank guarantee in a form acceptable to the Registrar.

5.       I will hear the parties as to the costs of the three applications before me.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – AMOUNT AND NATURE OF SECURITY – where, on a previous application, the plaintiff was ordered to provide security for the defendants’ costs up to the filing of defences – where that security was ordered to be provided by way of payment into Court, payment into a solicitors’ trust account or bank guarantee – where the defendants now apply for security for costs up to the first day of trial – where the plaintiff agrees that further security should be provided, but disagrees as to the quantum…

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AGLC
Equititrust Limited v Tucker [2020] QSC 269
Case
[2020] QSC 269
Decision Date

CaseChat Overview and Summary

The case of Equititrust Ltd v Tucker involves a dispute over the provision of security for costs in civil proceedings in the Supreme Court of New South Wales. The plaintiff, Equititrust Ltd, was previously ordered to provide security for the defendants' costs up to the filing of their defences. The defendants, who are represented in two groups, now apply for security for costs up to the first day of trial. The plaintiff agrees to provide further security but disagrees with the quantum and form of the security. The plaintiff proposes security in the amount of $670,000 per group of defendants, calculated so as not to exceed the funding limit under its litigation funding agreement, and in the form of a deed of indemnity between a foreign third-party insurer of the plaintiff’s litigation funder and the defendants. The defendants object to the form of security proposed by the plaintiff.

The court was required to decide whether the form of security proposed by the plaintiff was adequate and did not impose an unacceptable disadvantage on the defendants. The court considered the nature of the security for costs and the effect of the proposed security on the defendants. The court held that the form of security proposed by the plaintiff was not acceptable, as it did not provide the defendants with the same level of security as the previous security provided by the plaintiff. The court held that the security should be in the form of payment into Court, payment into the plaintiff’s solicitors’ trust account, or a bank guarantee in a form acceptable to the Registrar.

The court ordered that the plaintiff must provide $1,058,000 as security for the Cowen defendants' costs up to and including the first day of trial, and $935,000 as security for the Tucker defendants' costs up to and including the first day of trial. The court dismissed the plaintiff's application and ordered that the security be provided by way of one of the following options within 28 days: payment into Court, payment into the plaintiff’s solicitors’ trust account on certain terms, or the provision of a bank guarantee in a form acceptable to the Registrar. The court will hear the parties as to the costs of the three applications before it.

Orders

Orders of the court

The orders of the Court are:

1. In this order, reference to:

(a) “the Cowen defendants” is a reference to Richard Terrick Cowen and the sixth defendant; and

(b) “the Tucker defendants” is a reference to David Robert Walter Tucker and the second defendant.

2. The plaintiff must provide $1,058,000 as security for the Cowen defendants’ costs up to and including the first day of trial.

3. The plaintiff must provide $935,000 as security for the Tucker defendants’ costs up to and including the first day of trial.

4. The plaintiff’s application filed 29 August 2019 is dismissed and the security referred to in the previous two orders must be provided by way of one of the following options within 28 days:

(a) payment into Court;

(b) payment into the plaintiff’s solicitors’ trust account on the following terms:

(i) the payment is to be held in the names of the plaintiff and the relevant group of defendants;

(ii) the payment is to be invested in an interest-bearing account with an Australian bank agreed by the plaintiff and the relevant group of defendants;

(iii) the payment and any accretions are not otherwise to be dealt with except in accordance with an order of the Court or the agreement of the plaintiff and the relevant group of defendants;

(iv) the plaintiff shall promptly provide the solicitors for the relevant group of defendants with copies of any statements evidencing the making and investment of the payment; or

(c) the provision of a bank guarantee in a form acceptable to the Registrar.

5. I will hear the parties as to the costs of the three applications before me.

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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