Equititrust Ltd v Tucker

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.