FNH United Pty Ltd v United Petroleum Franchise Pty Ltd (Security for costs)
[2025] VSC 190
•11 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST
S ECI 2022 04261
| FNH UNITED PTY LTD (ACN 639 802 798) & ORS | Plaintiffs |
| (according to the Schedule) | |
| v | |
| UNITED PETROLEUM FRANCHISE PTY LTD (ACN 127 764 989) & ORS | Defendants |
| (according to the Schedule) |
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JUDGE: | Attiwill J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April 2025 |
DATE OF JUDGMENT: | 11 April 2025 |
CASE MAY BE CITED AS: | FNH United Pty Ltd v United Petroleum Franchise Pty Ltd (Security for costs) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 190 |
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PRACTICE AND PROCEDURE – Security for costs – Group proceeding – Discretionary factors to be taken into account – Impecunious plaintiffs – Whether orders for security likely to stultify proceeding – Plaintiffs failed to establish stultification – Security ordered – Quantum of security — Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 62 — Corporations Act 2001 (Cth) s 1335 — Supreme Court Act 1986 (Vic) s 33ZF – Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, Stuart v Said (2021) 65 VR 50, Madgwick v Kelly (2013) 212 FCR 1, Goodwin v HBCA Pty Ltd [2022] FCAFC 166, General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 2) [2023] FCA 556, One Lake Macquarie Pty Ltd (In Liquidation) v Athena Rose Capital Pty Ltd [2025] NSWSC 177, FNH United Pty Ltd v United Petroleum Franchise Pty Ltd [2024] VSC 522, considered and applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms E Levine | T F Grundy Lawyer (as town agents for Levitt Robinson) |
| For the First and Third Defendants | Mr S Rosewarne KC Ms A Batrouney | King & Wood Mallesons |
For the Second Defendant | Mr N P De Young KC | Seyfarth Shaw Australia |
HIS HONOUR:
A. INTRODUCTION
The first defendant (UPF) and third defendant (UP) (together, the United Defendants) seek an order that the plaintiffs, or alternatively their legal representatives, provide security for the United Defendants’ costs of the proceeding up to and including the first case management conference after the filing of their defence in an amount of $2,300,000. The second defendant, Mr Avi Silver, seeks an order that the plaintiffs, or alternatively their legal representatives, provide security for his costs of the proceeding up to and including the filing of his defence in an amount of $1,400,000. For the reasons that follow, I will exercise my discretion and order the plaintiffs to provide security in the amounts sought by the defendants.
B. BACKGROUND
This proceeding is a group proceeding under Part 4A of the Supreme Court Act 1986 (Vic) brought on behalf of all persons who:
(a) at any time from 19 October 2016 and 20 October 2022, were or commenced to be a franchisee in the ‘United Network’ pursuant to a standard form franchise agreement with UPF (each such person being a Franchisee) or a guarantor of a Franchisee’s obligations under such an agreement (each such person being, as the context requires, a Guarantor of a Franchisee); or
(b) at any time from 23 September 2018 to 23 September 2024, were or commenced to be a commission agent in the United Network pursuant to a standard form commission agency agreement with UP (each such person being a Commission Agent) or a guarantor of a Commission Agent’s obligations under such an agreement (each such person being, as the context requires, a Guarantor of a Commission Agent).
The first plaintiff, FNH United Pty Ltd, was incorporated to participate in a franchise agreement with UPF under which it operated a United Network petrol station in Cranbourne South, Victoria. That franchise was terminated on 25 February 2021. The second plaintiff, Mr Fahim Istanikzai, is the sole director and shareholder of FNH United Pty Ltd, and guaranteed that company’s obligations to UPF. The third and fourth plaintiffs, Messrs Jigarkumar Bharatbhai Patel and Jaydeep Devijibhai Bhatti, operated a United Network petrol station at Wallan, Victoria, pursuant to a franchise agreement with UPF. Messrs Patel and Bhatti were the franchisees under that agreement in their capacities as trustees of the JJ Unit Trust. Messrs Patel and Bhatti also personally guaranteed the obligations of the franchisee under that agreement. That franchise was terminated on 26 January 2021.
The fifth plaintiff, Yug Sharma Pty Ltd, was incorporated for the purpose of entering into a commission agency agreement with UP pursuant to which it operated a United Network petrol station in Heathcote, Victoria. The fifth defendant exited these arrangements on or about 18 October 2022.
The United Defendants are companies within the ‘United Petroleum’ group of companies. UPF is the entity which acts as the franchisor in relation to the United Network sites. UP is the entity which contracts with Commission Agents within the United Network. Mr Silver is a director of each of the United Defendants.
In broad terms, the plaintiffs claim, among other things, that the United Defendants engaged in misleading or deceptive conduct and/or unconscionable conduct with respect to the installation of the ‘Pie Face’ franchise into sites operated by group members, as well as the allocation of Pie Face stock to those sites. It is alleged that group members suffered loss as a consequence of that wrongdoing, and that they would not have transacted with the United Defendants at all had they been fully informed with respect to the impugned arrangements. The allegations against Mr Silver are of knowing involvement in the United Defendants’ contraventions of the Competition and Consumer Act 2010 (Cth) sch 2.
The proceeding was issued on 21 October 2022 on behalf of all Franchisees and their Guarantors with UPF and Mr Silver named as defendants. Mr Silver, on 12 December 2022, and UPF, on 22 May 2023, filed summonses seeking security for their costs of the proceeding. Those applications were listed before the Honourable Associate Justice Efthim and heard by his Honour on 16 and 29 August 2023. On 30 October 2023, his Honour ordered that the defendants’ applications be dismissed. On 29 November 2023, his Honour ordered Mr Silver to pay the plaintiffs’ costs of and incidental to the summons filed on 12 December 2022 on a standard basis, to be taxed in default of agreement. On 15 December 2023, his Honour ordered UPF to pay the plaintiffs’ costs of and incidental to the summons filed on 22 May 2023 on a standard basis, to be taxed in default of agreement. By notices of appeal filed on 10 and 13 November 2023 respectively, Mr Silver and UPF appealed the decision of the Associate Judge to dismiss their applications for security for costs. The Court heard the appeals on 9 and 10 April 2024.
On 26 June 2024, the Honourable Justice Nichols, the managing judge in this proceeding, made orders that, among other things, the plaintiffs have leave to file and serve an amended writ and statement of claim effecting the joinder of Yug Sharma Pty Ltd as the fifth plaintiff and UP as the third defendant. The amended pleading was filed on 8 October 2024.
On 30 August 2024, I gave judgment on the appeals of UPF and Mr Silver (Appeal Judgment) and made orders that, inter alia, the decision and orders of the Honourable Associate Justice Efthim be set aside and the applications be heard afresh before me. On 30 September 2024, Mr Silver filed an amended summons seeking security for his costs. Shortly thereafter, on 7 October 2024, the United Defendants filed an amended summons for security. Pursuant to an order made on 10 September 2024, the plaintiffs were required to file their material in opposition to the defendants’ applications by 28 October 2024. This did not occur until 22 November 2024. On 3 December 2024 the Court made orders by consent that, inter alia, the plaintiffs be granted leave, nunc pro tunc, to file their affidavit material by 22 November 2024. Those orders also provided that ‘[t]he plaintiffs must not rely upon any further evidence in relation to the defendants' applications for security for their costs of the proceeding without leave of the Court’.
Mr Silver, on 20 December 2024, and the United Defendants, on 31 January 2025, initiated applications to strike out parts of the plaintiffs’ amended pleading.
On 21 February 2025, the Court heard and determined applications by the plaintiffs for leave to file additional evidence in relation to the defendants’ applications for security as well as a short adjournment of the hearing of the applications in order to accommodate this step. The plaintiffs sought these indulgences because they wished to lead further evidence of their attempts to obtain funding and the financial circumstances of group members. The plaintiffs’ counsel accepted at that hearing that efforts to obtain litigation funding may not be resolved by the adjourned hearing date but said: ‘we will live with what we have put on by that time’. In the result, the Court granted the plaintiffs’ applications and made orders that, inter alia, the plaintiffs have leave to file any further evidence by 21 March 2025 and the hearing of the defendants’ applications was adjourned to 1 April 2025.
The plaintiffs have still not formulated a final version of the statement of claim. On 27 March 2025, almost 30 months after commencing the proceeding, the plaintiffs filed an amended writ and a document tiled ‘Minute of Proposed Further Amended Statement of Claim’ that identifies substantial proposed amendments to the pleading. On 31 March 2025, the plaintiffs’ solicitors informed the defendants’ solicitors that the plaintiffs wished to make some further amendments to the proposed further amended statement of claim which was filed and served on 27 March 2025, principally to refine the claims concerning unconscionability, unfair contract terms and restitution. The plaintiffs’ solicitors stated that those amendments would be provided to the defendants on 9 April 2025. Accordingly, at the date of the hearing of these applications, that had not been attended to. The strike-out applications remain to be determined and the defendants are yet to file any defences in the proceeding.
C. APPLICABLE LAW
The Court has jurisdiction to order security for costs pursuant to Order 62 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules), s 1335(1) of the Corporations Act 2001 (Cth) (Corporations Act), s 33ZF of the Supreme Court Act and also in the exercise of its inherent jurisdiction.[1] Rule 62.02(1) of the Rules relevantly provides:
[1]Stuart v Said (2021) 65 VR 50, 51–2 [5] (Maxwell P and McLeish JA) (Stuart), citing Von Marburg v Aldred (No 3) [2017] VSC 146, [39] (Derham AsJ).
62.02 When security for costs may be ordered
(1) Where—
(a) the plaintiff is ordinarily resident out of Victoria;
(b)the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues, not for the plaintiff's own benefit, but for the benefit of some other person, and there is reason to believe that the plaintiff has insufficient assets in Victoria to pay the costs of the defendant if ordered to do so;
…
(f) under any Act the Court may require security for costs—
the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against that defendant be stayed until the security is given.
…
Section 1335(1) of the Corporations Act provides:
1335 Costs
(1) Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.
Section 33ZF of the Supreme Court Act provides:
33ZF General power of court to make orders
In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.
The Court’s power to make an order for security for costs under s 33ZF of the Supreme Court Act or in the inherent jurisdiction may be exercised in furtherance of the interests of justice according to circumstances of the case.[2]
[2]Stuart (n 1) 59 [35] (Maxwell P and McLeish JA).
Where the jurisdiction is enlivened, the Court has a broad and unfettered discretion to make an order for security for costs. This discretion must be exercised judicially having regard to the relevant factors arising in the circumstances of the case. The party seeking security has the burden of persuading the Court that such an order should be made.[3] There are, however, certain discretionary factors capable of weighing against an order for security which, if they are to be relied upon, must be established by the party resisting security. These include, relevantly upon these applications, the plaintiffs’ submission that orders for security would stultify the proceeding and that the plaintiffs’ impecuniosity was caused by the defendants.[4]
[3]Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, 383 [20] (Buchanan JA) (Livingspring).
[4]Ibid 383–4 [21]–[22].
Recently, Derrington J observed in It’s Eco Pty Ltd v BPS Financial Ltd:[5]
3.As a preliminary issue it is appropriate to note that Ms McManus is an individual and, so it might be assumed, will be many of the members of the class on whose behalf the action is being conducted. As a general rule orders for security for costs have not been made against individuals in “bilateral litigation” … and there are good reasons of principle as to why that is so. However, those principles are inapt in the context of the modern phenomena of class actions ... It necessarily creates asymmetrical opportunities for the recovery of costs in class actions. On one side of the record the applicants usually have recourse against the respondents or their insurers to substantial recovery in respect of their own claims and the claims of others as well as indemnity, either partial or whole, in respect of their costs. Those costs are usually massively increased because the litigation is being carried on for the benefit of a large number of class members or, perhaps more accurately, that is the proffered reason for the increase. In particular, a regular feature of class actions is the inordinate amount claimed for undertaking disclosure the cost of which, so it is said, is increased due to the large number of class members. On the other side of the litigation, the respondents are limited to recovering costs from the lead applicants to the extent to which their assets permit. This is an important contextual issue in which the discretion to order security for costs in class actions is to be exercised and it is more than sufficient to displace the Court’s natural reluctance to decline to order security for costs against individual litigants. Indeed, the fact that an impecunious individual brings a representative proceedings on behalf of a number of represented persons may well be a significant factor in favour of making an order for the provision of security.
…
38.Although it is not necessary to decide, there are strong policy reasons for Courts adopting a predisposition in favour of making an order for security for costs in class actions where the lead applicants are impecunious in the sense that they are not in a position to meet an adverse order for the costs of the application. Not only do the lead applicants seek to recover an amount which is, in terms of quantum, usually more for the benefit of others than themselves, they incur costs vastly in excess of the amount which is usually incurred in bilateral litigation. This latter point is significant. In the course of class action litigation, the costs incurred by the lead applicants include the costs claimed by their solicitors in dealing with the members of the class, including advertising the class action, contacting the potential class members, obtaining information from them, and providing them with details about the litigation. The size of discovery and the cost involved in it are greatly increased by reason of the existence of the class members. Experience reveals that the fees generated by the applicants’ solicitors are greater by orders of magnitude than those which might be incurred in the course of ordinary litigation and the costs of dealing with the class members is provided as the justification for it. It follows that, although the lead applicants are the only persons against whom a costs order might be made, the litigation is carried on for the benefit of others in respect of whom substantial costs are incurred, and which costs may be recovered from the respondents. Although it is said that there is a relative passivity to the role of the class members, that does not alter the fact that the costs of the proceedings are greatly increased by reason of their presence.
39.Necessarily, such circumstances strengthen the justification for making an order for security for costs as, not only is the action carried on for the class members who might recover judgment, additional costs are incurred for their benefit, yet they remain immune from an adverse costs order. As this particular point was not raised in the course of the hearing, it is not one which is taken into account in the exercise of the discretion.[6]
[5][2022] FCA 842.
[6]Ibid [3], [38]–[39] (citations omitted).
This is a large-scale commercial group proceeding in which the claims against the defendants are attended by considerable factual and legal complexities. The defendants have incurred and will incur substantial costs in defending the proceeding. In addition, the Court has already made orders that the plaintiffs pay the costs of the defendants upon some interlocutory applications. It was accepted by all parties that the plaintiffs are impecunious and that, if the defendants are successful, the plaintiffs will almost certainly be incapable of satisfying any costs orders made in favour of the defendants. The relevant evidence concerning the financial circumstances of the plaintiffs is carefully set out in much detail in the plaintiffs’ submissions. The plaintiffs accepted that their impecuniosity in the present circumstances is relevant to the question of jurisdiction. There was no issue between the parties as to jurisdiction. The plaintiffs did not dispute that the Court has jurisdiction. As a result, I find that the Court has jurisdiction to order security in this proceeding.
D. DISCRETIONARY FACTORS
Plaintiffs are impecunious
As I have just said, this is a large-scale commercial group proceeding in which, if the defendants are successful, the plaintiffs will not be capable of paying the costs incurred by the defendants. This is a significant factor in favour of an order for security.
Stultification
Submissions
The plaintiffs submitted that an order for security would stultify the proceeding, ‘shutting out the [plaintiffs] and group members from advancing claims through the vehicle of a group proceeding’. This was the plaintiffs’ primary submission in opposition to security. The plaintiffs submitted that this was established by the following:
(a) The plaintiffs are impecunious.
(b) The plaintiffs have attempted on numerous occasions to secure litigation funding ‘but none of these attempts has, to date, resulted in third party funding being obtained’.
(c) The question of the group members’ capacity to contribute to security is not relevant. Even if it is relevant, the evidence weighs against a finding that the group members have capacity to pay the security sought.
(d) The plaintiffs’ claims have reasonable prospects of success.
The plaintiffs relied, inter alia, upon the affidavits of Ms Susan Doherty, Special Counsel at the plaintiffs’ firm of solicitors, in which she gave evidence of the plaintiffs’ attempts to obtain funding including a summary as follows:
(a) The plaintiffs originally sought funding from 22 funders and of those none agreed to fund the proceeding.
(b) The plaintiffs made follow-up requests to 17 funders on 6 September 2024 (i.e. after the grant of leave to the plaintiffs to join UP as a party to the proceeding) and, of those funders:
(i) 12 have confirmed their decision not to fund the proceeding; and
(ii) 3 have not responded to the request or follow-up.
(c) There are 4 funders with whom the plaintiffs remain engaged, namely:
(i) the plaintiffs await responses from Omni Bridgeway and Galactic Litigation Partners (Galactic); and
(ii) Litigation Lending Services and Golden Crane await the provision of an opinion of senior counsel.
The plaintiffs submitted that Ms Doherty could not depose to the likelihood of litigation funding in circumstances where two funders have said they require advice from senior counsel.
The plaintiffs also further submitted that:
(a) the plaintiffs are required to establish ‘reasonable action or efforts to obtain commercial litigation funding and the likelihood that it’s not available’ and that ‘it’s really not about certainty, it’s about likelihood’;
(b) stultification is ‘likely’;
(c) there is no ‘certainty’ as to the positions of Golden Crane or of Litigation Lending Services until the advice of senior counsel is obtained;
(d) the funders with whom the plaintiffs are continuing to engage have not ‘presently unequivocally said … no’ and their position is ‘uncertain’;
(e) the Court cannot ‘be satisfied that there is a likelihood that litigation funding will be available’ and ‘at present … there is no likelihood of litigation funding’;
(f) there is uncertainty around the provision of funding and, in the absence of a likelihood that funding will be available, this weighs in favour of a finding of stultification and against the grant of security;
(g) there is at least a ‘real prospect’ of stultification; and
(h) the availability of commercial litigation funding is uncertain and there is a real risk it will not be available and, as a result, there is a real risk or prospect that the proceeding will be stultified if security is ordered.
The plaintiffs submitted that the defendants were seeking to impose a standard of perfection in relation to how much must be done by the plaintiffs in order to discharge their burden with respect to stultification.
The defendants submitted that the evidence relied upon by the plaintiffs is inadequate to demonstrate that reasonable attempts have been made to obtain litigation funding. They submitted that the reasons for some funders declining to fund the proceeding are not apparent and, accordingly, the plaintiffs have failed to adduce cogent evidence which demonstrates that they cannot reasonably obtain litigation funding. The defendants also submitted that the plaintiffs have failed to establish that it is likely that commercial litigation funding will not be available. They relied upon the evidence, in particular, concerning the four funders who were still considering the matter. They also submitted that the financial circumstances of group members are relevant and that the plaintiffs have failed to establish that it is likely that funding will not be available from the group members.
Finally, the United Defendants relied upon an article published by Lawyerly concerning comments by Mr Stewart Levitt, of the plaintiffs’ firm of solicitors, concerning the availability of litigation funding made in the aftermath of the hearing of the plaintiffs’ applications on 21 February 2025. Relevantly, it is stated in the article:
Stewart Levitt from Levitt Robinson said that the firm has so far been funding the case itself out of compassion for the class members but is now close to obtaining litigation funding.
The United Defendants submitted that this points against any finding that litigation funding is not available. The plaintiffs did not object to the receipt of this evidence in these applications but said that it is hearsay, does not take the form of a direct quote, and is undated and, accordingly, should be given limited weight.
Consideration
There was no dispute that the plaintiffs bear the onus of establishing stultification.[7] As observed by Allsop CJ in All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Australia Limited (All Class):[8] ‘A powerful factor weighing against the grant of an order for security for costs is whether such an order is likely to prevent a litigant from continuing with the proceeding’.[9] This is a commercial class action in which individual plaintiffs are bringing claims against the defendants for their own benefit and for the benefit of others, namely the group members. In Madgwick v Kelly (Madgwick),[10] Allsop CJ and Middleton J said:
77.... The applicants adduced no evidence as to whether litigation funding had been sought; and, if not, why not; and, if so, with what result. The costs agreements contemplated the possibility of litigation funding at a later stage, after a (presumably unsuccessful) mediation. Presumably, the introduction of such an external commercial funder would reduce the available funds for group members on success. That would be a relevant commercial consideration. There may be others. The evidence was silent on the matter. We should not be taken as advocating a rule that a step such as the retention of litigation funding should always be taken to avoid an order for security. This, however, when all is said and done, is a piece of commercial litigation. Investors with sufficient income or assets to protect entered commercial arrangements, many for hoped for taxation advantages. They now seek to engage in commercial litigation to repair perceived wrongs attending the entry into the arrangements. It is not unreasonable to want to understand, in the balancing of the interests of the parties, what has been done, if anything, about commercial funding of the litigation. Without that knowledge, at least in a case such as this, one cannot conclude that the proceedings would be stifled by any order for security.
78.These considerations in part underpin our conclusion that the primary judge could not be satisfied that the litigation was likely to be stifled, in the absence of any information about litigation funding, other than the fact that there was none on foot.[11]
[7]FNH United Pty Ltd v United Petroleum Franchise Pty Ltd(Appeals - Security for costs) [2024] VSC 522, [19] and [61] (Attiwill J) (Appeal Judgment). See also Livingspring (n 3) 383–4 [22] (Maxwell P and Buchanan JA); Troiano v Voci (2019) 61 VR 511, [24] (Riordan J).
[8][2020] FCA 840 (All Class).
[9]Ibid [48] (emphasis added).
[10](2013) 212 FCR 1 (Madgwick).
[11]Ibid 19 [77]–[78].
In General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 2) (General Trade Industries),[12] Derrington J said:
167… As a general proposition, where it is alleged in commercial litigation that an order for security for costs against an impecunious applicant will stifle the proceeding, it will be incumbent on that applicant, as a step ancillary to its proving that it is unreasonable to expect those who stand behind it and will benefit from the litigation to provide security, to adduce cogent evidence explaining what attempts it has made, or others have made on its behalf, to obtain litigation funding from a commercial provider.[13]
[12][2023] FCA 556 (General Trade Industries).
[13]Ibid [167].
The applicable principles concerning funding and their relevance in the context of stultification are summarised in the Appeal Judgment in the following terms:
63.I have already referred to the Associate Judge’s reference to the observations of Allsop CJ and Middleton J in Madgwick. Allsop CJ and Middleton J said that there was force in the submission that the primary judge had ignored the need to consider the availability of third party funding, being a factor important to the balancing of the group’s position, the risk of stultification and the prejudice to the respondents from the impecuniosity of the applicants and the immunity of the group members. Their Honours said that they should not be taken as advocating a rule that a step such as the retention of litigation funding should always be taken to avoid an order for security but that, when “…all is said and done”, the proceeding was a piece of commercial litigation. Their Honours then went onto to describe some of the characteristics of the group members. It is clear, however, that the significant factor was that it was commercial litigation.
64.In Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd & Ors v Westcourt General Insurance Brokers Pty Ltd (Adelaide (SA Pools & Spa)), Doyle J (as his Honour then was) said:
There are several authorities which have recognised that in the context of essentially commercial claims such as the present, the possibility of litigation funding should be considered before a conclusion of stultification can be reached.
65. In St Mary’s Hog’s, Markovic J stated:
There is also only limited evidence of the applicants’ attempts to obtain funding. One potential funder has been approached on their behalf. It declined to fund the action. Based on Mr Argy’s conversation with Ms Silvers, a representative of that funder, he concluded without further exploration or, in my opinion, sufficient explanation that the applicants could not obtain third party funding. For example there is no evidence of HBCA’s financial status or to support the proposition that it won’t have any assets “by the end of the case” nor any explanation as to why Ms Silvers’ approach should carry conclusive weight on the subject of funding
66.On appeal from her Honour’s decision in the Full Court of the Federal Court in Goodwin v HBCA Pty Ltd (Goodwin), Middleton and Lee JJ said:
The primary judge noted (at J [122]) that there was only limited evidence of attempts to obtain funding. Her Honour did not consider that the evidence adduced amounted to “sufficient explanation that the applicants could not obtain third party funding”.
With respect to the primary judge, it is unclear why this was the case. The solicitor had given evidence that an experienced funder had represented that “there is no way any litigation funder would consider funding this action” because the franchisor had ceased trading and there were potential difficulties in pursuing recovery. Given the nature of and likely quantum of monetary relief able to be obtained by the class action, the correctness of this unchallenged evidence might have been thought compelling. Although for our part, we do not consider there was any insufficiency of explanation, it nevertheless appears this factor did not weigh significantly in the finding that her Honour was not satisfied stultification had been proven or, more generally, in the overall exercise of her Honour’s discretion as to ordering security (as is evident from any possibility of funding not being mentioned in the summary reproduced at [10] above).
67.More recently, in General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 2) (General Trade Industries), Derrington J said:
As a general proposition, where it is alleged in commercial litigation that an order for security for costs against an impecunious applicant will stifle the proceeding, it will be incumbent on that applicant, as a step ancillary to its proving that it is unreasonable to expect those who stand behind it and will benefit from the litigation to provide security, to adduce cogent evidence explaining what attempts it has made, or others have made on its behalf, to obtain litigation funding from a commercial provider.
The reason for this is not difficult to appreciate. Where an impecunious applicant has successfully sought litigation funding, the litigation funder will almost invariably have the means to provide security, be an entity that is “standing behind” the applicant in the relevant sense, and also stand to benefit from any recovery by the applicant in the proceeding. In short, it will very rarely, if ever, be unreasonable to expect the funder to provide security.
68.In Bufalo Corporation Pty Ltd (rec & mgr apptd) (in liq) v Prime Life Corporation Limited, Judd J explained the relevance of the existence of litigation funding in a security for costs application to the issue of stultification:
The existence of the litigation funder is, however, an important discretionary consideration which, in my view, favours an order for security. Its presence diminishes the risk that an order for security will stultify the action. The weight given to other discretionary considerations, such as the cause of the plaintiff’s impecuniosity may, to some extent, be neutralised by its participation. It stands to profit from a successful outcome.
…
72.In my view, the Associate Judge erred in finding at paragraph [55] that “the plaintiffs can be exempted from the need to provide evidence of funding”. The formulation by the Associate Judge of an exemption assumes that there is a rule to which the exemption applies. There is no rule. As I have already said, the Associate Judge’s earlier statement in the Reasons at [54] that each case must be considered on its merits is correct. By finding that the plaintiffs “can be exempted from the need to provide evidence of funding” the Associate Judge did not take into account relevant evidence. The Associate Judge ought to have found, and erred in failing to find, that to satisfy their onus of establishing that an order for security for costs would stultify the proceeding, the plaintiffs were required to adduce evidence that they could not reasonably obtain litigation funding of the proceeding. This is a commercial class action in which the possibility of litigation funding is expressly provided for in the conditional costs agreements with Levitt Robinson, and that firm, on behalf of the plaintiffs, has taken some steps in relation to it. It is relevant, in the circumstances of this case, in balancing the interests of the parties on the applications for security for costs, to take into consideration the steps that have been taken about the funding of the litigation and the likelihood of whether commercial litigation funding will be obtained.[14]
[14]Appeal Judgment (n 7) [63]–[68] and [72].
More recently, in One Lake Macquarie Pty Ltd (In Liquidation) v Athena Rose Capital Pty Ltd (One Lake),[15] Kunc J observed that a plaintiff company wishing to establish stultification may do so by, inter alia, showing that ‘…after reasonable efforts to obtain such funding have been made, it is not obtainable on commercially acceptable terms’.[16]
[15][2025] NSWSC 177 (One Lake).
[16]Ibid [119].
The plaintiffs accepted the summary of the relevant law set out in paragraphs [63]–[68] and [72] of the Appeal Judgment, the observations of Derrington J at paragraphs [174]–[175] of General Trade Industries and also those of Kunc J at paragraphs [112] and [119] of One Lake.
A plaintiff seeking to establish stultification of commercial litigation must adduce cogent evidence explaining why commercial litigation funding is likely to be either ‘unavailable or inappropriate’.[17] This must be established on the balance of probabilities.[18]
[17]Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd v Westcourt General Insurance Brokers Pty Ltd [2016] SASC 60, [57]–[58] (Doyle J). See also Duke Holdings Ltd (in liq) v Duke Group Ltd (in liq) [2009] SASC 245, [40] (White J); Kavcor Pty Ltd (in liq) v Kavanagh [2005] NSWSC 1163, [14] (Palmer J).
[18]Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd (2007) 65 ACSR 383, 397–8 [60] (Basten JA, Tobias and McColl JJA agreeing).
I find that the plaintiffs have not established that commercial litigation funding is likely to be unavailable. As I result, I am not satisfied that the proceeding will likely be stultified if security is ordered.
First, the plaintiffs sought, during oral addresses, at times, to reverse the onus with respect to stultification. That is, the plaintiffs’ submissions were advanced at times upon an incorrect formulation of the law, namely the submission that the Court cannot be ‘satisfied that litigation funding will be available’.
Second, the plaintiffs also submitted, during oral addresses, at times, that, presently, there is ‘uncertainty’ as to whether litigation funding will be available, and as a result there is a ‘real risk’ that commercial litigation funding ‘may not’ be available. They submitted, as a result, there was a real risk that the proceeding will be stultified if security is awarded. This is not sufficient for the plaintiffs to discharge their onus on stultification. This is because the plaintiffs must establish that:
(a) commercial litigation funding is likely to be unavailable, not just that there is a real risk it may not be; and
(b) the proceeding will likely be stultified, not just that there is a real risk it will be.
Third, there are presently four funders actively considering funding the proceedings. As submitted by the plaintiffs: ‘There are four remaining funders with whom the [plaintiffs] are still engaged’. Golden Crane has, in fact, indicated a willingness to fund the proceeding subject to an advice from senior counsel. In addition, Litigation Lending Services is also awaiting advice of senior counsel. As a result, the plaintiffs have not established that it is likely that commercial litigation funding will not be available. It is convenient to address the following key evidence concerning the four funders:
(a) Omni Bridgeway: on 7 February 2025 Omni Bridgeway stated that it was still continuing to assess the request for funding and it received further information from the plaintiffs’ solicitors on 11 February 2025. The plaintiffs are still waiting on a response from Omni Bridgeway.
(b) Galactic: at the hearing of the defendants’ applications for security before the Associate Judge, the plaintiffs relied upon evidence that Galactic was not interested in funding the proceeding. The position with respect to Galactic has now changed. In about early February 2025, Mr Levitt sought to ascertain any interest of Galactic in funding this proceeding and engaged in correspondence with them. The plaintiffs claim the correspondence is privileged. In about mid to late February 2025, Mr Levitt had a telephone conversation with a representative of Galactic to discuss the request for funding. The plaintiffs are still waiting on a response from Galactic.
(c) Litigation Lending Services: on 20 December 2024, Litigation Lending Services advised the plaintiffs’ solicitors that it remained interested in considering the plaintiffs’ solicitors funding request and would respond as soon as possible. On 30 January 2025, the plaintiffs’ solicitors spoke with a representative of Litigation Lending Services. The plaintiffs claim the discussions are privileged. Following that conversation, Ms Doherty ‘understood’ that the plaintiffs would retain senior counsel to give an opinion on the case. On 25 February 2025, the plaintiffs engaged Ms Melanie Szydzik SC of the Victorian Bar, together with Ms Alexia Staker (junior counsel), to provide an opinion on the case. As submitted by the plaintiffs: ‘Litigation Funding Services awaits the provision of an opinion by Senior Counsel’.
(d) Golden Crane Investments: In about mid-February 2025, the plaintiffs’ solicitors sought to ascertain any interest of Golden Crane in funding this proceeding and engaged in correspondence with its representatives. The plaintiffs claim the correspondence is privileged. Golden Crane has indicated a willingness to fund the proceeding subject to an advice from Senior Counsel. Golden Crane awaits the provision of that advice.
I refer to the matters reported in the article published by Lawyerly on 21 February 2025. The author of the article has attributed many statements to particular persons by using quotes identified by the use of quotation marks. This includes statements made by counsel appearing at the hearing and also Mr Levitt. But the statements made by Mr Levitt concerning litigation funding in this proceeding are not, in contrast to other statements, identified by the use of quotation marks. Consequently, I find it is uncertain whether this is a summary of statements made by Mr Levitt or a direct quote of what he said. As a result, I give this evidence no weight.
Given I have found that I am not satisfied that commercial litigation is likely to be unavailable as a result of the evidence concerning the four funders (as addressed above) it is not necessary to determine whether or not the plaintiffs have made ‘reasonable’ attempts to obtain commercial litigation funding. Similarly, given that I am not satisfied that the proceeding will likely be stultified if security is ordered, as a result of the evidence concerning the four funders (as addressed above), it is not necessary to determine:
(a) the relevance of the group members’ capacity to contribute to security and, if relevant, their willingness or ability to do so; or
(b) whether or not the plaintiffs have reasonable prospects of success on their claims. This is not a case in which stultification has been established but the defendants submit that stultification is a neutral factor because the plaintiffs’ claims have no reasonable prospects of success.
Plaintiffs’ prospects of success
The plaintiffs primarily relied upon their prospects of success as being relevant to the issue of stultification. But the plaintiffs in oral address separately identified their prospects of success as being a ‘discretionary factor on the authorities’ but did otherwise develop this submission. The plaintiffs submitted that the Court should assume for the purposes of these applications that the plaintiffs have reasonable prospects of success against the defendants. Upon matters being raised by the Court concerning the plaintiffs’ claims against Mr Silver, the plaintiffs submitted that the case against him ‘has at least some prospect’ (emphasis added).
The United Defendants submitted that this is a case of such complexity that it is not practical to reach any view about the merits of the plaintiffs’ claim. The United Defendants submitted that this is a neutral factor for the purposes of the application. Mr Silver submitted that, in relation to the claims made against him, no assumption can be made that the plaintiffs have reasonable prospects of success. Mr Silver submitted that:
(a) the plaintiffs have adduced no evidence that would establish Mr Silver’s actual knowledge of the contraventions alleged against the United Defendants; and
(b) the plaintiffs’ inability to formulate a viable claim against Mr Silver underscores that the Court cannot assume the claims against him have reasonable prospects of success.
In Mecrus Pty Ltd v Industrial Energy Pty Ltd,[19] Murphy J said:
41.There is no issue as to whether the applicant’s claims are bona fide and the only question concerns the strength of its claims. The authorities provide that where the claims in a proceeding are prima facie regular and disclose a cause of action the Court may assume the case has reasonable prospects of success. The respondents do not contend that Mecrus’ claims are not regularly made, or that they do not disclose a cause of action. On this basis I may assume the case has reasonable prospects of success.
42.The authorities show that the Court is not obliged to assess the merits of the claims at length as to do so would ordinarily be a waste of resources. Some authorities indicate that the Court should not go into the merits of a claim in detail unless it can be clearly demonstrated that there is a high degree of probability of success or failure.
43.Counsel for the respondents submits that the Court should not make any assessment of the strength of the claims at this preliminary stage. I do not accept this contention. Whether an attempt should be made may well depend upon the complexity of the case, but it is common for the court to undertake a preliminary assessment of the strength of the applicant’s claim in considering a security for costs application…[20]
[19](2015) 327 ALR 523.
[20]Ibid 532 [41]–[43] (citations omitted).
The plaintiffs’ claims against the United Defendants are the subject of a strike-out application. The United Defendants do not seek to strike out all of the claims against them. I accept, for the purposes of the United Defendants’ application and based upon only the very limited matters raised concerning the claims against the United Defendants upon this application, that the plaintiffs have reasonable prospects of success against them. The pleas against them disclose a cause of action. This is a neutral factor on the United Defendant’s application for security. No party submitted to the contrary.
The plaintiffs’ claims against Mr Silver are also the subject of a much more extensive strike-out application. I accept that the plaintiffs have experienced difficulties in formulating their claims against Mr Silver. Mr Silver specifically eschewed addressing the merits of the strike out application. Mr Silver did not submit that the Court should find that the claims against him have no merit or have no reasonable prospects of success. No party made any attempt to address the merits of the claims against Mr Silver in any detail. As a result, I accept for the purposes of Mr Silver’s application that, as submitted by the plaintiffs in oral address, the plaintiffs have at least some prospects of success against Mr Silver. This is a neutral factor on Mr Silver’s application for security. I further address the difficulties the plaintiffs have experienced in formulating their claims against Mr Silver in my consideration of the issue of the plaintiffs’ conduct.
Cause of the plaintiffs’ impecuniosity
The plaintiffs submitted that there is, at least, prima facie evidence of a causal connection between the impugned conduct of the defendants and the plaintiffs’ impecuniosity. The plaintiffs did not otherwise develop this submission. The plaintiffs did not otherwise rely upon this as a separate factor that weighs against the grant of security. The defendants submitted that, where stultification is not established, the relevance of this issue falls away. I accept the defendants’ submissions. In All Class, Allsop CJ said:
76.Where security for costs is resisted on the ground that it is the conduct of the respondent that has caused the applicant’s impecuniosity, the apparent strength of the applicant’s case should be assessed: Statewide Developments Realty Pty Ltd v Owners Corporation, SP 77457 [2013] NSWSC 1750 [20]. However, as observed by White J in Statewide at [23], the real reason for investigating the strength of the applicant’s case arises only where it was said that, on the particular facts of the case, the grant of security would stultify the proceedings. This approach was taken by the Full Court of the Supreme Court of Western Australia in BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 at 346 (per Anderson J, Kennedy and Ipp JJ agreeing), with Anderson J observing that the question of whether the respondent contributed to the applicant’s impecuniosity had to be considered in conjunction with the proposition that the effect of an order for security would be to stultify the action. This principle was also applied by Black J in Advance Innovative Solutions Pty Ltd (in liq) v X-Dem Group (Aust) Pty Ltd [2012] NSWSC 1112 at [19] (citing the passage in BPM 131 FLR at 346).[21]
[21]All Class (n 8) [76].
I have already found that the plaintiffs have not established stultification. As a result, it is not appropriate or necessary to consider whether the defendants caused the impecuniosity of the plaintiffs. That issue will be determined at trial.
Delay
The plaintiffs submitted that UPF’s application for security was occasioned by delay in circumstances where UPF were aware from 14 December 2022 that the plaintiffs did not intend to provide security for costs and yet no application was filed by UPF until 22 May 2023. They submitted that this was a factor militating against an order for security in favour of UPF. The plaintiffs’ counsel submitted that this point was not put ‘very strongly’. UPF submitted that it had not delayed in making its application for security. The plaintiffs did not submit that there had been delay in making the application for security by UP or Mr Silver.
Applications for security for costs ought to be brought promptly.[22] Precisely how any delay in applying for security for costs will impact on the exercise of the Court’s discretion will depend on the prejudice likely to be suffered by the respondent to the application and the reasons, if any, for the delay.[23] As observed by Sifris J in Oswal v Australia and New Zealand Banking Group Ltd:[24]
34.Delay is usually an important factor, and often a decisive factor in deciding whether to order security and in particular security for past costs. The main reason is that by such delay, the defendant has permitted the plaintiff, during the period of the delay, to incur costs, and often substantial costs, that may not have been incurred had the application been made promptly. If a plaintiff proceeds on the assumption that no such application will be made, it may be harsh and unfair to require security for such past costs. There are, of course, or may well be, other considerations which will excuse delay or balance the assumed and presumed prejudice that inevitably arises out of such delay.
35.In Colorado Products Pty Ltd (In Prov Liq), Black J said—
It is well established that an application for security for costs should be brought promptly and, where that is done, an order for security for costs may extend not only to future costs but also to costs already incurred… Conversely, the Court is less likely to order security for past costs where there has been significant delay in bringing the relevant application… There has been significant delay in this matter in progressing the Defendants' application for further security for costs, filed over 7 months ago, and substantial costs have been incurred during the period of delay. The Defendants submit that the Plaintiffs have been on notice of the Defendants' intention to apply for further security for costs since the further security for costs application was made on 31 August 2012. While that is correct, it is not an answer to the proposition that that application should have been, and was not, pursued promptly. That delay tends strongly against an order in respect of past costs and I do not consider that security should extend to past costs in the matter…[25]
[22]Ibid [58].
[23]Ibid.
[24][2016] VSC 52.
[25]Ibid [34]–[35] (citations omitted).
I am not satisfied that there has been delay by UPF in making its application for security for costs. Alternatively, any delay does not rise to the level of significance that would constitute it a factor capable of weighing against an order for security. It is convenient to set out, in short compass, a chronology of events leading up to the filing of UPF’s application for security for costs:
(a) On 21 October 2022, the plaintiffs commenced this proceeding.
(b) On 6 December 2022, UPF’s solicitors informed the plaintiffs’ solicitors that UPF would seek security for its costs of the proceeding. I do not consider this to be a delay given the complexity of this proceeding. On 14 December 2022, the plaintiffs’ solicitors informed UPF’s solicitors that the plaintiffs did not agree to provide security.
(c) On 12 December 2022, Mr Silver filed his application for security.
(d) On 15 December 2022, the Court informed the parties that Mr Silver’s application for security would be heard after the resolution of a number of other applications. On 15 December 2022, the Court made orders timetabling these other applications. In those circumstances, it was reasonable for UPF not to make its application for security until those other applications had been heard and determined.
(e) On 17 March 2023, the Court made various orders on the other applications, including that by 27 March 2023, the plaintiffs file and serve an amended statement of claim.
(f) On 21 April 2023, the Court made orders timetabling the defendants’ applications for security, including an order that UPF file any application by 19 May 2023.
(g) On 22 May 2023, UPF filed its application for security.
It is plain in my view that, when regard is had to the relevant context of the progress of the proceeding as set out above, there was no delay by UPF in making its application for security for costs.
In addition, the plaintiffs did not put forward any evidence of any particular prejudice which they might suffer by reason of the application having being initiated when it was.[26]
[26]All Class (n 8) [62] (Allsop CJ).
Plaintiffs’ conduct in the proceeding
The defendants submitted there have been consistent and repeated failures by the plaintiffs to comply with case management orders made by the Court and to prosecute the proceeding in a timely manner. The defendants identified a number of matters, in particular, the plaintiffs’ conduct in formulating their claims against the defendants and also their conduct upon these applications for security. Counsel for the plaintiffs accepted the delays that have been encountered are ‘very regrettable’. The plaintiffs also submitted, however, that the Court should take into account that some applications have been made by the defendants, including strike-out applications and applications for security for costs. It was further submitted that the defendants opposed the plaintiffs’ joinder application and an application concerning a communications protocol which, in both cases, were successful.
I refer to the evidence I have already set out concerning the plaintiffs’ conduct in formulating their claims. This highlights the tardy and unsatisfactory manner in which the plaintiffs have sought to prosecute their claims. This conduct has resulted in some delays to the claims being formulated, and therefore determined, and further costs being incurred. This is a factor weighing in favour of the grant of security. It is not a significant factor as I recognise that this is a large and complex proceeding. But the plaintiffs’ conduct has, nonetheless, resulted in some delay and further costs being incurred.
The plaintiffs’ conduct specifically on these applications for security has also been characterised by some delay and failure to meet deadlines imposed by the Court. This is, in part, the subject of my ruling delivered 21 February 2025. But these delays and failures are not of such significance as to constitute a factor in favour of the grant of security.
E. EXERCISE OF DISCRETION
In all of the circumstances, having weighed the various factors I have addressed in these reasons, I am satisfied that the Court should order the plaintiffs to provide security for the defendants’ costs. In particular, I emphasise the following matters.
First, the plaintiffs are impecunious. This is a large-scale commercial group proceeding in which the claims against the defendants are attended by considerable factual and legal complexity. The defendants have incurred and will incur substantial costs in defending the proceeding. The Court has already made orders on previous occasions that the plaintiffs pay the costs of the defendants. This is a significant factor weighing in favour of an order for security.
Second, the plaintiffs have not established that, if the Court orders the plaintiffs to provide security, the proceeding will likely be stultified.
Third, there has been no delay on the part of UPF in making the application for security or, alternatively, any delay is not of such significance as would make it a relevant factor against an order for security.
Fourth, the plaintiffs’ conduct in this proceeding in relation to the formulation of their claims has been tardy and unsatisfactory. The plaintiffs still have not properly formulated their claims against the defendants. This conduct has resulted in delays to the claims being formulated, and therefore determined, and further costs being incurred. This is a factor in favour of the grant of security. It is not a significant factor.
The defendants sought, in the alternative, orders that the plaintiffs’ solicitors provide security. The plaintiffs submitted that there is no principled basis upon which to order security against the plaintiffs’ solicitors, who are acting on a no win, no fee, basis. For the reasons I have already given, I consider it appropriate to exercise my discretion to order the plaintiffs to provide security. This was the primary relief sought by the defendants. I see no need to depart from this course and none was urged by any party. Accordingly, the issue of whether the plaintiffs’ solicitors should provide security does not arise.
F. QUANTUM OF SECURITY
The defendants relied upon evidence concerning the quantum of security as follows:
(a) United Defendants: affidavit of Ms Stevenson made 30 September 2024 at [25]–[55].
(b) Mr Silver: affidavit of Mr Skene made 1 October 2024 at [12]–[32].
The plaintiffs did not put forward or seek to rely upon any contrary evidence. The plaintiffs’ submissions were narrowly confined and cast at a very high level of abstraction. The plaintiffs submitted it is ‘open’ to the Court to further discount quantum given:
(a) the delay by UPF in making the application for security;
(b) the common interest of the defendants upon the plaintiffs’ claims (i.e. given the claim against Mr Silver is for accessorial liability);
(c) the common interest of the defendants upon ‘certain applications’ (none were identified by the plaintiffs); and
(d) the costs incurred on potential applications that were considered but not made by the defendants.
The plaintiffs did not submit that the quantum should, in fact, be discounted or identify how any particular amounts should be discounted.
It is well-established that in determining the appropriate quantum of any order for security, the Court eschews precise mathematical calculations in favour of a ‘broad brush’ approach involving ‘guesstimates as much as estimates’.[27] There must, however, be an evidentiary basis for any amount ordered.[28] The amount fixed must be ‘just and reasonable in all the circumstances of the particular case’.[29]
[27]Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293, [64] (Tate JA and Kyrou JJA), quoting Pathway Investments [2012] VSC 97, [37] (Davies J) and Quadrant Constructions Pty Ltd (in liq) v Morgan Smith Barney Australia Pty Ltd [2009] VSC 455, [56] (Forrest J).
[28]Ibid.
[29]Wollongong City Council v FPM Constructions Pty Ltd [2004] NSWSC 523, [50] (Einstein J). See also Laith & Fadi Investments Pty Ltd v Fogo Brazilia Holdings Pty Ltd [2024] NSWSC 1508, [216] (McGrath J).
The security sought by the defendants is just and reasonable in all the circumstances.
First, the defendants’ evidence concerning quantum is detailed and provides particulars of the relevant rates, the categories of work attended to and the time spent on them and the categories of work to be attended to in the future and the estimated time to be spent on them.
Second, the costs incurred by the defendants and their estimates of future costs are broadly reasonable:
(a) The rates of the solicitors and counsel are broadly reasonable. The rates of Mr Crutchfield KC, retained together with Mr Rosewarne KC for the United Defendants, are high. But the costs incurred and estimated, upon this tranche of security, are primarily based upon the work undertaken and to be undertaken by Mr Rosewarne KC.
(b) The costs are referenced to particular categories of work that I consider to be broadly reasonable. This proceeding has involved a number of substantial contested applications in addition to the applications for security for costs. These have been the subject of rulings including in FNH United petroleum Pty Ltd v United Petroleum Franchise Pty Ltd[30] and FNH United Petroleum Pty Ltd v United Petroleum Franchise Pty Ltd.[31] The applications for security have also been the subject of a ruling (FNH United Pty Ltd v United Petroleum Franchise Pty Ltd[32]) and a judgment on the appeals from that ruling (i.e. the Appeal Judgment). In addition, the plaintiffs’ claims against the defendants still have not been finally formulated.
(c) The discounts applied by the defendants are broadly reasonable. The United Defendants and Mr Silver both appropriately apply discounts to the fees and they both apply an additional discount of 10% for ‘uncertainty’. The United Defendants discount solicitors’ fees by 35% and counsel fees by 10% whereas Mr Silver discounts solicitors fees by 40% but does not discount counsel fees. The discounts applied are reasonable.
(d) The mathematical calculations made by the defendants are correct.
[30][2023] VSC 608 (Delany J).
[31][2024] VSC 366 (Nichols J).
[32](Supreme Court of Victoria, Efthim AsJ, 30 October 2023).
In view of these matters, no further discount should be applied.
Moreover, no further discount should be applied to those costs incurred or estimated as a result of any common interest of the defendants upon the plaintiffs’ claims. I accept that Mr Silver has a common interest with the United Defendants in defeating the plaintiffs’ claims against the United Defendants but that does not make the costs incurred or estimated by Mr Silver unreasonable. The plaintiffs elected to join Mr Silver. They did so for ‘reasons of recoverability’. He is entitled to defend himself and to do so without necessarily relying upon the work of the United Defendants. The costs incurred and estimated by the United Defendants do not concern the claims against Mr Silver.
No further discount should be applied to those costs incurred on potential applications that were considered but not made by the defendants. To some extent, a discount is already factored in on the discounts already applied. In addition, I am not satisfied that the costs incurred on the potential applications are unreasonable and no such submission was made by the plaintiffs.
No further discount should be applied to those costs incurred or estimated as a result of any common interest of the defendants upon any of the various applications made in this proceeding. Again, to some extent such a discount is already factored in on the discounts already applied. In addition, I am not satisfied that the costs incurred on the applications are unreasonable and no such submission was made by the plaintiffs. I have carefully considered the costs and the conduct of the defendants on the applications for security before the Honourable Associate Justice Efthim and also before me, including in relation to the appeals. In my view, the defendants have sought to limit unnecessary costs. This is evident in the submissions filed with the Court on these applications, including the appeals before me, and in oral addresses. Finally, as I have already said, the plaintiffs elected to join Mr Silver and he is entitled to defend himself and not to necessarily rely upon the work of the United Defendants.
Third, it is reasonable for the defendants to seek security, in effect, by way of tranches, with the first tranche being the subject of the present applications. The plaintiffs did not submit to the contrary.
Fourth, the plaintiffs did not put forward or seek to rely upon any contrary evidence concerning quantum.
Fifth, the plaintiffs did not seek to impugn any particular evidence concerning quantum such as, for instance, any particular rate or category of work.
Sixth, I do not consider that there should be any particular deduction of any costs as a result of any delay in UPF making its application for security. I have already addressed the question of delay in these reasons. In addition, the plaintiff did not identify any particular amount or amounts that they said should be deducted.
G. CONCLUSION AND ORDERS
In conclusion, it is just and reasonable, in all of the circumstances, to order the plaintiffs give security for:
(a) the United Defendants’ costs already incurred in the proceeding and to be incurred up to the case management conference after they have filed their defence, in the amount of $2,300,000; and
(b) Mr Silver’s costs already incurred in the proceeding and to be incurred up to the filing of his defence in the amount of $1,400,000.
I am also of the preliminary view that the plaintiffs should pay the costs of the defendants’ applications for security, including before the Honourable Associate Justice Efthim. The plaintiffs have not been successful in opposing security. The parties are directed to confer on the precise form of orders and provide proposed minutes of order to the Court in accordance with these reasons by 4:00pm on 15 April 2025. In the absence of consent, the Court will list the applications for security for further hearing.
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SCHEDULE OF PARTIES
| FNH UNITED PTY LTD (ACN 639 802 798) | First Plaintiff |
| FAHIM ISTANIKZAI | Second Plaintiff |
| JIGARKUMAR BHARATBHAI PATEL | Third Plaintiff |
| JAYDEEP DEVJIBHAI BHATTI | Fourth Plaintiff |
| YUG SHARMA PTY LTD (ACN 640 132 190) | Fifth Plaintiff |
| - and - | |
| UNITED PETROLEUM FRANCHISE PTY LTD (ACN 127 764 989) | First Defendant |
| AVI SILVER | Second Defendant |
| UNITED PETROLEUM PTY LTD (ACN 085 779 255) | Third Defendant |
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