Grizonic v Suttor; Grizonic v McDonald

The applicants, Grizonic, sought an order for security of costs against the respondents, Suttor and McDonald, who were defendants in the proceedings. The applicants sought to determine whether they were suing for the benefit of others under UCPR 42.21(1)(e), as well as the appropriateness of varying an order fixing the trustees' remuneration to accord with a subsequent costs assessment. The applicants also sought to determine whether it was appropriate to order payment of the trustees' remuneration out of the trust fund. The case was heard in the Supreme Court of New South Wales.
The central legal issues that the court had to address were whether the applicants were suing for the benefit of others, and whether the defendants' delay in bringing the application for security of costs was relevant to the decision. Additionally, the court had to consider whether it was appropriate to vary an order fixing the trustees' remuneration to accord with a subsequent costs assessment, and whether it was appropriate to order payment of the trustees' remuneration out of the trust fund.
The court found that the applicants were indeed suing for the benefit of others, as the proceeds of the litigation were subject to a personal insolvency agreement that the applicants had entered into with their creditors. The court held that the defendants' delay in bringing the application for security of costs was not relevant to the decision. Furthermore, the court held that it was appropriate to vary an order fixing the trustees' remuneration to accord with a subsequent costs assessment, and that it was also appropriate to order payment of the trustees' remuneration out of the trust fund, in accordance with the principle that a trustee is entitled to indemnity for expenses from the trust fund.
The court made orders for security of costs, varying the order fixing the trustees' remuneration to accord with the subsequent costs assessment, and ordering payment of the trustees' remuneration out of the trust fund. The court also ordered that the applicants were to be deemed to be suing for the benefit of others, and that the defendants' delay in bringing the application for security of costs was not relevant to the decision.