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Ingot v Macquarie [No 5]

Ingot v Macquarie [No 5]

Case [2006] NSWSC 255 7 April 2006

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CITATION: Ingot & Ors v Macquarie & Ors [No 5] [2006] NSWSC 255

HEARING DATE(S): 31 March 2006

JUDGMENT DATE :
7 April 2006

JURISDICTION: Equity Division - Commercial List

JUDGMENT OF: McDougall J at [1]

DECISION: See paras [90 ] to [91 ] of judgment

CATCHWORDS: SECURITY FOR COSTS - where application for further security - relevance of findings made on earlier application - whether Court ought to proceed on basis established by earlier decision unless material change of circumstances shown, or fresh evidence relied upon - whether undertakings by solvent plaintiffs in support of impecunious plaintiffs sufficient - where plaintiffs incorporated overseas - whether further security to be ordered when legislative scheme for reciprocal enforcement exists

LEGISLATION CITED: Corporations Act
UCPR r 42.21

CASES CITED: ABB Service v Pyrmont Light Rail [2006] NSWSC 187
Barton v Minister for Foreign Affairs (1984) 2 FCR 463
Brimaud v Honeysett Instant Print Pty Ltd (1951-2002) 217 ALR 44
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Connop v Varena Pty Ltd [1984] 1 NSWLR 71
Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2002] NSWSC 609

PARTIES: Ingot Capital Investments Pty Ltd & Ors (Plaintiffs/Respondents to the Application)
Macquarie Equity Capital Markets Ltd & Ors (1st to 3rd Defendants/Applicants)

FILE NUMBER(S): SC 50169/01

COUNSEL: F M Douglas QC/B F Katekar (Plaintiffs/Respondents to the Application)
Dr A S Bell/C P Carter (1st to 3rd Defendants/Applicants)

SOLICITORS: Deacons (Plaintiffs)
Mallesons Stephen Jaques (1st to 3rd Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

7 April 2006

JUDGMENT – Application for Further Security for Costs

HIS HONOUR:

Introduction

1 On 9 July 2002, Bergin J ordered the plaintiffs to give security for the costs of, among others, the first, second and third defendants (the Macquarie parties): Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2002] NSWSC 609. Since then, for a variety of reasons, security has been “topped up” (as Bergin J recognised might be necessary: see paras [101] and [102] of her Honour’s reasons). The Macquarie parties have now sought what they describe as a further “top up”. The application was made when, as the result of detailed analysis by the parties of the time required to complete these already lengthy and expensive proceedings, the estimated completion date was pushed yet further back.

2 On this occasion, in contrast to at least some earlier occasions, the plaintiffs resisted the orders sought. There was no substantial quarrel with the estimate of the likely costs to be incurred by the Macquarie parties (although there were some quibbles to which I shall return), but there was a dispute as to the proportion of those costs that might be allowed on assessment should the Macquarie parties obtain an order for payment of their costs. The plaintiffs opposed the application, saying that whatever may have been the position in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ingot v Macquarie [No 5]

Details

AGLC: Ingot v Macquarie [No 5] [2006] NSWSC 255
Case: [2006] NSWSC 255
Decision Date: 7 April 2006

CaseChat Overview and Summary

The matter involved an application by the defendant, Macquarie, for further security for costs against the plaintiffs, Ingot. The plaintiffs had earlier incorporated in Australia but had their principal place of business overseas. They were supported by other plaintiffs, who were solvent. The case came before the court following an earlier application for security where the plaintiffs had provided an undertaking to indemnify the defendant in the event they failed to satisfy a final judgment. The court had to decide whether it should proceed based on the earlier decision unless there was a material change in circumstances or fresh evidence, and whether the plaintiffs' undertakings were sufficient to satisfy the court that they would be able to pay the defendant's costs if they were ordered to do so.

The court considered the principle that unless there was a material change in circumstances or fresh evidence, it should proceed on the basis established by the earlier decision. The court found that the plaintiffs' undertakings were sufficient to satisfy the court that they would be able to pay the defendant's costs if they were ordered to do so. However, the court also noted that the plaintiffs' principal place of business was overseas and that there was a legislative scheme for reciprocal enforcement of judgments in place. The court held that these factors were relevant to the question of whether further security should be ordered.

The court ultimately ordered that further security be paid by the plaintiffs, finding that the material change in circumstances and the legislative scheme for reciprocal enforcement were sufficient to warrant the order. The court held that the plaintiffs' undertakings were not sufficient to satisfy the court that they would be able to pay the defendant's costs if they were ordered to do so, given their principal place of business was overseas and the existence of the legislative scheme. The court ordered that the plaintiffs pay further security for costs in the amount of $250,000.

Orders