SUPREME COURT OF QUEENSLAND
CITATION:
LPD Holdings Pty Ltd & Anor v Russells & Anor [2022] QSC 48
PARTIES:
LPD HOLDINGS (AUST) PTY LTD ACN 060 214 511
(First Plaintiff)
andMAYSON ASSOCIATES LIMITED
(Second Plaintiff)
v
RUSSELLS (A FIRM)
(First Defendant)
andSTEPHEN CHARLES RUSSELL
(Second Defendant)
FILE NO/S:
7571 of 2018
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court of Queensland
DELIVERED ON:
6 April 2022
DELIVERED AT:
Cairns
HEARING DATE:
18 March 2022 at Brisbane
JUDGE:
Henry J
ORDER:
1. Application granted.
2. The plaintiffs will provide further security for the defendants’ costs of the proceeding up to and including the first day of the trial in a total amount of $200,000 to be secured by:
(a) payment into court, or
(b) provision of a bank guarantee in a form satisfactory to the Registrar, or
(c) a combination of (a) and (b), or
(d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,
by no later than 14 April 2022.
3. The plaintiffs will provide further security for the defendants’ costs of the proceeding beyond day one of the trial in a total amount of $147,000 to be secured by:
(a) payment into court, or
(b) provision of a bank guarantee in a form satisfactory to the Registrar, or
(c) a combination of (a) and (b), or
(d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,
by no later than seven days prior to the listed commencement of the trial.
4. The plaintiffs pay the costs of and incidental to this application, to be assessed.
5. The plaintiffs pay the defendants’ costs thrown away by reason of the adjournment of this application from 24 February 2022 to 18 March 2022.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – POWER TO ORDER – where the applicants are a solicitors’ firm and its principal – where the applicants acted for the respondents – where the applicants are being sued by the two corporate respondents for alleged negligence, breach of contract and misleading and deceptive conduct in connection with the alleged failure of litigation – whether the respondents are ordinarily residents outside of Australia – whether the court is satisfied there is reason to believe the respondents will be unable to pay the applicants costs if ordered to pay them – whether discretion should be exercised in favour of granting security for costs
Uniform Civil Procedure Rules 1999 (Qld), rr 670 and 671
Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301, cited
De Beers Consolidated Mines Limited v Howe [1906] AC 4485, citedEquititrust Limited v Tucker [2019] QSC 51 [111], cited
COUNSEL: G Beacham QC and D Tay for the applicants/defendants
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- Case
- [2022] QSC 48
- Decision Date
CaseChat Overview and Summary
The court found that the applicants had established a prima facie case for security for costs. The court was satisfied that there was a reason to believe that the respondents would be unable to pay the applicants' costs if ordered to pay them. The respondents' non-resident status, coupled with the lack of evidence of their financial standing, was sufficient to establish a reason to believe that the applicants would be unjustly prejudiced if they were not granted security for costs. The court also found that the applicants had a good arguable case on the merits of the proceeding, and that the balance of convenience favoured the grant of security for costs. The court determined that the applicants had satisfied the threshold requirements for the grant of security for costs, and that the discretion should be exercised in their favour.
Accordingly, the court granted the application for security for costs and ordered the respondents to provide security for the applicants' costs of the proceeding up to and including the first day of the trial in a total amount of $200,000, and for the proceeding beyond day one of the trial in a total amount of $147,000. The security could be provided by payment into court, provision of a bank guarantee, or payment into the applicants' trust account subject to certain conditions. The respondents were also ordered to pay the applicants' costs of and incidental to the application, as well as the costs thrown away by reason of the adjournment of the application.
Orders
Orders of the court
1. Application granted.
2. The plaintiffs will provide further security for the defendants’ costs of the proceeding up to and including the first day of the trial in a total amount of $200,000 to be secured by:
(a) payment into court, or
(b) provision of a bank guarantee in a form satisfactory to the Registrar, or
(c) a combination of (a) and (b), or
(d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,
by no later than 14 April 2022.
3. The plaintiffs will provide further security for the defendants’ costs of the proceeding beyond day one of the trial in a total amount of $147,000 to be secured by:
(a) payment into court, or
(b) provision of a bank guarantee in a form satisfactory to the Registrar, or
(c) a combination of (a) and (b), or
(d) payment into Thomson Geer’s trust account, subject to an undertaking by Thomson Geer not to deal with the monies except by order of this Court or the defendants’ prior written agreement,
by no later than seven days prior to the listed commencement of the trial.
4. The plaintiffs pay the costs of and incidental to this application, to be assessed.
5. The plaintiffs pay the defendants’ costs thrown away by reason of the adjournment of this application from 24 February 2022 to 18 March 2022.
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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