Pleash (Liquidator) v Tucker - [2018] FCA 168

FEDERAL COURT OF AUSTRALIA
Pleash (Liquidator) v Tucker [2018] FCA 168

File number(s): QUD 2 of 2018

Judge(s): GREENWOOD J

Date of judgment: 26 March 2018

Catchwords: APPEAL AND NEW TRIAL – consideration of an application for security for costs of an application for leave to appeal to be heard together with the appeal

Legislation: Federal Court of Australia Act 1976 (Cth), ss 37N, 37P, 56

Date of hearing: 19 March 2018

Date of last submissions: 19 March 2018

Registry: Queensland

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 44

Counsel for the Applicant: Mr J Peden QC

Solicitor for the Applicant: Russells

Counsel for the Respondents: Mr P Hackett

Solicitor for the Respondents: Tucker & Cowen Solicitors

ORDERS

QUD 2 of 2018

BETWEEN:
BLAIR ALEXANDER PLEASH AND RICHARD ALBARRAN, AS LIQUIDAOTRS OF EQUITITRUST LIMITED ACN 061 383 944 (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)

Applicant

AND:
DAVID ROBERT WALTER TUCKER

First Respondent

VIKWOOD PTY LTD

Second Respondent

TUCKER FINANCE PTY LTD (and others named in the Schedule)

Third Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

26 MARCH 2018

THE COURT ORDERS THAT:
1.The applicant give security for the costs of the application for leave to appeal filed on 4 January 2018 and the appeal in the sum of $55,000.00 (the “security”) by way of the applicant paying the security into the Trust Account of Russells solicitors within 10 days.
2.Should the applicant fail to comply with the order to provide security, the application for leave to appeal and the appeal be stayed until further order.
3.The applicant pay the costs of the respondents (as applicants on the interlocutory application for an order for security for costs) of and incidental to the application for security for costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
GREENWOOD J:

These proceedings are concerned with an interlocutory application in the principal proceeding.
The interlocutory application was filed on 13 March 2018 and heard on 19 March 2018. The respondents to the principal proceeding are the applicants on this interlocutory application. They seek an order that the applicant in the principal proceeding (the “principal applicant”) provide security for any order for costs that might be made in their favour, in an amount of $107,777.10 on the footing that the principal applicant pay the security into Court within seven days. A second order is sought that, should the principal applicant fail to comply with Order 1, the proceeding either be dismissed or stayed until the security is provided. The principal applicant is Mr Blair Alexander Pleash (“Mr Pleash”) together with Mr Richard Albarran (“Mr Albarran”). They bring the principal proceeding personally but in their capacity as liquidators of Equititrust Limited (in liquidation) (Receivers and Managers appointed). Notwithstanding the capacity in which Mr Pleash and Mr Albarran act as professional liquidators and in which they move the Court, they nevertheless bring the principal…

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 Pleash (Liquidator) v Tucker

Details

AGLC: Pleash (Liquidator) v Tucker [2018] FCA 168
Case: [2018] FCA 168
Decision Date: 26 March 2018

CaseChat Overview and Summary

In the Federal Court, Pleash, acting as liquidator of a company, sued Tucker over alleged breaches of fiduciary duty and contraventions of the Corporations Act. The case was decided in favour of the liquidator, and Tucker appealed the decision. Tucker then applied for leave to appeal to the High Court, and Pleash applied for security for the costs of the appeal.

The court had to decide whether Pleash was entitled to require Tucker to provide security for the costs of the appeal. The court also had to determine the appropriate amount of security if Pleash was entitled to it. Pleash argued that Tucker was a wealthy individual who had the means to pay the security, and that the amount should be set at $55,000. Tucker argued that Pleash was not entitled to security and that, if Pleash was entitled to security, the amount should be significantly lower.

The court found that Pleash was entitled to security for the costs of the appeal. The court noted that Tucker was a wealthy individual who had the means to pay the security, and that the amount of $55,000 was not excessive. The court ordered that Tucker provide security for the costs of the appeal in the sum of $55,000, and that if Tucker failed to comply with the order, the appeal be stayed until further order. The court also ordered that Tucker pay the costs of the interlocutory application for security for costs.

This decision highlights the importance of considering security for costs in appeals, particularly where the parties have significant means. The court took into account the financial position of the parties in determining the appropriate amount of security, and the decision provides guidance for future cases involving security for costs in appeals.

Orders

Orders of the court

1. The applicant give security for the costs of the application for leave to appeal filed on 4 January 2018 and the appeal in the sum of $55,000.00 (the “security”) by way of the applicant paying the security into the Trust Account of Russells solicitors within 10 days.

2. Should the applicant fail to comply with the order to provide security, the application for leave to appeal and the appeal be stayed until further order.

3. The applicant pay the costs of the respondents (as applicants on the interlocutory application for an order for security for costs) of and incidental to the application for security for costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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File number(s):	QUD 2 of 2018
Judge(s):	GREENWOOD J
Date of judgment:	26 March 2018
Catchwords:	APPEAL AND NEW TRIAL – consideration of an application for security for costs of an application for leave to appeal to be heard together with the appeal
Legislation:	Federal Court of Australia Act 1976 (Cth), ss 37N, 37P, 56
Date of hearing:	19 March 2018
Date of last submissions:	19 March 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	44
Counsel for the Applicant:	Mr J Peden QC
Solicitor for the Applicant:	Russells
Counsel for the Respondents:	Mr P Hackett
Solicitor for the Respondents:	Tucker & Cowen Solicitors

JUDGE:	GREENWOOD J
DATE OF ORDER:	26 MARCH 2018