Rowe v Andrews - [2021] TASSC 34

[2021] TASSC 34

COURT: SUPREME COURT OF TASMANIA

CITATION: Rowe v Andrews [2021] TASSC 34

PARTIES:  ROWE, Amelia Jane
  v
  ANDREWS, Terrence
  ANDREWS, Josephine (also known as Josephine SMYTH)
  INSPIRED DEVELOPMENTS (AUSTRALIA) PTY LTD
  ANDREWS, Craig Morgan
  ALLEN, Nicholas
  VISIONTAS PTY LTD

FILE NO:  456/2020
DELIVERED ON:  11 August 2021
DELIVERED AT:  Hobart
HEARING DATE:  28 July 2021
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Security for costs – Factors relevant to exercise of discretion – Impecuniosity – Generally – Plaintiff a natural person – Plaintiff not suing only for the benefit of others – Application dismissed.
Aust Dig Procedure [1751]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine SC
             Third & Fifth Defendants:            G Bigmore QC
Solicitors:
             Plaintiff:  Rae & Partners
             Third Defendant:     Dobson Mitchell Allport
             Fifth Defendant:  Paula Sutherland & Associates

Judgment Number: [2021] TASSC 34
Number of paragraphs: 31

Serial No 34/2021
File No 456/2020

AMELIA JANE ROWE v TERRENCE ANDREWS, JOSEPHINE ANDREWS
(also known as JOSEPHINE SMYTH), INSPIRED DEVELOPMENTS (AUSTRALIA) PTY LTD, CRAIG MORGAN ANDREWS, NICHOLAS ALLEN AND
VISIONTAS PTY LTD

REASONS FOR JUDGMENT HOLT AsJ

11 August 2021

The third and firth defendants have applied for orders that the plaintiff, Amelia Jane Rowe, give security for their costs in the sum of $100,000 each with the claim against them being stayed until such security is given.
The application has been made relying upon the inherent jurisdiction of the Court to make such orders and also upon the Supreme Court Rules 2000, r 828(1)(c), which is as follows:
"828 Security for costs
(1) The Court or a judge, on the application of a party to proceedings, may order an opposite party to give security for the costs of the party applying for security and that the proceedings against the party applying for security be stayed subject to the provision of security if the opposite party from whom security is sought is a plaintiff, applicant, defendant pursuing a counterclaim or respondent pursuing a cross application and if –
…
(c) the opposite party, not being a party who sues in a representative capacity, sues only for the benefit of some other person and there is reason to believe that the opposite party does not have sufficient assets in Tasmania to pay the costs of the party applying for security; or
…"
The inherent jurisdiction has not been ousted or fettered by the terms of the rule. Each case depends on its particular circumstances with the governing consideration being what is required by the justice of the matter. This was explained by Kirby J in Merribee Pastroral Industries Pty Ltd v Australia New Zealand Banking Group Ltd [1998] HCA 41, (1998) 193 CLR 502 at [26] as follows:
"Without any pretence to having conducted an exhaustive analysis of the decisions in this Court where orders for security for costs have been sought, in appeals, a number of propositions can be stated which it may be useful to collect:
1 There is no absolute rule to control the exercise of the discretion to order security for costs where that jurisdiction derives from the inherent power of the Court. The jurisdiction, as one reposed in a court, is to be exercised judicially and for the purpose for which it exists. An analogous discretion has been described as "absolute". It would be wrong to attempt to hedge the jurisdiction about by rules or practices, even where derived from a number of instances. This is because what should be done in each case depends entirely on the circumstances of the case. The governing consideration is what is required by the justice of the matter.
2 There is therefore no absolute rule (applicable statute apart) that the impecuniosity of a party will entitle its opponent to an order for security for its costs. Where the power to so provide exists in uncontrolled terms, it would be to fetter the jurisdiction impermissibly to adopt such a rule or even a prima facie entitlement. By the same token, the inability of a party to meet the costs of an unsuccessful proceeding is not irrelevant to the exercise of the jurisdiction[40]. Litigation is inevitably expensive and burdensome. To add to the burdens of a party successful in the outcome, those of paying its costs with little or no prospect of recovery under an order for costs may, in particular circumstances, be a reason for offering a measure of protection to that party by way of security for costs.
3 Another consideration that has sometimes been judged to be relevant is the strength of the case of the party resisting an order that it provide security for costs and an evaluation (necessarily tentative) of its prospects of success. Thus, the fact that a party has secured special leave to argue its case on appeal has been thought a relevant consideration in some circumstances. Similarly, if a proceeding appeared hopeless and such as was bound to fail, the lack of apparent merit in a party's case might be a reason for ordering it to provide security for the costs to which, it appears, it is needlessly putting its opponent. Such a consideration would need to be exercised with care, given that the real merits of a case might not emerge until the final hearing or might not sufficiently emerge in the necessarily brief proceedings typically involved in an application for security for costs. Furthermore, if a party asserts that its opponent's proceedings are manifestly lacking in legal merit, other remedies are available to it to protect it from needless vexation. In appeals there is the barrier of leave or special leave.
4 Further considerations which, in the particular circumstances of the case, have been held relevant to the grant or refusal of an order for security for costs in relation to a proceeding in the Court have been:
(a) That the hearing of the proceeding is close at hand or that the moving party has delayed its application for such an order.
(b) That the parties or some of them are legally aided.
(c) That the proceeding raises matters of general public importance quite apart from the interests of the parties.
(d) That the nature of the proceeding is such that, even if unsuccessful, an order for costs in favour of the winning party might not be made or might be limited.
(e) That the costs orders made earlier in the proceedings have followed an unusual course or have involved countervailing orders which must be weighed against those liable to be made in the proceedings in question.
(f) That a party to the proceedings is, or will at judgment be, or be likely to be, absent from the jurisdiction and has no or few assets within the jurisdiction.
(g) That if an order were made it would effectively shut a party out of relief according to law in circumstances where that party's impecuniosity is itself a matter which the litigation may help to cure.
Doubtless there are as many further considerations as there are cases. The foregoing help to illustrate some of the matters which courts, including this Court, have felt to be relevant to the exercise of the discretion to order security for costs, where that discretion is invoked." [Footnotes omitted.]
The strength and quantum of the plaintiff's claim considered against the likely costs of the defendant, if the defendant is successful, is a relevant consideration: St Helens Area Land Care and Coast Care Group Inc v Break O Day Council [2005] TASSC 46 at pars [17] and [26]. Of course, caution must be exercised in assessing merits when the Court does not have the full evidence and the benefit of full argument as would be the case at trial. However, in claims which can be identified as unlikely to succeed on the face of the pleadings the merits of the action will require consideration: Kodram (No 5) Pty Ltd v Shandy Pty Ltd [1996] TASSC 8 per Zeeman J at [6].
I add for myself that if a case can be identified as certain to fail on the face of the pleadings through a plaintiffs lack of standing or the absence of a reasonable cause of action, it may be appropriate to decline to exercise the discretion to order that security for costs be given and leave the defendant to bring an application for summary dismissal of the action.
Other matters which have been considered relevant on an application for security for costs are whether the plaintiff's impecuniosity has been brought about by the impugned act or omission of the defendant, whether the application is oppressive in the sense that it has been brought merely to deny the impecunious plaintiff the right to litigate and whether there are persons standing behind the plaintiff who stand to benefit from the litigation if the plaintiff is successful and such persons have the means to contribute to the cost: KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76, (1995) 56 FCR 189 at 197-198.
Despite the observation of Kirby J in Merribee Pastoral that there are no absolute rules governing the exercise of the discretion, there is at least one absolute rule in the case of claims brought by natural persons. Namely that there must be something more in the circumstances of the case than the plaintiff's inability to meet an adverse costs order. French J said in Bryan E Fencott Associates Pty Ltd v Eretta Pty Ltd (1987) FCA 102, (1987) 16 FCR 497 at 505 [57]-[59]:
"[57]    It is a venerable principle that poverty or even insolvency on the part of a plaintiff will not of itself attract a requirement for security for costs conditioning the right to institute and/or conduct legal proceedings.
[58]     Declining an application for a rule to show cause why a plaintiff should not give security for costs, Alderson B in Ross v. Jacques (1841) 8 M&W 135 at 136 said:-
'... the plaintiff is within the jurisdiction of the Court, and her poverty is no reason why she should give security for costs. The case of a plaintiff suing in forma pauperis is an instance of that.'
See also Cowell v Taylor (1885) 31 Ch D,34, Le Mesurier v Fergusson (1903) 20 TLR 32 (C.A.); Re Emery (1923) P 184 at 189, Sir Lindsay Parkinson & Co Ltd v Triplan Ltd(1973) 2 All ER 273 at 276; Pearce v Naydler (1977) 1 WLR 899 at 902.
[59]     It is an important exception to that principle that an impecunious plaintiff who is only a nominal plaintiff, that is to say, who sues for the benefit of another, may be required to give security. - Cowell v Taylor (supra), Mackie v Clough (1891) 17 VLR 20, Lloyd v Hathern Station Brick Co Ltd (1901) 85 LT 158, Re Emery (1923) P 184, 189, Semler v Murphy (1968) Ch 183, Co-Operative Farmers and Graziers District Meat Supply Ltd v Smart (1977) VR 386 at 387."
The third and fifth defendants accept the proposition that as a matter of general principle security for costs should be ordered against natural persons only in exceptional circumstances. They say, however, that the plaintiff's prospects of success are weak, that she is bringing the proceedings only for the benefit of others and in any event that she does not have standing to bring the action. The submission is that when coupled with these circumstances the plaintiff's inability to meet an adverse costs order justifies the making of an order giving security for costs.
The evidence of the plaintiff is that she is the recipient of a disability support pension in the amount of $695.45 per fortnight, that she has about $20,000 in savings and that she is the joint owner of real estate in Victoria purchased in 2020 for $147,000 subject to a mortgage securing a loan having a current debit balance of about $70,000. If the third and fifth defendants assessment in the sum of $200,000 for their likely combined costs is correct and the plaintiff ultimately fails in her action then, plainly, she will not be in a position to compensate the defendants for their costs.
The submission that the plaintiff's prospects are poor make it necessary to examine the amended statement of claim filed 1 July 2020 insofar as it concerns the third and fifth defendants.
The allegations are essentially as follows. In March 2003 a deed of trust was executed with the plaintiff being the sole trustee, the sole appointor and a primary beneficiary along with her children and remoter issue. The secondary beneficiaries included the spouses, de facto spouses, nephews and nieces of the plaintiff or their children. Shortly after the creation of the trust the plaintiff, in her capacity as trustee, acquired two properties at Latrobe in Tasmania which were in whole or in part leased to tenants. In 2005 the plaintiff, as appointor under the deed of trust, appointed a company to act in her place as trustee. The plaintiff however remained on the title as the registered proprietor of the two properties. In 2007 the third defendant became the registered proprietor of the two properties as a result of the plaintiff's signature being forged on instruments of transfer. The third defendant knew of the fraud and assisted in its execution by registering the forged instruments of transfer so as to transfer the titles in to its name. The fifth defendant, being the sole shareholder and a director of the third defendant, knew of the fraud and was a party to it. One of the properties was subsequently sold by the third defendant. The third defendant has not accounted to the plaintiff in respect of the sale proceeds. The third defendant remains the registered proprietor of the other property. The plaintiff claims that she is entitled to have the title to the unsold property put back into her name being the position which pertained immediately prior to the fraud. She claims that an account should be taken in respect of both properties as well as claiming other equitable relief.
Knowing participation by the third and fifth defendants exposes them to equitable remedies. This is made clear in Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society [2018] HCA 43, (2018) 265 CLR 1 where Gageler J said at [71]-[72]:
"71 Knowing participation by a non-fiduciary in a dishonest and fraudulent breach of fiduciary duty is conduct which is regarded in equity as itself unconscionable and as attracting equitable remedies against the knowing participant of the same kind as those available against the errant fiduciary. Knowing participation in a dishonest and fraudulent breach of fiduciary duty includes knowingly assisting the fiduciary in the execution of a 'dishonest and fraudulent design' on the part of the fiduciary to engage in the conduct that is in breach of fiduciary duty. The requisite element of dishonesty and fraud on the part of the fiduciary is met where the conduct which constitutes the breach transgresses ordinary standards of honest behaviour. Correspondingly, the requisite element of knowledge on the part of the participant is met where the participant has knowledge of circumstances which would indicate the fact of the dishonesty on the part of the fiduciary to an honest and reasonable person.
72 That is not to say that other participatory conduct by non-fiduciaries in other breaches of fiduciary duty cannot attract equitable remedies. The extent to which such conduct might do so does not now arise for consideration; the conduct of the fiduciaries and the non-fiduciary in the present case was squarely within the accepted paradigm." [Footnotes omitted.]
The claim against the third defendant for recovery of the unsold property must necessarily be based on the fraud exception to indefeasibility contained in the Land Titles Act 1980. Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 81 ALJR 1107 at [190]-[198].
The claims against the third and fifth defendants for an account and other equitable relief are claims in personam and are based on principles of equity. In particular the line of authority starting with Barnes v Addy (1874) LR 9 Ch App 244 at 251. See Jacobs' Law of Trusts in Australia, 8^th ed 13-34.
The plaintiff was not challenged by cross-examination on her allegations. It is impossible, without the benefit of the full evidence which would normally be presented at trial, to assess the plaintiff's claim as being factually weak. The third and fifth defendants complain that the allegations of fraud against them have not been set out with sufficient specificity. I do not regard this complaint as having merit. The Supreme Court Rules, r 238 permits allegations of fraudulent intention and knowledge to be made without the need to set out the, circumstances giving rise to the inference as to state of mind.
The Land Titles Act, ss 40 and 149, are relevantly as follows:
"40      Estate of registered proprietor indefeasible
(1)   For the purposes of this section indefeasible, in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land.
(2)   Subject to subsections (3) and (4), the title of a registered proprietor of land is indefeasible.
(3)   The title of a registered proprietor of land is not indefeasible –
(a) in the case of fraud, in which case the person defrauded has, … all rights and remedies that he would have had if the land were not registered land;
…
149     Registered proprietor protected against ejectment, except in certain cases
(1)   An action of ejectment or other action for the recovery of registered land shall not lie or be sustained against the person registered as proprietor of the land under this Act, except in the following cases:
…
(d) a person deprived of land by fraud as against the person registered as proprietor of the land through fraud, or as against a person deriving, otherwise than as a transferee bona fide for value, from or through a person so registered through fraud;
…"
The equivalent New South Wales provisions, being the Real Property Act 1990 (NSW), ss 42(1) and 118(1)(d), were considered in Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2, 254 CLR 425.
The provisions at the relevant time were as follows:
"42      Estate of Registered Proprietor Paramount
(1)     Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except
…
118     Registered proprietor protected except in certain cases
(1)     Proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except as follows –
…
(d)proceedings brought by a person deprived of land by fraud against –
(i)    a person who has been registered as proprietor of the land through fraud, or
(ii)   a person deriving (otherwise than as transferee bona fide for valuable consideration) from or through a person registered as proprietor of the land through fraud,
…"
The plurality said in Cassegrain at [58]-[62]:
"It will be recalled that the primary judge held that, although Felicity derived her title as sole registered proprietor through Claude, and not as a transferee of his interest for valuable consideration, s 118(1)(d) did not apply because Claude was not registered as proprietor of the land through fraud. It will further be recalled that the primary judge treated s 118(1)(d)(ii) as dealing only with 'the process by which registration as proprietor' is achieved, a subject said to be narrower and more specific than the fraud exception to s 42(1).
All members of the Court of Appeal rightly rejected this interpretation of s 118(1)(d)(ii). Neither s 118 generally nor s 118(1)(d)(ii) in particular should be read as directed only to fraud in the process of registration. Exactly what would fall within fraud 'in the process' of registration may be open to debate. But it is not a debate that need be had, because s 118 should be construed in a way which is consonant with the operation of s 42(1). In particular, s 118 must not be read in a way which would preclude action to recover the land in a case where the fraud exception to s 42(1) applies. Hence, the reference in s 118(1)(d)(i) to proceedings brought by a person deprived of land by fraud against a person who has been registered as proprietor of the land through fraud must be read as embracing every kind of fraud which falls within the relevant exception to s 42(1). If actual fraud is brought home to the registered proprietor, s 118(1)(d)(i) is engaged and the general bar to proceedings for the possession or recovery of land against that registered proprietor is lifted.
Conversely, but equally importantly, if the fraud exception to s 42(1) does not apply to the person who is registered as proprietor, the general bar to proceedings for the possession or recovery of land against the registered proprietor will apply and the exception provided by s 118(1)(d)(i) will not be engaged. That is, the exception for which s 118(1)(d)(i) provides does not diminish the protection given by s 42(1). It does not enlarge the rights which a person deprived of land by fraud has against the registered proprietor.
By contrast, the exception provided by s 118(1)(d)(ii) does enlarge the rights which a person deprived of land by fraud has against a registered proprietor. Unless the registered proprietor is a transferee bona fide for valuable consideration, a person deprived of land by fraud may bring proceedings for the possession or recovery of the land against a person deriving from or through a person registered as proprietor of the land through fraud. But as with s 118(1)(d)(i), the expression 'registered as proprietor of the land through fraud' must be read in a manner consonant with s 42(1).
Hence, in the present case, Claude, but not Felicity, was registered as proprietor of (an interest in) the land (as joint tenant) through fraud. By the second transfer, Felicity derived from or through Claude an interest as tenant in common as to half. Felicity derived that interest from or through a person registered as proprietor of (an interest in) the land (as joint tenant) through fraud. Felicity was not a transferee of the interest for valuable consideration. Section 118(1)(d)(ii) is thus engaged. Proceedings brought by GC&Co (as a person deprived of the land by fraud) for the recovery of that interest in the land (as tenant in common as to half) lie against Felicity." [Footnotes omitted.]

It follows that if it is proved that the land to which the third defendant still holds title was acquired by the third defendant by reason of it participating in the fraud, the title can be restored to the plaintiff (albeit that she would hold on constructive trust). The claim of the plaintiff against the third defendant for recovery of the unsold land cannot be characterised as weak as a matter of law. Similarly, the claims against the third and fifth defendants for an account and other equitable relief, if fraud is proved against them, cannot be characterised as weak as a matter of law.
The third and fifth defendants have argued that the plaintiff lacks standing to bring the action. They say that as the company appointed by the plaintiff as trustee of the trust has been deregistered and, as the plaintiff as appointor has not appointed a new trustee, the assets of the trust have vested in the Commonwealth as trustee pursuant to the Corporations Act 2001, ss 601AD(1A) and 601AE(1). None of this is disputed by the plaintiff. The third and fifth defendants say that, as a result, the plaintiffs right is only to bring proceedings to have the Commonwealth pursue the claim and that she has no standing to bring the action in her own name.
The general rule that proceedings in respect of trust property should be brought by the trustee is not absolute. There may be special circumstances where a court will entertain an action brought for the benefit of a trust by a beneficiary. This was explained in Alexander v Perpetual Trustee WA Ltd [2004] HCA 7, (2004) 216 CLR 109 at [55] as follows:
"[55] In Ramage v Waclaw, Powell J reviewed many of the authorities, including the judgment of James LJ in Sharpe v San Paulo Railway Co which support the proposition that, where relief is sought in the equitable jurisdiction of the Supreme Court against a third party, a beneficiary may sue in his own name, joining as defendants the trustee and any other beneficiaries, but only where there are 'special circumstances'. One reason for this restriction, given by James LJ in Sharpe, is the avoidance of the vexation of the third party by multiple suits. Powell J held that the 'special circumstances' were not confined to collusion between the trustee and the third party, or the insolvency of the trustee. But the general principle is that stated by Scott:
'The interests of the beneficiaries of a trust are protected against a third person acting adversely to the trustee through proceedings brought against him by the trustee and not by the beneficiaries. As long as the trustee is ready and willing to take the proper proceedings against the third person, the beneficiaries cannot maintain a suit against him'." [Footnotes omitted.]
I decline to consider on the hearing of this application whether the circumstances are special so as to create an exception to the general rule. In my opinion the proper course is for the defendants to apply for the summary dismissal of the action. On such an application the plaintiff might establish special circumstances justifying the bringing of the action in her name, she might obtain the express authority of the Commonwealth to bring the action on behalf of the Commonwealth as trustee, or she might appoint herself as trustee, pursuant to her power to do so under the trust deed, and make an application under the Supreme Court Rules, r 184, to have her name as trustee substituted. The bringing of a summary dismissal application by the defendants would obviate the need for security for costs of preparing for and conducting the trial to be ordered if such application were to be successful.
In any event, the plaintiff claims that she is suing as a trustee on the basis that the two properties were registered in her name immediately prior to the alleged frauds and that she held them in trust. She says that her status is the same as it would have been but for the alleged fraud. Namely, that she held the two properties as constructive trustee, and that after she was substituted with a new trustee, she was obliged to deal with the properties as directed from time to time by whoever might be the trustee under the deed of trust.
In view of the fact that the plaintiff wishes to argue, in the event that the third and fifth defendants apply for summary dismissal on the ground of lack of standing, that she is entitled to bring the action, I decline to give security for costs using as a basis the asserted lack of standing of the plaintiff. As I have said, I regard this as a matter for a discrete summary dismissal application.
Regardless of whether the plaintiff is suing in a representative capacity as trustee or suing in a personal capacity as beneficiary of the trust, absent other circumstances, security for costs cannot be ordered against her. The position has been neatly set out by Ashley J in Perry v Jackson [1998] VSC 143, (1998) 4 VR 463 at 465. His Honour said:
"Before r 62.02(1)(b) of Ch I of the rules was introduced in 1986, the court had power to order that the security for costs be given, this deriving from its inherent power to regulate its own proceeding: Lines v Tana Pty Ltd. [1987] VicRp 53; [1987] VR 641 at 642. A considerable jurisprudence had developed as to the circumstances in which such an order should or might be made. In the case of the plaintiffs who are natural persons, 'The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity': Cowell v Taylor (1885) 31 Ch D 34 at 38 per Bowen LJ. The general rule was subject to exception in the case of so-called 'nominal' plaintiffs. The exception was explained by Baggallay LJ in Cowell as follows at 38: 'Suppose I, having a shadowy case, assign it over to a man of straw that he may sue for my benefit, then security for costs will be ordered.' Bowen LJ described the exception thus at 38:
There is also an exception introduced in order to prevent abuse, that if an insolvent sues as nominal plaintiff for the benefit of somebody else, he must give security. In that case the nominal plaintiff is a mere shadow. The two most familiar classes of cases of this kind are cases where a person has divested himself of his interest and handed it over to someone else that the transferee may sue for him, and cases where a person who has commenced a suit divests himself of his interest during the course of the suit in order that another person may carry it on for his benefit. Those are the common cases, I do not say that there may not be others. In those cases Courts of Common Law required security for costs to be given.
The key to the exception was the prevention of abuse. Executors, administrators, trustees having no interest in the subject matter of the trust, trustees in bankruptcy and at least some liquidators were not required to give security even if impecunious: Sykes v Sykes (1869) L.R. 4 C.P. 645; Rainbow v Kittoe [1916] 1 Ch 313; White v Butt [1909] 1 KB 50; Cowell; Mackie v Clough [1891] VicLawRp 49; (1891) 17 VLR 201. Such persons, though suing for the benefit of others, were not mere nominal plaintiffs. They sued in what might be called a representative capacity. No abuse was involved. "
The third and fifth defendants have conceded that something more than an inability to meet an adverse costs order is required if the application is to succeed. They have said that the plaintiff has a weak case, but I have not been satisfied that the plaintiff's case is weak as either a matter of fact or a matter of law. They have said that the action cannot succeed as the plaintiff lacks standing. I have declined to consider, on this security for costs application, whether that is the case, preferring to leave the matter to be resolved on a discrete summary dismissal application. The argument that the plaintiff is a nominal plaintiff cannot be sustained. She is a primary beneficiary under the terms of the trust and so it cannot be said that she is suing only for the benefit of some other person.
The result is that the justice of the case does not rest with ordering security for costs relying on the inherent jurisdiction. Further, there is no jurisdiction under the rules as the plaintiff, not being a person who "sues only for the benefit of some other person", does not fall within the category specified in r 828(1)(c).
I add that during the course of the hearing on 28 July I said that I would defer publishing my reasons for 14 days to enable the third and fifth defendants to bring an application to have the plaintiff's claim dismissed for lack of standing. I did this on the basis that if such an application was brought and was successful it would negate the need to order security for the costs of preparation for trial and the costs of the trial. If the application was made and dismissed the third and fifth defendants' argument that security for costs should be ordered, at least partly, because of the plaintiff's lack of standing would fall away. Having resolved the application without embarking in any binding or detailed way on an assessment of the lack of standing argument, I have decided to publish these reasons and make the order dismissing the security for costs application rather than deferring my decision.
The order is that the application is dismissed.
I will hear the parties as to costs.