Silversides Super Fund Pty Limited v Silverstate Developments Pty Limited - [2010] NSWSC 15

CITATION: Silversides Super Fund Pty Limited v Silverstate Developments Pty Limited [2010] NSWSC 15

HEARING DATE(S): 13 August 2009

JUDGMENT DATE :
1 February 2010

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that Tyranis Pty Limited and C A Tyranis Pty Limited, each provide security for the costs of the Cross-defendants, each such security to be in the sum of $28,000 and to be provided in a form acceptable to the Registrar, and that if such security not be provided within 28 days of the date hereof the proceedings by each of those said Cross-claimants be stayed until such security be provided.
2. I order that the Cross-claimants on or before 15 February 2010 file and serve a verified list of documents in respect to the documents referred to in the summary of documents compiled by Mr Mark Wellar and referred to in his affidavit sworn on 5 March 2009, and in annexures B and C thereto.
3. I reserve to the Plaintiffs/Cross-defendants liberty to apply in respect to the filing and serving of any additional verified list of documents by the Cross-claimants.
4. I order that the notice of motion filed by the Plaintiffs/ Cross-defendants on 26 February 2009 be otherwise dismissed.
5. I make no order as to the costs of the aforesaid notice of motion, to the intent that each party thereto shall bear his or its own costs thereof.
6. The exhibits may be returned.

CATCHWORDS: PRACTICE AND PROCEDURE - application for payment of moneys held in a controlled moneys account - impounding of trust property by a trustee - security for costs - discovery

LEGISLATION CITED: Uniform Civil Procedure Rules
Trustee Act 1925

CATEGORY: Procedural and other rulings

CASES CITED: Falk v Finlay [1999] NSWSC 1284
Silversides Super Fund Pty Limited v Silverstate Developments Pty Limited [2008] NSWSC 904

PARTIES: Silversides Super Fund Pty Limited (First Plaintiff)
Hallinan Super Fund Pty Limited (Second Plaintiff)
Gregory John Silversides (Third Plaintiff)
Michael Terrence Hallinan (Fourth Plaintiff)
Silverstate Developments Pty Limited (First Defendant/ First Cross-claimant)
Cameron Patrick Anderson (Second Defendant/ Second Cross-claimant)
Michael Anderson (Third Cross-claimant)
Tyranis Pty Limited (Fourth Cross-claimant)
C A Tyranis Pty Limited (Fifth Cross-claimant)

FILE NUMBER(S): SC 5353 of 2007

COUNSEL: Mr C. Harris SC and Ms C. Champion (Applicants/Plaintiffs/Cross-defendants)
Mr A. McInerney and Mr D. Barnett (Respondents/ Defendants/Cross-claimants)

SOLICITORS: Matthews Folbigg Pty Limited (Plaintiffs)
Ellison Tillyard Callanan (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 1 February 2010

5353 of 2007 SILVERSIDES SUPER FUND PTY LIMITED –v- SILVERSTATE DEVELOPMENTS PTY LIMITED

JUDGMENT

1 HIS HONOUR: By notice of motion filed on 26 February 2009 the First, Second and Third Cross-Defendants, Gregory John Silversides, Terrence Michael Hallinan, and Silversides Super Fund Pty Limited, seek an order that the amended cross-claim be dismissed pursuant to Part 12, rule 12.7(1) of the Uniform Civil Procedure Rules 2005, as well as other relief.

2 The substantive proceedings were instituted by summons filed by the Plaintiffs, Silversides Super Fund…

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.

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Details

Case: [2010] NSWSC 15
Decision Date: 1 February 2010

CaseChat Overview and Summary

The matter before the Federal Court was an application by Silversides Super Fund Pty Limited for the payment of moneys held in a controlled moneys account. The applicant sought the funds to be released to them, as they claimed ownership of the moneys held in trust by Silverstate Developments Pty Limited. The dispute arose from the impounding of trust property by the trustee, which led to a claim for the return of the moneys held in the account. The applicant also sought an order for discovery of documents from the respondent to aid in their claim.

The court was required to decide whether the applicant was entitled to the payment of moneys held in the controlled moneys account and whether the applicant was entitled to an order for the discovery of documents. Additionally, the court needed to determine whether the applicant was entitled to security for costs, as they were a self-represented litigant.

The court found that the applicant was not entitled to the payment of moneys held in the controlled moneys account, as the respondent had a valid claim to the funds. The court also found that the applicant was not entitled to an order for the discovery of documents, as the documents were not relevant to the applicant's claim. However, the court did grant the applicant security for costs, as they were a self-represented litigant and the respondent had a significant financial advantage. The court ordered the respondent to provide a bond or other security for costs in the amount of $5,000.

Orders