Tugrul v Tarrants Financial Consulting Pty Limited ACN 086 674 179
[2014] NSWSC 1881
•04 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: Tugrul v Tarrants Financial Consulting Pty Limited ACN 086 674 179 [2014] NSWSC 1881 Hearing dates: 4 December 2014 Decision date: 04 December 2014 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: “Otherwise ordered” under UCPR r42.20
Legislation Cited: Uniform Civil Procedure Rules, Part 42, r 20 Category: Principal judgment Parties: Ken Tugrul (first plaintiff)
Kellie Tugrul (second plaintiff)
Daniel Tugrul (third plaintiff)
Nassrin Tugrul (fourth plaintiff)
K Bricks Pty Limited ACN 097 871 148 (fifth plaintiff)
Tarrants Financial Consultants Pty Limited AC 086 674 179 (first defendant)
Meryn Ross Tarrant (second defendant)
Stefanie Seco (third defendant)
Dual Australia Limited as agent for Lumley General Insurance Limited ABN 24 000 036 279 and Dual Australia Limited as agent for Westfarmers General Insurance Limited ABN 24 000 036 279 trading as Lumley general (fourth defendants)Representation: Counsel:
Solicitors:
R Watson (solicitor) (plaintiffs)
M F Newton (second defendant)
RMB lawyers (plaintiffs)
Thomsons Lawyers (second defendant)
File Number(s): 2009/291166
Judgment – ex tempore
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HIS HONOUR: In these longstanding proceedings the parties, save for the first defendant which is a company in liquidation, had entered into a deed of settlement and agreed that orders should be made disposing of the proceedings on the footing that the proceedings be dismissed and there be no order as to costs.
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By letters of 21 November and 1 December 2014, the liquidator of the first defendant asserts that he has incurred costs in dealing with the litigation and unless those costs and fees are paid as part of the settlement he will not consent to the proposed short minutes.
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The fourth defendant is the professional indemnity insurer of the first defendant and, without descending into the detail, the terms of the settlement have the effect that the plaintiff will recover a substantial sum on account of its claim against the first defendant, though not directly from the first defendant. In that way, it may be said that the plaintiff has achieved a substantial measure of success in the proceedings, the consequence of which is that it is no longer necessary or desirable to prosecute the claim against the insured. That, to my mind, does not provide any basis for thinking there should be an order for costs in favour of the liquidator.
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Although the liquidator has copied his correspondence to the court and has asked that it be handed up to the court, and is on notice of the hearing today, he has not appeared to make submissions.
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In my view, this case is one in which it is appropriate to make an “otherwise order” for the purposes of Uniform Civil Procedure Rules, Part 42, r 20.
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The court orders that:
All outstanding notices of motion be dismissed.
All outstanding unpaid costs orders made in the proceedings be set aside.
The proceedings be dismissed.
There be no order as to costs to the intent that each party bear its own costs
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And the court notes that these orders are made with the consent of the plaintiff and the second, third and fourth defendants.
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Decision last updated: 15 January 2015
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