Tyne v UBS AG - [2014] FCA 1073

FEDERAL COURT OF AUSTRALIA
Tyne v UBS AG [2014] FCA 1073

Citation: Tyne v UBS AG [2014] FCA 1073

Parties: SCOTT FRANCIS TYNE AS TRUSTEE OF THE ARGOT TRUST and CLARE ELIZABETH MARKS v UBS AG

File number(s): QUD 10 of 2014

Judge(s): GREENWOOD J

Date of judgment: 3 October 2014

Catchwords: PRACTICE AND PROCEDURE – consideration of an application for security for costs by a respondent in circumstances where the first applicant in the proceeding is an individual who is the trustee of a unit trust – consideration of the circumstances of impecuniosity on the part of the trustee – consideration of whether an order will stultify and foreclose the proceedings – consideration of whether the pleaded conduct is conduct said to have given rise to the impecuniosity of the trustee and the depletion of the trust assets – consideration of previous litigation in Singapore and in the New South Wales Supreme Court – consideration of anti‑suit injunction orders made in the High Court of the Republic of Singapore and a stay order made in the New South Wales Supreme Court – consideration of the parties to those proceedings and the content of those orders – consideration of the effect upon a security for costs order of the role of a further applicant in the proceedings

Legislation: Federal Court of Australia Act 1976 (Cth), s 56
Federal Court Rules 2011 – r 19.01
Australian Securities and Investments Commission Act 2001 (Cth), s 12DA
Corporations Act 2001 (Cth), s 1041H
Fair Trading Act 1987 (NSW), s 42
Fair Trading Act 1989 (Qld), s 38

Cases cited: Telesto Investments Ltd v UBS AG (2012) 262 FLR 119 - cited
Telesto Investments Limited v UBS AG (2013) 94 ACSR 29 - cited
ACN 074 971 109 Pty Ltd (as trustee for the Argot Unit Trust) v The National Mutual Life Association of Australasia Ltd (No 2) [2012] VSC 177 - cited
Bell Wholesale Co Pty Ltd v Gates Export Corp (1984) 2 FCR 1 - cited

Date of hearing: 18 March 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 157

Counsel for the Applicants: Mr Tyne appeared in person

Counsel for the Respondent: Mr J Stoljar SC with Mr L Livingston

Solicitor for the Respondent: King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 10 of 2014

BETWEEN:
SCOTT FRANCIS TYNE AS TRUSTEE OF THE ARGOT TRUST
First Applicant

CLARE ELIZABETH MARKS
Second Applicant

AND:
UBS AG
Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

3 OCTOBER 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for security for costs made by the respondent is adjourned generally.
2.The first applicant is directed to file in the Court and serve upon the respondent, within 30 days, an affidavit exhibiting the following documents:

(a) a copy of the Trust Deed for the Argot Unit Trust;
(b)a copy of the profit and loss statements and balance sheets for the Argot Unit Trust for the financial…

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 Tyne v UBS AG

Details

AGLC: Tyne v UBS AG [2014] FCA 1073
Case: [2014] FCA 1073
Decision Date: 3 October 2014

CaseChat Overview and Summary

The case of Tyne v UBS AG involved an application for security for costs by the respondent, UBS AG, against the first applicant, who is the trustee of a unit trust. The dispute between the parties stems from issues related to the management and financial status of the Argot Unit Trust. The matter was before the Federal Court of Australia, which was required to determine the legal issues surrounding the application for security for costs.

The court had to consider whether the trustee, as the first applicant, was impecunious and whether an order for security for costs would stultify or foreclose the proceedings. The court also had to examine the circumstances of the trustee's impecuniosity, whether the conduct pleaded by the respondent had led to the trustee's impecuniosity and the depletion of trust assets, and whether the trustee's conduct had any connection to the proceedings. The court examined previous litigation in Singapore and in the New South Wales Supreme Court, including anti-suit injunction orders made in the High Court of Singapore and a stay order made in the New South Wales Supreme Court. The court also considered the roles of the parties in those proceedings and the content of those orders.

The Federal Court adjourned the application for security for costs generally and directed the first applicant to file and serve certain documents within 30 days. The court also reserved the costs of the application for security for costs. The orders made by the court are in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for security for costs made by the respondent is adjourned generally.

2. The first applicant is directed to file in the Court and serve upon the respondent, within 30 days, an affidavit exhibiting the following documents:

(a) a copy of the Trust Deed for the Argot Unit Trust;

(b) a copy of the profit and loss statements and balance sheets for the Argot Unit Trust for the financial years ending 30 June 2013 and 30 June 2014.

3. The costs of the application for security for costs are reserved.

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

Background

Background to the litigation

Full text does not contain this section.

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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Citation:	Tyne v UBS AG [2014] FCA 1073
Parties:	SCOTT FRANCIS TYNE AS TRUSTEE OF THE ARGOT TRUST and CLARE ELIZABETH MARKS v UBS AG
File number(s):	QUD 10 of 2014
Judge(s):	GREENWOOD J
Date of judgment:	3 October 2014
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application for security for costs by a respondent in circumstances where the first applicant in the proceeding is an individual who is the trustee of a unit trust – consideration of the circumstances of impecuniosity on the part of the trustee – consideration of whether an order will stultify and foreclose the proceedings – consideration of whether the pleaded conduct is conduct said to have given rise to the impecuniosity of the trustee and the depletion of the trust assets – consideration of previous litigation in Singapore and in the New South Wales Supreme Court – consideration of anti‑suit injunction orders made in the High Court of the Republic of Singapore and a stay order made in the New South Wales Supreme Court – consideration of the parties to those proceedings and the content of those orders – consideration of the effect upon a security for costs order of the role of a further applicant in the proceedings
Legislation:	Federal Court of Australia Act 1976 (Cth), s 56 Federal Court Rules 2011 – r 19.01 Australian Securities and Investments Commission Act 2001 (Cth), s 12DA Corporations Act 2001 (Cth), s 1041H Fair Trading Act 1987 (NSW), s 42 Fair Trading Act 1989 (Qld), s 38
Cases cited:	Telesto Investments Ltd v UBS AG (2012) 262 FLR 119 - cited Telesto Investments Limited v UBS AG (2013) 94 ACSR 29 - cited ACN 074 971 109 Pty Ltd (as trustee for the Argot Unit Trust) v The National Mutual Life Association of Australasia Ltd (No 2) [2012] VSC 177 - cited Bell Wholesale Co Pty Ltd v Gates Export Corp (1984) 2 FCR 1 - cited
Date of hearing:	18 March 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	157
Counsel for the Applicants:	Mr Tyne appeared in person
Counsel for the Respondent:	Mr J Stoljar SC with Mr L Livingston
Solicitor for the Respondent:	King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 10 of 2014

JUDGE:	GREENWOOD J
DATE OF ORDER:	3 OCTOBER 2014
WHERE MADE:	BRISBANE