Tyne v UBS AG (No 2)

Case [2014] FCA 1228


FEDERAL COURT OF AUSTRALIA

Tyne v UBS AG (No 2) [2014] FCA 1228

Citation: Tyne v UBS AG (No 2) [2014] FCA 1228
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: 13 November 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

COSTS – consideration of whether the Court has power to award costs to a self represented litigant in circumstances where the litigant has been admitted as a barrister of a state Supreme Court but has never held a practising certificate

Legislation: Federal Court of Australia Act 1976 (Cth), ss 43, 56, 59
Federal Court Rules 2011, rr 1.51, 40.01, 40.02, 40.29; Div 40.2; Pt 40; Schs 2, 3
Judiciary Act 1903 (Cth), ss 55B, 55C
Legal Profession Act 2004 (NSW), ss 4, 5, 6, 14
Cases cited: Cachia v Hanes (1994) 179 CLR 403 – cited and quoted
George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 – cited and quoted
Guss v Veenhuizen (No 2) (1976) 136 CLR 47 – cited and quoted
London Scottish Benefit Society v Chorley (1884) 13 QBD 872 – cited
Tyne v UBS AG [2014] FCA 1073 – cited and quoted
Von Reisner v Commonwealth (No 2) (2009) 262 ALR 430 – cited
Date of hearing: 18 March 2014
Date of last submissions: 6 November 2014
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 34
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:

13 NOVEMBER 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to rr 1.32 and 1.36 of the Federal Court Rules 2011 the following Orders are made from Chambers.

2.The interlocutory application for security for costs filed by the respondent on 18 February 2014 is dismissed. 

3.There be no order as to the costs of the application referred to in Order 2.   

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


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:

13 NOVEMBER 2014

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. On 3 October 2014, I published a judgment which considered an interlocutory application filed by…

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AGLC
Tyne v UBS AG (No 2) [2014] FCA 1228
Case
[2014] FCA 1228
Decision Date

CaseChat Overview and Summary

In the case of Tyne v UBS AG (No 2), the plaintiff, a trustee of a unit trust, brought an action against UBS AG. The respondent sought security for costs, claiming that the plaintiff was impecunious and could not cover the costs of the proceedings. The matter was heard in the Federal Court of Australia. The primary issue before the Court was whether the respondent was entitled to an order for security for costs given the plaintiff's status as a trustee of a unit trust. Another issue was whether the Court could award costs to a self-represented litigant who had been admitted as a barrister of a state Supreme Court but had never held a practising certificate.

The Court dismissed the respondent's application for security for costs. The Court found that the plaintiff was not impecunious, as the unit trust was not insolvent and had sufficient assets to cover the costs of the proceedings. The Court also held that the fact that the plaintiff was the trustee of a unit trust did not make them impecunious per se. The Court found that the plaintiff was able to fund the costs of the proceedings from the trust's assets. Regarding the second issue, the Court held that it did not have the power to award costs to a self-represented litigant who had been admitted as a barrister but had never held a practising certificate. The Court found that the plaintiff's status as a barrister did not entitle them to costs, as they were not acting in a professional capacity in the proceedings.

There were no orders as to the costs of the application. The Court made orders dismissing the respondent's interlocutory application for security for costs and making no order as to the costs of the application.

Orders

Orders of the court

1. Pursuant to rr 1.32 and 1.36 of the Federal Court Rules 2011 the following Orders are made from Chambers.

2. The interlocutory application for security for costs filed by the respondent on 18 February 2014 is dismissed.

3. There be no order as to the costs of the application referred to in Order 2.

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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