Legal Research
Cases
Tyne v UBS AG (No 2)

Tyne v UBS AG (No 2)

Case [2014] FCA 1228 13 November 2014

Type to search within this case.

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

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

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 (No 2)

Details

AGLC: Tyne v UBS AG (No 2) [2014] FCA 1228
Case: [2014] FCA 1228
Decision Date: 13 November 2014

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tyne v UBS AG (No 2) [2014] FCA 1228

Most Recent Citation

Beling v Sixty International S.A. [2015] FCA 250

Cases citing this decision · 8 of 8 shown

Scott v Steritech Pty Ltd
[2025] FCAFC 110 Para 12

…nued as well as those that have proceeded to judgment (at [31], referring to reasoning of Dowsett J in Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5; 250 FCR 341 that was effectively endorsed by the plurality in the High Court in UBS v Tyne ). Given the agreement to settle the Circuit Court proceeding, the ter…
Wilson v Allen (No 2)
[2024] ACTSC 13

…ts Pty Ltd [2009] ACTSC 149; 19 ACTLR 1 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 Tyne v UBS AG (No 2) [2017] FCAFC 5; 250 FCR 341 Tyne v UBS AG (No 3) [2016] FCA 5; 236 FCR 1 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Wilson v Allen [2023] ACTSC 257 U…
Dr August Wolff GmbH and Co. KG Arzneimittel v Combe International Ltd (No 2)
[2020] FCA 730 Para 9

…anes [1994] HCA 14; 179 CLR 403 at 410, 411 and 417; CGU Workers Compensation (Vic) Ltd v Rees [2003] VSCA 18; 6 VR 227 at [12]; Tyne v UBS AG (No 2) [2014] FCA 1228 at [22]-[23]. The sum of approximately $9,300 should accordingly be subtracted from what Dr Wolff claims, before other deductions are effected. The d…
Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People
[2019] FCAFC 177

…6; 122 CLR 353 Tomlinson v Ramsey Food Processing [2015] HCA 28; 256 CLR 507 Tyne v UBS AG (No 2) [2017] FCAFC 5; 250 FCR 341 UBS AG v Tyne [2018] HCA 45; 360 ALR 184 Walton v Gardiner [1993] HCA 77; 177 CLR 378 Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA…
Bashour v Australian and New Zealand Banking Group Limited
[2017] FCA 163 Para 10

…of practitioners (citing George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 at [14]). The principle is applied strictly (citing Tyne v UBS AG (No 2) [2014] FCA 1228). The requirement is that the lawyer be capable of representing a private litigant, such as himself or herself, in the relevant court (citing Rambald…
Titan Enterprises (Qld) Pty Ltd v Cross
[2016] FCA 1275 Para 12

…n only a partial indemnity: Cachia v Hanes (1994) 179 CLR 403 at 410 and 411 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ; Tyne v UBS AG (No 2) [2014] FCA 1228 at [23]] per Greenwood J. That longstanding feature of costs inter partes has no application to a non-party. The intent of the reform introduced in t…
Tyne v UBS AG
[2016] FCA 241 Para 23

…ets which might be made the subject of an order for security for costs in support of the trustee’s right of indemnity” ( Tyne v UBS AG (No 2) [2014] FCA 1228 [10]). In an earlier judgment on security for costs, his Honour also concluded that the beneficiaries of the Argot Trust also have no capacity to pay costs.…
Beling v Sixty International S.A.
[2015] FCA 250 Para 1

…Recently in Tyne v UBS AG (No 2) [2014] FCA 1228, Greenwood J has set out the authorities in some detail: see [23]-[24]. Consistently with previous authorities, his Honour recognised the continued existence of the solicitor litigant exception in relation to the rule that self-represented parties could not secure a…

View all 8 citing cases →

Cases cited in this decision · 9 of 9 shown

Tyne v UBS AG
[2014] FCA 1073 Para 1

…rity for the costs UBS will incur in defending the principal proceedings, which costs might be awarded against the first applicant: Tyne v UBS AG [2014] FCA 1073 (the “October reasons”).…
George v Fletcher (Trustee) (No 2)
[2010] FCAFC 71 Para 15

…le. Ordinarily, therefore, the discretion will be exercised to the end that costs follow the event ( George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 (“ George v Fletcher ”) at [12]), subject to the particular circumstances of the case.…
Von Reisner v Commonwealth of Australia (No 2)
[2009] FCAFC 172 Para 2

…the conduct of the litigation) such as filing fees or the cost of copying appeal books: George v Fletcher at [17]; Von Reisner v Commonwealth (No 2) (2009) 262 ALR 430 at [24]. However, Mr Tyne’s submissions do not seek orders that he be reimbursed any costs of this kind, nor is there any suggestion on the evidence…
von Reisner v Commonwealth
[2009] FCAFC 97 Para 2

…It might have been possible for Mr Tyne to seek to recover any amount he has paid in court costs actually incurred (comprising out of pocket expenses actually, necessarily and reasonably incurred in the conduct of the litigation) such as filing fees or the cost of copying appeal books: George v Flet…
Cachia v Hanes
[1994] HCA 14 Para 16

…er of any amount of costs in respect of time spent in the preparation of his or her case or in the presentation of that case in court: Cachia v Hanes (1994) 179 CLR 403. Insofar as the judgment of the Full Court in Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288 stands for the pr…
Secretary of the Department of Foreign Affairs and Trade v Boswell, S
[1992] FCA 971 Para 16

…: Cachia v Hanes (1994) 179 CLR 403. Insofar as the judgment of the Full Court in Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288 stands for the proposition that a non practitioner party can recover an amount in respect of earnings shown to have been lost while preparing or pres…
Guss v Veenhuizen (No 2)
[1976] HCA 57 Para 24

…costs as if a solicitor had been retained. The rationale for the exception, recognised and accepted by the High Court ( Guss v Veenhuizen (No 2) (1976) 136 CLR 47 at 51), is that each step taken by the solicitor acting in person is able to be precisely quantified by, in this case, reference to the Schedules to the…
After London Scottish Benefit Society v Chorley
(1884) 13 QBD 872 Para 18

…appear before this Court” [emphasis added], it was “unnecessary to consider whether, having regard to London Scottish Benefit Society v Chorley (1884) 13 QBD 872, she should, exceptionally, and perhaps questionably ( Cachia v Hanes at 412-414), be allowed any amount in respect of legal professional costs in respect…
London Scottish Benefit Society v Chorley
(1884) 12 QBD 452 Para 18

…was “not a legal practitioner entitled to appear before this Court” [emphasis added], it was “unnecessary to consider whether, having regard to London Scottish Benefit Society v Chorley (1884) 13 QBD 872, she should, exceptionally, and perhaps questionably ( Cachia v Hanes at 412-414), be allowed any amount in respect of legal professional costs…

Legislation cited in this decision · 4

Federal Court Rules 2011 (Cth)
1.51, 40.01, 40.02, 40.29 5 mentions
Federal Court of Australia Act 1976 (Cth)
43, 56, 59 4 mentions (from Para 3)
Legal Profession Act 2004 (Vic)
14, 4, 5, 6 4 mentions
Judiciary Act 1903 (Cth)
55B, 55C 3 mentions (from Para 17)

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

JUDGE:	GREENWOOD J
DATE OF ORDER:	13 NOVEMBER 2014
WHERE MADE:	BRISBANE

JUDGE:	GREENWOOD J
DATE:	13 NOVEMBER 2014
PLACE:	BRISBANE