Kayler-Thomson v Colonial First State Investments Limited [2020] FCA 1867

Kayler-Thomson v Colonial First State Investments Limited [2020] FCA 1867

The merits of the applicants' principal claims are to be treated as a neutral factor at this interlocutory stage as full evidence and discovery are incomplete. Accordingly, the presence of a commercial litigation funder and the reasonable solicitor's estimate of discovery costs justifies ordering further security for costs in the sum specified. Other claimed discretionary factors (such as group member characteristics and public interest) do not outweigh the basis for ordering security in the circumstances.

Parties
First Applicant: Keith Kayler-Thomson; Second Applicant: Peter Currie; First Respondent: Colonial First State Investments Limited (ACN 002 348 352); Second Respondent: Commonwealth Bank of Australia (ACN 123 123 124); Third Respondent: Avanteos Investments Limited (ACN 096 259 979)
Jurisdiction
Australia
Judgment Date
23 December 2020
Procedural Posture
Representative Proceeding (group/class Action) / Application for Further Security for Costs; Interlocutory Decision
Outcome
Application for further security for costs granted.
Legal Topics
Security for Costs, Trustees' Duties, Superannuation Investments, Representative Proceedings
Commercial Law Corporations Law Banking and Finance Law Superannuation Law Security for Costs Trustees' Duties Superannuation Investments Representative Proceedings

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Parties

Keith Kayler-Thomson

First Applicant

Peter Currie

Second Applicant

Colonial First State Investments Limited (ACN 002 348 352)

First Respondent

Commonwealth Bank of Australia (ACN 123 123 124)

Second Respondent

Avanteos Investments Limited (ACN 096 259 979)

Third Respondent

Procedural Posture

Representative Proceeding (group/class Action) / Application for Further Security for Costs; Interlocutory Decision

Legal Issues

  1. 1 Whether applicants should be ordered to provide further security for costs and quantum
  2. 2 Assessment of merits of principal claims
  3. 3 Relevance of group members' characteristics and public interest

Ratio Decidendi

The merits of the applicants' principal claims are to be treated as a neutral factor at this interlocutory stage as full evidence and discovery are incomplete. Accordingly, the presence of a commercial litigation funder and the reasonable solicitor's estimate of discovery costs justifies ordering further security for costs in the sum specified. Other claimed discretionary factors (such as group member characteristics and public interest) do not outweigh the basis for ordering security in the circumstances.

Court Disposition

Application for further security for costs granted.

Orders

  • Applicants to provide to respondents further security for costs in the sum of $2,317,743 within 28 days in a form to be agreed or as further determined by the Court.
  • Applicants to pay respondents' costs of and incidental to the respondents' application for security.