Tonks, in the matter of Ambient Rail Pty Ltd (in liq) v Fishwick [2020] FCA 1755

Tonks, in the matter of Ambient Rail Pty Ltd (in liq) v Fishwick [2020] FCA 1755

Given the plaintiffs' concession of insolvency, presence of commercial litigation funder, lack of undertakings to meet costs orders, and early stage of proceedings without evidence of merits or prejudice, it is just to order substantial security for the defendants' costs, payable in tranches. There is no basis on current material to remove Mr Tonks as a party.

Jurisdiction
Australia
Judgment Date
08 December 2020
Procedural Posture
Interlocutory Application in Commercial Litigation / Ruling on Security for Costs and Application for Removal of Party
Outcome
Applications for security for costs granted; application to remove Mr Tonks as party dismissed.
Legal Topics
['security for Costs' 'litigation Funding' 'removal of Party in Proceedings']
['practice and Procedure' 'corporations Law'] ['security for Costs' 'litigation Funding' 'removal of Party in Proceedings']

Case Brief

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Procedural Posture

Interlocutory Application in Commercial Litigation / Ruling on Security for Costs and Application for Removal of Party

Legal Issues

  1. 1 ['Should the plaintiffs (including a funded, insolvent corporation) be ordered to provide security for costs?' 'Should Mr Tonks (liquidator) be removed as a party to the proceeding?']

Ratio Decidendi

Given the plaintiffs' concession of insolvency, presence of commercial litigation funder, lack of undertakings to meet costs orders, and early stage of proceedings without evidence of merits or prejudice, it is just to order substantial security for the defendants' costs, payable in tranches. There is no basis on current material to remove Mr Tonks as a party.

Court Disposition

Applications for security for costs granted; application to remove Mr Tonks as party dismissed.

Orders

  • ["Plaintiffs to provide security for defendants' costs in two tranches: $733,303.79 for Fishwick Parties and $376,110.19 for Conder Parties." 'Security to be paid via court payment or irrevocable bank guarantee unless parties agree otherwise.' 'Proceedings stayed until security is provided; failure to provide...