Sun Asia Group Pty Ltd ATF Sun Asia Group Trust v Invigor Group Ltd (No 2) [2022] NSWSC 815

Sun Asia Group Pty Ltd ATF Sun Asia Group Trust v Invigor Group Ltd (No 2) [2022] NSWSC 815

The earlier basis for treating a charge over SAG's Invigor shares as adequate security was undermined because the trading suspension had lifted and the shares' market value was shown to be only $86,041.71. The filed defences showed genuine justiciable issues on the second and third claims, and the pleadings and causation defence justified separate representation and separate moderate security amounts for the two defendant groups. Accordingly, the corporate plaintiffs were ordered to provide conventional security by bank guarantee or payment into Court, with the proceedings stayed until security was provided.

Jurisdiction
Australia
Judgment Date
20 June 2022
Procedural Posture
Security for Costs Notices of Motion / Further Hearing After Principal Judgment; Orders Made for Security for Costs
Outcome
Security for costs ordered; proceedings stayed until security is provided; costs of the notices of motion ordered to be costs in the cause.
Legal Topics
['security for Costs' 'quantum and Form of Security' 'corporate Plaintiffs' 'stay of Proceedings' 'costs of Notices of Motion']
['civil Procedure' 'corporations'] ['security for Costs' 'quantum and Form of Security' 'corporate Plaintiffs' 'stay of Proceedings' 'costs of Notices of Motion']

Case Brief

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Procedural Posture

Security for Costs Notices of Motion / Further Hearing After Principal Judgment; Orders Made for Security for Costs

Legal Issues

  1. 1 ["Whether the corporate plaintiffs should provide security for the defendants' costs under s 1335 of the Corporations Act 2001 (Cth) and Uniform Civil Procedure Rules 2005 (NSW), r 42.21." "Whether a charge over SAG's Invigor shares remained adequate security after trading suspension was lifted and the market value of the shares declined." "Whether the defendants' costs of defending the second and third claims should be included in the security amount after defences were filed." 'Whether separate legal representation for the two groups of defendants justified separate security amounts.' 'Whether to make an advance dismissal or guillotine order if security was not provided.' 'What costs order should be made in respect of the security for costs notices of motion.']

Ratio Decidendi

The earlier basis for treating a charge over SAG's Invigor shares as adequate security was undermined because the trading suspension had lifted and the shares' market value was shown to be only $86,041.71. The filed defences showed genuine justiciable issues on the second and third claims, and the pleadings and causation defence justified separate representation and separate moderate security amounts for the two defendant groups. Accordingly, the corporate plaintiffs were ordered to provide conventional security by bank guarantee or payment into Court, with the proceedings stayed until security was provided.

Court Disposition

Security for costs ordered; proceedings stayed until security is provided; costs of the notices of motion ordered to be costs in the cause.

Orders

  • ['Order pursuant to s 1335 of the Corporations Act 2001 (Cth) and Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1)(d) that the first, second, third, fifth and sixth plaintiffs provide security for costs of the first, third and eighth defendants in the sum of $161,817.14.' 'Order pursuant to s 1335 of the...