Sun Asia Group Pty Ltd ATF Sun Asia Group Trust v Invigor Group Ltd [2021] NSWSC 1082

Sun Asia Group Pty Ltd ATF Sun Asia Group Trust v Invigor Group Ltd [2021] NSWSC 1082

The Court determined that an order requiring the corporate plaintiffs to provide security for the defendants' costs is justified, but only on the basis of representation by a single set of lawyers, and not in double amounts as sought by two groups of defendants. However, final determination and quantum of security should be deferred until the completion of pleadings and proper defences are served, and SAG must be given the opportunity to grant a security over its Invigor shares (or any replacement asset) to secure payment of costs orders. Parties are to confer and submit short minutes of order for these matters and completion of the pleadings.

Parties
First Plaintiff/respondent: Sun Asia Group Pty Ltd ATF Sun Asia Group Trust; Second Plaintiff/respondent: Sunasia Farm No 10 Pty Ltd (receivers & managers appointed); Third Plaintiff/respondent: Sun Asia Corporation Pty Ltd (receivers & managers appointed); Fourth Plaintiff: Geoffrey Anthony Shannon; Fifth Plaintiff/respondent: Nationlink Solutions Pty Ltd; Sixth Plaintiff/respondent: Emerald Affordable Accommodation Pty Ltd; First Defendant/applicant: Invigor Group Ltd; Second Defendant/applicant: Nehoc Investments Pty Ltd; Third Defendant/applicant: Gary Michael Cohen; Fourth Defendant/applicant: Gregory Hyam Cohen; Fifth Defendant: Michael Craig Brereton; Sixth Defendant: Robert William Whitton; Seventh Defendant: Sean Magnus Wengel; Eighth Defendant/applicant: Marcel Equity Pty Ltd
Jurisdiction
Australia
Judgment Date
26 August 2021
Procedural Posture
Security for Costs Application / Interlocutory Decision; Determination Deferred Until After Service of Defences
Outcome
Determination of the defendants' notices of motion for security for costs is deferred until after service of proper defences; SAG to be given opportunity to grant security over Invigor shares or any replacement asset; parties to confer and submit short minutes of order; corporate plaintiffs to provide affidavit...
Legal Topics
Security for Costs, Impecuniosity, Representation of Corporate Plaintiffs, Misleading and Deceptive Conduct, Consultancy Agreement, Contract Claim, Debt Claim
Civil Procedure Equity Security for Costs Impecuniosity Representation of Corporate Plaintiffs Misleading and Deceptive Conduct Consultancy Agreement Contract Claim +1 more

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Parties

Sun Asia Group Pty Ltd ATF Sun Asia Group Trust

First Plaintiff/respondent

Sunasia Farm No 10 Pty Ltd (receivers & managers appointed)

Second Plaintiff/respondent

Sun Asia Corporation Pty Ltd (receivers & managers appointed)

Third Plaintiff/respondent

Geoffrey Anthony Shannon

Fourth Plaintiff

Nationlink Solutions Pty Ltd

Fifth Plaintiff/respondent

Emerald Affordable Accommodation Pty Ltd

Sixth Plaintiff/respondent

Invigor Group Ltd

First Defendant/applicant

Nehoc Investments Pty Ltd

Second Defendant/applicant

Gary Michael Cohen

Third Defendant/applicant

Gregory Hyam Cohen

Fourth Defendant/applicant

Michael Craig Brereton

Fifth Defendant

Robert William Whitton

Sixth Defendant

Sean Magnus Wengel

Seventh Defendant

Marcel Equity Pty Ltd

Eighth Defendant/applicant

Procedural Posture

Security for Costs Application / Interlocutory Decision; Determination Deferred Until After Service of Defences

Legal Issues

  1. 1 Whether corporate plaintiffs should provide security for defendants' costs under s 1335 Corporations Act and UCPR r 42.21
  2. 2 Whether the separate defendant groups can claim security for costs in similar amounts due to separate representation
  3. 3 If SAG's shareholding in Invigor constitutes an asset to meet costs orders

Ratio Decidendi

The Court determined that an order requiring the corporate plaintiffs to provide security for the defendants' costs is justified, but only on the basis of representation by a single set of lawyers, and not in double amounts as sought by two groups of defendants. However, final determination and quantum of security should be deferred until the completion of pleadings and proper defences are served, and SAG must be given the opportunity to grant a security over its Invigor shares (or any replacement asset) to secure payment of costs orders. Parties are to confer and submit short minutes of order for these matters and completion of the pleadings.

Court Disposition

Determination of the defendants' notices of motion for security for costs is deferred until after service of proper defences; SAG to be given opportunity to grant security over Invigor shares or any replacement asset; parties to confer and submit short minutes of order; corporate plaintiffs to provide affidavit...

Orders

  • Final determination of notices of motion deferred until after defendants have served defences.
  • SAG to be given opportunity to grant security over Invigor shares and/or any replacement asset.