Silversides Super Fund Pty Limited v Silverstate Developments Pty Limited [2010] NSWSC 15

Silversides Super Fund Pty Limited v Silverstate Developments Pty Limited [2010] NSWSC 15

Security for costs was appropriate against cross-claimants Tyranis Pty Limited and C A Tyranis Pty Limited, each in the sum of $28,000, given their lack of assets and the ultimate benefit of any success would accrue to a single individual; but not against Silverstate Developments Pty Limited as it is also a defendant to the main proceedings. Payment out of the controlled moneys account was refused as such relief should only occur upon substantive determination of entitlement. The cross-claimants were ordered to provide discovery by way of a verified list relating to documents summarised by Mr Mark Wellar.

Parties
First Plaintiff/cross Defendant: Silversides Super Fund Pty Limited; Second Plaintiff/cross Defendant: Hallinan Super Fund Pty Limited; Third Plaintiff/cross Defendant: Gregory John Silversides; Fourth Plaintiff/cross Defendant: Michael Terrence Hallinan; First Defendant/first Cross Claimant: Silverstate Developments Pty Limited; Second Defendant/second Cross Claimant: Cameron Patrick Anderson; Third Cross Claimant: Michael Anderson; Fourth Cross Claimant: Tyranis Pty Limited; Fifth Cross Claimant: C A Tyranis Pty Limited
Jurisdiction
Australia
Judgment Date
01 February 2010
Procedural Posture
Procedural and Other Rulings / Interlocutory Application—security for Costs, Discovery, and Other Procedural Relief
Outcome
Cross-defendants' notice of motion allowed in part: security for costs ordered against Tyranis Pty Limited and C A Tyranis Pty Limited, discovery ordered, otherwise dismissed; no order as to costs.
Legal Topics
Security for Costs, Discovery, Trustees and Beneficiaries, Controlled Moneys Accounts, Impounding of Trust Property
Civil Procedure Equity Security for Costs Discovery Trustees and Beneficiaries Controlled Moneys Accounts Impounding of Trust Property

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Parties

Silversides Super Fund Pty Limited

First Plaintiff/cross Defendant

Hallinan Super Fund Pty Limited

Second Plaintiff/cross Defendant

Gregory John Silversides

Third Plaintiff/cross Defendant

Michael Terrence Hallinan

Fourth Plaintiff/cross Defendant

Silverstate Developments Pty Limited

First Defendant/first Cross Claimant

Cameron Patrick Anderson

Second Defendant/second Cross Claimant

Michael Anderson

Third Cross Claimant

Tyranis Pty Limited

Fourth Cross Claimant

C A Tyranis Pty Limited

Fifth Cross Claimant

Procedural Posture

Procedural and Other Rulings / Interlocutory Application—security for Costs, Discovery, and Other Procedural Relief

Legal Issues

  1. 1 Whether security for costs should be ordered against corporate cross-claimants
  2. 2 Whether orders should be made for payment of moneys held in a controlled moneys account
  3. 3 Appropriate scope of discovery to be ordered

Ratio Decidendi

Security for costs was appropriate against cross-claimants Tyranis Pty Limited and C A Tyranis Pty Limited, each in the sum of $28,000, given their lack of assets and the ultimate benefit of any success would accrue to a single individual; but not against Silverstate Developments Pty Limited as it is also a defendant to the main proceedings. Payment out of the controlled moneys account was refused as such relief should only occur upon substantive determination of entitlement. The cross-claimants were ordered to provide discovery by way of a verified list relating to documents summarised by Mr Mark Wellar.

Court Disposition

Cross-defendants' notice of motion allowed in part: security for costs ordered against Tyranis Pty Limited and C A Tyranis Pty Limited, discovery ordered, otherwise dismissed; no order as to costs.

Orders

  • Tyranis Pty Limited and C A Tyranis Pty Limited to provide security for costs of the Cross-defendants, each in the sum of $28,000, in a form acceptable to the Registrar, within 28 days or their cross-claims are stayed until such security is provided.
  • Cross-claimants to file and serve a verified list of documents by 15 February 2010 relating to the documents referred to in Mr Mark Wellar's affidavit and annexures B and C.