Equititrust Limited v RM Walsh Land Holdings Pty Ltd [2012] NSWSC 427

Equititrust Limited v RM Walsh Land Holdings Pty Ltd [2012] NSWSC 427

Equititrust’s right of indemnity against EIF’s assets is available and sufficient to satisfy a potential costs order; no current evidence justifies suspending that right as there is no established breach of trust. Consequently, security for costs is refused.

Parties
Plaintiff: Equititrust Limited ACN 061 383 944; First Defendant: RM Walsh Holdings Pty Ltd ACN 095 225 502 (Receiver and Manager Appointed); Second Defendant: J Delahunty Land Holdings Pty Ltd ACN 116 764 502 (Receivers and Managers Appointed); Third Defendant: Byron Bay Land Development Pty Ltd ACN 106 666 648 (Receiver and Manager Appointed); Fourth Defendant: Richard Martin Walsh; Fifth Defendant: Western Land Corporation Pty Ltd ACN 126 173 206 (Receivers and Managers Appointed); Sixth Defendant: Perivale Capital Pty Ltd ACN 124 259 150 (Receivers and Managers Appointed)
Jurisdiction
Australia
Judgment Date
04 May 2012
Procedural Posture
Civil / Interlocutory Application (security for Costs)
Outcome
Defendants' application for security for costs dismissed.
Legal Topics
Security for Costs, Corporate Insolvency, Trustee Indemnity, Costs Orders
Civil Procedure Security for Costs Corporate Insolvency Trustee Indemnity Costs Orders

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Parties

Equititrust Limited ACN 061 383 944

Plaintiff

RM Walsh Holdings Pty Ltd ACN 095 225 502 (Receiver and Manager Appointed)

First Defendant

J Delahunty Land Holdings Pty Ltd ACN 116 764 502 (Receivers and Managers Appointed)

Second Defendant

Byron Bay Land Development Pty Ltd ACN 106 666 648 (Receiver and Manager Appointed)

Third Defendant

Richard Martin Walsh

Fourth Defendant

Western Land Corporation Pty Ltd ACN 126 173 206 (Receivers and Managers Appointed)

Fifth Defendant

Perivale Capital Pty Ltd ACN 124 259 150 (Receivers and Managers Appointed)

Sixth Defendant

Procedural Posture

Civil / Interlocutory Application (security for Costs)

Legal Issues

  1. 1 Whether plaintiff trustee company must provide security for costs under Uniform Civil Procedure Rules 2005 r 42.21 or Corporations Act 2001 (Cth) s 1335, where right of indemnity against trust assets is claimed.
  2. 2 Whether anticipated right of indemnity from trust assets sufficiently secures possible costs orders for the defendants.

Ratio Decidendi

Equititrust’s right of indemnity against EIF’s assets is available and sufficient to satisfy a potential costs order; no current evidence justifies suspending that right as there is no established breach of trust. Consequently, security for costs is refused.

Court Disposition

Defendants' application for security for costs dismissed.

Orders

  • The defendants' notice of motion filed 15 December 2011 is dismissed.
  • The first to fourth defendants are to pay the plaintiff costs as agreed or assessed.