Traderight Pty Ltd v Bank of Queensland Ltd; Bank of Queensland Ltd v Traderight Pty Ltd; Jude Financial Services Pty Ltd v Bank of Queensland Ltd; Rossmick No 1 Pty Ltd v Bank of Queensland Ltd; Bank of Queensland Ltd v SME Business Assist Pty Ltd; Geraghty & Palmer Pty Ltd v Bank of Queensland Ltd; Best Deal Pty Ltd v Bank of Queensland Ltd; Southpole Financial Services Pty Ltd v Bank of Queensland Ltd; LJH Group Pty Ltd v Bank of Queensland Ltd; Shamarbre Pty Ltd v Bank of Queensland Ltd; Leokate Pty Ltd v Bank of Queensland [2010] NSWSC 1502

Traderight Pty Ltd v Bank of Queensland Ltd; Bank of Queensland Ltd v Traderight Pty Ltd; Jude Financial Services Pty Ltd v Bank of Queensland Ltd; Rossmick No 1 Pty Ltd v Bank of Queensland Ltd; Bank of Queensland Ltd v SME Business Assist Pty Ltd; Geraghty & Palmer Pty Ltd v Bank of Queensland Ltd; Best Deal Pty Ltd v Bank of Queensland Ltd; Southpole Financial Services Pty Ltd v Bank of Queensland Ltd; LJH Group Pty Ltd v Bank of Queensland Ltd; Shamarbre Pty Ltd v Bank of Queensland Ltd; Leokate Pty Ltd v Bank of Queensland [2010] NSWSC 1502

Costs should follow the event and be paid forthwith by the BOQ parties in relation to the cross-vesting application, as the OMB parties substantially succeeded. Security for costs is not warranted beyond the form of the litigation funder's undertaking filed with the court, limited to future costs from the date of the funding agreement. The bringing of parallel proceedings by individual guarantors in NSW constitutes a prima facie abuse of process in light of pending Qld litigation, and cross-vesting to Qld is conditionally appropriate, to be stayed pending a further case management decision as to whether matters can reasonably be heard together in NSW.

Jurisdiction
Australia
Judgment Date
22 December 2010
Procedural Posture
Multiple Proceedings Including Applications for Costs, Security for Costs, Strike Out/stay, and Cross Vesting/consolidation in Commercial Franchise Litigation / Interlocutory Applications Determination, Pre Trial
Outcome
BOQ parties ordered to pay OMB parties' costs on a party/party basis, payable forthwith, in relation to specified cross-vesting application. Application for security for costs dismissed subject to IMF undertaking. Conditional cross-vesting to Qld ordered and stayed pending further case management. Orders regarding...
Legal Topics
['costs' 'security for Costs' 'cross Vesting' 'abuse of Process' 'consolidation of Proceedings' 'jurisdiction' 'misleading and Deceptive Conduct' 'franchise Disputes']
['civil Procedure' 'contracts' 'equity'] ['costs' 'security for Costs' 'cross Vesting' 'abuse of Process' 'consolidation of Proceedings' 'jurisdiction' 'misleading and Deceptive Conduct' 'franchise Disputes']

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Procedural Posture

Multiple Proceedings Including Applications for Costs, Security for Costs, Strike Out/stay, and Cross Vesting/consolidation in Commercial Franchise Litigation / Interlocutory Applications Determination, Pre Trial

Legal Issues

  1. 1 ['Whether party/party costs should be awarded following cross-vesting applications' 'Whether security for costs should be ordered given litigation funding' 'Whether strike-out or stay should be ordered for duplicative proceedings (abuse of process)' 'Whether certain proceedings should be cross-vested between NSW and Qld courts' 'Whether proceedings should be consolidated or heard together for efficiency']

Ratio Decidendi

Costs should follow the event and be paid forthwith by the BOQ parties in relation to the cross-vesting application, as the OMB parties substantially succeeded. Security for costs is not warranted beyond the form of the litigation funder's undertaking filed with the court, limited to future costs from the date of the funding agreement. The bringing of parallel proceedings by individual guarantors in NSW constitutes a prima facie abuse of process in light of pending Qld litigation, and cross-vesting to Qld is conditionally appropriate, to be stayed pending a further case management decision as to whether matters can reasonably be heard together in NSW.

Court Disposition

BOQ parties ordered to pay OMB parties' costs on a party/party basis, payable forthwith, in relation to specified cross-vesting application. Application for security for costs dismissed subject to IMF undertaking. Conditional cross-vesting to Qld ordered and stayed pending further case management. Orders regarding...

Orders

  • ["BOQ parties to pay OMB parties' costs of the cross-vesting application before Hamilton J, assessed or agreed and payable forthwith on a party/party basis." 'Subject to provision of undertaking from IMF, security for costs application dismissed; liberty to apply restored if undertaking not filed by deadline.'...