Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 [No 4] [2014] NSWSC 291

Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 [No 4] [2014] NSWSC 291

Because Ms Seco pursued security only against K Bricks, she had to prove on the balance of probabilities the costs likely to be incurred solely referable to K Bricks' claim. Her evidence addressed the costs of defending all plaintiffs' claims or the costs of defending K Bricks as a stand-alone plaintiff, and did not provide a rational evidentiary basis for identifying incremental costs peculiar to K Bricks' claim amid substantial overlap with the natural person plaintiffs' claims. The proposed discount from total costs was unsupported by evidence. The jurisdictional threshold was therefore not established and the Amended Notice of Motion was dismissed.

Jurisdiction
Australia
Judgment Date
20 March 2014
Procedural Posture
Interlocutory Application for Security for Costs / Amended Notice of Motion by the Third Defendant Seeking Security for Costs Against K Bricks
Outcome
Amended Notice of Motion dismissed.
Legal Topics
['security for Costs' 'corporate Plaintiff' 'overlapping Claims by Corporate and Natural Person Plaintiffs' 'proof of Likely Costs' 'misleading and Deceptive Conduct']
['civil Procedure' 'corporations' 'costs'] ['security for Costs' 'corporate Plaintiff' 'overlapping Claims by Corporate and Natural Person Plaintiffs' 'proof of Likely Costs' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Interlocutory Application for Security for Costs / Amended Notice of Motion by the Third Defendant Seeking Security for Costs Against K Bricks

Legal Issues

  1. 1 ["Whether the Court's jurisdiction to order security for costs was enlivened by reason to believe that K Bricks would be unable to pay the Third Defendant's costs if ordered to do so." "Whether the Third Defendant proved the amount of costs likely to be incurred solely referable to K Bricks' claim, as distinct from costs incurred in defending overlapping claims by the natural person plaintiffs." "Whether the Court could determine the relevant costs by an impressionistic discount from the Third Defendant's total costs of defending all plaintiffs' claims."]

Ratio Decidendi

Because Ms Seco pursued security only against K Bricks, she had to prove on the balance of probabilities the costs likely to be incurred solely referable to K Bricks' claim. Her evidence addressed the costs of defending all plaintiffs' claims or the costs of defending K Bricks as a stand-alone plaintiff, and did not provide a rational evidentiary basis for identifying incremental costs peculiar to K Bricks' claim amid substantial overlap with the natural person plaintiffs' claims. The proposed discount from total costs was unsupported by evidence. The jurisdictional threshold was therefore not established and the Amended Notice of Motion was dismissed.

Court Disposition

Amended Notice of Motion dismissed.

Orders

  • ["The Third Defendant's Amended Notice of Motion filed 23 July 2013 is dismissed." 'Subject to any further submissions, costs should follow the event.']