Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 249

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 249

Security for costs previously ordered may be varied to allow provision by written guarantee where all interested parties consent, and such guarantee must contain an appropriate non-revocation clause. Joinder of a company (in its capacity as former trustee) as defendant is necessary even without claim for relief, where interests in the trust are involved. The court may appoint a representative of trust beneficiaries under Supreme Court Rules to ensure all interests are bound, but such appointment may be delayed to permit further argument.

Parties
Plaintiff: Lamru Pty Ltd; First Defendant: Kation Pty Ltd; Second Defendant: Peter Lawrence Lewis; Third Defendant: Mark Lewis; Fourth Defendant (joined): Nortex Pty Ltd (In Liq); Liquidator: Brian Raymond Silvia
Jurisdiction
Australia
Judgment Date
27 March 2002
Procedural Posture
Equity Proceedings / Interlocutory Motions and Directions
Outcome
Orders made varying security for costs, granting leave to join Nortex Pty Ltd (in liq) as fourth defendant, reserving on appointment of trust representative, refusing to vacate fixture, and making ancillary procedural and costs orders.
Legal Topics
Security for Costs, Joinder of Parties, Trust Representation, Practice Directions, Variation of Orders
Civil Procedure Equity Security for Costs Joinder of Parties Trust Representation Practice Directions Variation of Orders

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Parties

Lamru Pty Ltd

Plaintiff

Kation Pty Ltd

First Defendant

Peter Lawrence Lewis

Second Defendant

Mark Lewis

Third Defendant

Nortex Pty Ltd (In Liq)

Fourth Defendant (joined)

Brian Raymond Silvia

Liquidator

Procedural Posture

Equity Proceedings / Interlocutory Motions and Directions

Legal Issues

  1. 1 Whether security for costs should be provided by a written guarantee or undertaking
  2. 2 Whether Nortex Pty Ltd (in liquidation) should be joined as a party
  3. 3 Whether a representative of the trust should be appointed under Supreme Court Rules 1970 Part 8 r 14

Ratio Decidendi

Security for costs previously ordered may be varied to allow provision by written guarantee where all interested parties consent, and such guarantee must contain an appropriate non-revocation clause. Joinder of a company (in its capacity as former trustee) as defendant is necessary even without claim for relief, where interests in the trust are involved. The court may appoint a representative of trust beneficiaries under Supreme Court Rules to ensure all interests are bound, but such appointment may be delayed to permit further argument.

Court Disposition

Orders made varying security for costs, granting leave to join Nortex Pty Ltd (in liq) as fourth defendant, reserving on appointment of trust representative, refusing to vacate fixture, and making ancillary procedural and costs orders.

Orders

  • Security for costs to be provided by written guarantee for $120,000 (Lamru to Kation, P L Lewis) and $50,000 (Lamru to Mark Lewis) by specified date.
  • Nortex Pty Ltd (in Liq) joined as fourth defendant in proceedings 1750/02, pursuant to s 471B Corporations Act 2001 (Cth).