Sykes v Intermediate Capital Asia Pacific 2008 GP Limited [2018] FCA 1848

Sykes v Intermediate Capital Asia Pacific 2008 GP Limited [2018] FCA 1848

Security for costs should not be ordered against the applicants, who are private individuals bringing shareholder claims with arguable merits where the respondents have not shown sufficient additional circumstances to displace the general policy against such orders, and where making such orders would effectively prevent the applicants from proceeding.

Parties
Applicant: Richard Sykes; Applicant: Nicholas Woodward; Applicant: Kym Malcolm Dunn; First Respondent: Intermediate Capital Asia Pacific 2008 GP Limited; Second Respondent: Intermediate Capital Asia Pacific Fund 2008 LP; Third Respondent: Intermediate Capital Asia Pacific Limited; Fourth Respondent: Intermediate Capital Group PLC; Fifth Respondent: AET Structured Finance Services Pty Limited; Sixth Respondent: Intermediate Capital Australia Pty Limited; Seventh Respondent: Hartland Investments Pte Limited; Eighth Respondent: Ryan Shelswell; Ninth Respondent: Nicholas Schwartz; Tenth Respondent: Jonathan Coad; Eleventh Respondent: Lmpact Pty Ltd as Trustee for the Lmpac Family Trust
Jurisdiction
Australia
Judgment Date
27 November 2018
Procedural Posture
Interlocutory Application for Security for Costs / Post Hearing of Interlocutory Applications
Outcome
Interlocutory applications for security for costs refused
Legal Topics
Security for Costs Against Private Individuals, Federal Court Procedure
Civil Procedure Costs Security for Costs Against Private Individuals Federal Court Procedure

Case Brief

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Parties

Richard Sykes

Applicant

Nicholas Woodward

Applicant

Kym Malcolm Dunn

Applicant

Intermediate Capital Asia Pacific 2008 GP Limited

First Respondent

Intermediate Capital Asia Pacific Fund 2008 LP

Second Respondent

Intermediate Capital Asia Pacific Limited

Third Respondent

Intermediate Capital Group PLC

Fourth Respondent

AET Structured Finance Services Pty Limited

Fifth Respondent

Intermediate Capital Australia Pty Limited

Sixth Respondent

Hartland Investments Pte Limited

Seventh Respondent

Ryan Shelswell

Eighth Respondent

Nicholas Schwartz

Ninth Respondent

Jonathan Coad

Tenth Respondent

Lmpact Pty Ltd as Trustee for the Lmpac Family Trust

Eleventh Respondent

Procedural Posture

Interlocutory Application for Security for Costs / Post Hearing of Interlocutory Applications

Legal Issues

  1. 1 Whether security for costs should be ordered against private individuals under s 56(1) of the Federal Court of Australia Act 1976 (Cth) and r 19.01 of the Federal Court Rules 2011 (Cth)
  2. 2 Whether applicants will be unable to pay respondents’ costs if so ordered
  3. 3 Whether injustice or other relevant factors warrant security for costs

Ratio Decidendi

Security for costs should not be ordered against the applicants, who are private individuals bringing shareholder claims with arguable merits where the respondents have not shown sufficient additional circumstances to displace the general policy against such orders, and where making such orders would effectively prevent the applicants from proceeding.

Court Disposition

Interlocutory applications for security for costs refused

Orders

  • The interlocutory application issued by the first, second, third, fourth, sixth, seventh and eighth respondents seeking an order that the applicants provide security for costs be refused.
  • The interlocutory application issued by the fifth respondent seeking an order that the applicants provide security for costs be refused.