UBS AG v Tyne [2018] HCA 45

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

UBS AG APPELLANT

AND

SCOTT FRANCIS TYNE AS TRUSTEE OF THE ARGOT TRUST RESPONDENT

UBS AG v Tyne [2018] HCA 45 17 October 2018 B54/2017

ORDER

1. Appeal allowed with costs.

2. Set aside the orders made by the Full Court of the Federal Court of Australia on 20 January 2017 and, in their place, order that:

(a) the appeal to the Full Court is dismissed; and

(b) the appellants in the Full Court are to pay the respondent's costs of the appeal to that Court.

On appeal from the Federal Court of Australia

Representation

J Stoljar SC with L T Livingston for the appellant (instructed by King & Wood Mallesons)

G O'L Reynolds SC with D P Hume for the respondent (instructed by Russells)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

UBS AG v Tyne

Practice and procedure ­–­ Permanent stay of proceedings –­ Abuse of process –­ Where respondent (in personal capacity) was controlling mind of former trustee and related company –­ Where respondent (in personal capacity), former trustee and related company commenced proceedings in Supreme Court of New South Wales –­ Where respondent (in personal capacity) and former trustee discontinued as parties in Supreme Court proceedings –­ Where Supreme Court proceedings permanently stayed –­ Where respondent (as trustee) pursued substantially same claims in Federal Court of Australia –­ Where primary judge permanently stayed proceedings for abuse of process – Whether on appeal Full Court erred in finding no abuse of process and setting aside permanent stay –­ Whether Full Court failed to consider overarching purpose of conduct of civil litigation.

Words and phrases –­ "abuse of process", "administration of justice", "conduct of civil litigation", "discontinue", "final determination", "just resolution", "overarching purpose of the conduct of civil litigation", "permanent stay", "related parties", "unconditional discontinuance", "unjustifiably oppressive".