APFC No.1 Corporation v Insurance Australia Limited [2024] NSWSC 534

Supreme Court New South Wales

Medium Neutral Citation: APFC No.1 Corporation v Insurance Australia Limited [2024] NSWSC 534 Hearing dates: 12 April 2024 Date of orders: 8 May 2024 Decision date: 08 May 2024 Jurisdiction: Equity - Commercial List Before: Nixon J Decision: See [131] Catchwords: COSTS – security for costs – where foreign plaintiffs with no assets have entered an agreement with a litigation funder – where dispute as to form and quantum of security – where plaintiffs proposed that adequate security was provided by an after-the-event insurance policy underwritten by a related entity of the funder – where second defendant sought security in form of cash deposit or bank guarantee – whether after-the-event insurance policy is adequate to achieve the objective of security for costs – whether security should be ordered in quantum sought by second defendant Legislation Cited: Contracts (Rights of Third Parties) Act 1999 (UK), s 1 Corporations Act 2001 (Cth), s 1335 Insurance Contracts Act 1984 (Cth), s 48 Uniform Civil Procedure Rules (NSW) r 42.21 Cases Cited: Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198 AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd [2010] NSWSC 985 Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187; [1995] FCA 1778 Blue Oil Energy Pty Ltd v Tan [2014] NSWCA 81 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171; [1952] HCA 49 Bryan Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; [1987] FCA 102 Colt Industries Inc v Sarlie (No 2) [1966] 1 WLR 1287 Denso Manufacturing UK Ltd v Great Lakes Reinsurance (UK) plc [2017] Lloyds Rep IR 240 DIF III Global Co-Investment Fund LP v BBLP LLC [2016] VSC 401 Energy Drilling Inc v Petroz NL [1989] FCA 146 Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664 Idoport Pty Ltd v NAB Ltd [2001] NSWSC 744 In the matter of Tiaro Coal Ltd (in liq) [2018] NSWSC 746 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Lake v Simmons [1927] AC 487 MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 Malamit Pty Ltd v WFI Insurance Ltd [2017] NSWCA 162 MHG Plastic Industries Pty Ltd v Quality Assurance Services Pty Ltd [2002] FCA 821 Morris v Hanley [2001] NSWCA 374 Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd [2017] FCA 699 Plaza Print Pty Ltd v South British Insurance Co Ltd (1984) 68 FLR 340 Saxon Woods Investments Ltd v Costa and others [2023] EWHC 850 (Ch) Sunday Times Newspaper Company Ltd v Mcintosh (1933) 33 SR (NSW) 371 Vertical Australia Pty Ltd v Air Company Vertical T-LLC [2012] NSWSC 719 Wollongong City Council v FPM Constructions Pty Ltd [2004] NSWSC 523 Wollongong Coal Pty Ltd v Gujarat NRE Properties Pty Ltd [2019] NSWSC 187 XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215 Category: Procedural rulings Parties: APFC No.1 Corporation (First Plaintiff) APFC No.2 Corporation (Second Plaintiff) SLFC No.1 Corporation (Third Plaintiff) LFC No.1 Corporation (Fourth Plaintiff) LFC No.2 Corporation (Fifth Plaintiff) LFC No.3 Corporation (Sixth Plaintiff) THC No.2 Corporation (Seventh Plaintiff) Tokio Marine & Nichido Fire Insurance Co Ltd (Second Defendant) Representation: Counsel: M Jones SC with A Smith (Plaintiffs) E Collins SC with P Holmes (Second Defendant)