Allco Funds Management Ltd (Receivers and Managers Appointed) (in Liq) v Trust Company (RE Services) Ltd [2013] NSWSC 1450

Supreme Court New South Wales

Medium Neutral Citation: Allco Funds Management Ltd (Receivers and Managers Appointed) (in Liq) v Trust Company (RE Services) Ltd [2013] NSWSC 1450 Hearing dates: 20 September 2013; written submissions 25 & 26 September 2013 Decision date: 02 October 2013 Jurisdiction: Equity Division - Commercial List Before: Stevenson J Decision: Plaintiff to provide further security for costs Catchwords: PRACTICE AND PROCEDURE - civil - interlocutory application - security for costs - whether reason to believe plaintiff would not be able to meet an adverse costs order - discretion to order security - entitlement to set off of liability for costs by reason of s 553C(1) of the Corporations Act 2001 (Cth), s 21 of the Civil procedure Act 2005 or at general law - relevant considerations in exercising discretion - quantum

EQUITY - set off - s 553C(1) of the Corporations Act 2001 (Cth), s 21 of the Civil procedure Act 2005 or at general law - whether an answer to application for security for costs

CORPORATIONS - s 553C(1) of the Corporations Act 2001 (Cth) - entitlement to set off of liability for costs against amounts "due" - whether amounts "due" between the parties - whether "mutual dealings" exist Legislation Cited: Civil Procedure Act 2005 Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Ariss v Express Interiors Pty Ltd (in Liq) [1996] 2 VR 507 Ashington Capital Pty Ltd v Parissen Capital (Project X) Pty Ltd [2012] NSWSC 410 Hiley v People's Prudential Assurance Co Ltd (in Liq) (1938) 60 CLR 468 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 KDL Building Pty Ltd v Mount [2006] NSWSC 474 Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377 Narradine Pty Ltd v Mascot Steel and Tools Pty Ltd [2012] NSWSC 385 Process Engineering Pty Ltd v Derby Meat Processing Co Ltd [1977] WAR 145 Category: Interlocutory applications Parties: Allco Funds Management Limited (Receivers and Managers Appointed) (in Liquidation) (plaintiff / respondent) Trust Company (RE Services) Limited (in its capacity as responsible entity and trustee of the Australian Wholesale Property Fund (ARSN 113 020 643)) (defendant / applicant) Representation: Counsel: J C Hewitt (plaintiff / respondent) I R Pike SC with S Keizer (defendant / applicant) Solicitors: Corrs Chambers Westgarth (plaintiff / respondent) Macpherson & Kellet Lawyers (defendant / applicant) File Number(s): SC 2012/228908 Publication restriction: Nil