Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 [No 3] [2014] NSWSC 38

Supreme Court New South Wales

Medium Neutral Citation: Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 [No 3] [2014] NSWSC 38 Hearing dates: 6 February 2014 Decision date: 06 February 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Notice of Motion dismissed Catchwords: COSTS - Security for costs - Summary dismissal of motion where applicant became unrepresented Category: Procedural and other rulings Parties: Ken Tugrul, Kellie Tugrul, Daniel Tugrul, Nassrin Tugrul and K Bricks Pty Limited ACN 097 871 148 (Plaintiffs) Tarrants Financial Consultants Pty Limited ACN 086 674 179 (First Defendant) Mervyn Ross Tarrant (Second Defendant) Stefanie Seco (Third Defendant) Dual Australia Limited as agent for Lumley General Insurance Limited ABN 24 000 035 279 and Dual Australia Limited as agent for Wesfarmers General Insurance Limited ABN 24 000 035 279 (Fourth Defendants) Representation: Counsel: D.R. Campbell SC and A.C. Harding (Plaintiffs) R. Tarrant (in person) (Second Defendant) A.S. Martin SC (Third Defendant) Solicitors: RMB Lawyers (Plaintiffs) Christopher Nicholls & Associates (Third Defendant) File Number(s): 2009/291166 Publication restriction: No

ex tempore Judgment 1HIS HONOUR: Today is the fifth day of the hearing of an application for security for costs by the Second and Third Defendants in these proceedings against the Fifth Plaintiff. The proceedings were adjourned part heard on the last day of term last year. 2The primary burden of prosecuting the application has been assumed by the Third Defendant. However, the Second Defendant also filed a notice of motion seeking security for costs and, up until now, has been represented by counsel and solicitors during the course of the hearing. Without diminishing in any way the role the Second Defendant and his legal representatives have thus far played, other than adducing evidence peculiar to the circumstances of the Second Defendant (primarily in relation to the legal costs which the Second Defendant expected to incur in these proceedings in the future), the Second Defendant has been content to adopt the evidence of the Third Defendant and to rely upon the submissions that otherwise have been put on behalf of the Third Defendant. 3On 8 January 2014 the Second Defendant's solicitor filed in the Registry a Notice of Intention to File a Notice of Ceasing to Act. In accordance with the usual form, that informed the Second Defendant that within 28 days from the date of service of the notice, his solicitor would file and serve a Notice of Ceasing to Act. 4When the proceedings resumed before me this morning, the Second Defendant appeared in person. He informed me that he was in ongoing discussions with potential legal representatives to reach an arrangement whereby he would continue to be legally represented for the balance of these proceedings. However, he has not formally tendered any evidence which enables me to form any view as to the likelihood of him being able to retain legal representation in the future and, perhaps more importantly for the purposes of an application of this kind, what the likely terms and conditions of any such legal representation might be. 5The Fifth Plaintiff has moved from the bar table for summary dismissal of the Second Defendant's motion. The basis for that application is that there is now no evidence before the Court that the Second Defendant will in fact incur legal costs in the future. There is considerable force in that submission. 6On the other hand, looking at the matter from a practical point of view, I cannot completely discount the possibility that the Second Defendant will be able to obtain legal representation on terms acceptable to him. The difficulty is that I have nothing before me which would enable me to determine whether that is something that will occur in days, weeks or months. That consideration underlies a further submission which has been made on behalf of the Fifth Plaintiff, namely that it would be unjust to the Fifth Plaintiff simply to allow the Second Defendant's motion to, as it were, remain hanging over the Fifth Plaintiff's head against the possibility that the Second Defendant is able to obtain legal representation. 7Balancing those considerations, practical justice will be achieved in the circumstances which have now arisen by acceding to the Fifth Plaintiff's application for the Second Defendant's motion to be dismissed, but doing so in a way which recognises the possibility that the Second Defendant may be able to obtain legal representation within a reasonably short period of time. I will therefore stay the order dismissing the Second Defendant's motion for a few weeks and allow the Second Defendant liberty to restore during that period to make such application as he may be advised, including to vacate the order, on the basis that legal representation has been obtained and the application for security for costs will continue to be prosecuted. If that occurs, then it may be that fresh and different evidence will need to be filed by the Second Defendant in relation to the costs likely to be incurred by him, depending upon the terms of any arrangements that he is able to make with his new legal representatives. 8The orders of the Court are: (1)Dismiss the Second Defendant's notice of motion filed 7 November 2013. (2)Stay Order 1 up to and including 5.00 pm on Friday, 7 March 2014. (3)Reserve the costs of the Second Defendant's motion. (4)Grant liberty to the Second Defendant to make such application as he may be advised in relation to Order 1 at any time up to and including 7 March 2014 upon three days notice by email to my associate and to the legal representatives of the other parties.