In the matter of Felan’s Fisheries Pty Limited [2016] NSWSC 1351

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Felan's Fisheries Pty Limited [2016] NSWSC 1351 Hearing dates: 2 September 2016 Decision date: 23 September 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court orders that the parties bring in agreed orders to give effect to judgment within 14 days, including as to costs or, if there is no agreement between them, their respective draft short minutes of order and short submissions as to the differences between them. Catchwords: PROCEDURE — Costs — Security for costs — Application for security for costs – where plaintiff brought proceedings against a company and several of the company's directors – where company and directors sought security for costs from the plaintiff for both past and future costs of the proceedings – where plaintiff relied on shares it owned in another entity to contend that it could meet orders for costs if unsuccessful in substantive proceedings – where plaintiff contended that separate legal representation by the company and the directors was unnecessary – whether there is reason to believe that the plaintiff will be unable to pay costs of the proceedings if unsuccessful – whether impecuniosity of the plaintiff results from conduct of defendants and whether that matter is relevant given plaintiff did not contend an order for security for costs would stultify proceedings – whether the plaintiff's claim is essentially defensive in character – whether the Court should accept the quantum of costs sought by the applicants – whether it was necessary for the company and the directors to obtain separate legal representation in circumstances that the plaintiff alleged breach of director's duties against the directors. Legislation Cited: - Corporations Act 2001 (Cth), ss 181, 236, 237, 1324, 1335 - Uniform Civil Procedure Rules 2005 (NSW), r 42.21 Cases Cited: - ACN 105 921 962 Pty Ltd v Wiggett [2012] NSWSC 1526 - Ashington Capital Pty Ltd v Parissen Capital (Project X) Pty Ltd [2012] NSWSC 410 - Beach Petroleum NL v Johnson (1992) 7 ACSR 203 - Blue Oil Energy v Tan [2014] NSWCA 81 - BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 - Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 - Deangrove Pty Ltd v Buckby [2002] FCA 1544 - eInduct Systems Pty Ltd v 3D Safety System Services Pty Ltd [2015] NSWCA 284; (2015) 90 NSWLR 451 - Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 564 - Fimiston Investments Pty Ltd (in liq) v Pecker Maroo Pty Ltd [2011] QSC 356 - Ho v Fordyce t/as PMF Legal Trading (No 2) [2015] NSWSC 1748 - Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 - Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276 - KDL Building v Mount [2006] NSWSC 474 - KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76 - Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377 - Moroney v Reschke [2015] NSWSC 860 - Oswal v Cmr of Taxation [2015] FCA 1366 - Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344 - Polstead Pty Ltd (in liq) v Shah [2009] NSWSC 560 - Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd [2010] FCA 1222 - Putney Group Pty Ltd v Royal Rehabilitation Centre Sydney [2009] NSWSC 424 - Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 611 - Re Elsmore Resources Ltd [2014] NSWSC 1247 - Re Felan's Fisheries Pty Limited [2016] NSWSC 581 - Re Pioneer Energy Holdings Pty Ltd [2013] NSWSC 1366 - Re Travelodge Australia Ltd (1978) 21 ACTR 17 - Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) [2003] FCA 803 - Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 - Szanto v Bainton [2011] NSWSC 985 - Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 563 - Weily's Quarries v Devine Shipping Pty Ltd (1994) 14 ACSR 186 - Willey v Synan [1935] HCA 76; (1935) 54 CLR 175 - Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 Category: Procedural and other rulings Parties: Felan's Fisheries Pty Limited (Plaintiff) Sydney Fish Market Pty Limited (First Defendant) SFM Tenants and Merchants Pty Limited (Second Defendant) Bruce James Standen (Third Defendant) Grahame Richard Turk (Fourth Defendant) John Samuel Symonds (Fifth Defendant) William John Gallagher (Sixth Defendant) Sandra Margaret Hook (Seventh Defendant) Terry Con Poulos (Eighth Defendant) Harry Kouros (Ninth Defendant) Gregory George Imisides (Tenth Defendant) Nicholas Peter Manettas (Eleventh Defendant) Representation: Counsel: R P V Carey (Plaintiff) J C Hewitt (First Defendant) N Kidd SC (Third – Ninth Defendants)