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[2026] NSWSC 1173
Supreme Court of NSW
2026-09-21
Campbell J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: TransAsia Private Capital Limited v Miller [2026] NSWSC 1173
Hearing dates: 21 September 2026
Date of orders: 21 September 2026
Decision date: 21 September 2026
Jurisdiction: Common Law
Before: Campbell J
Decision: Under r 41.3 of the Uniform Civil Procedure Rules 2005 (NSW), the sum of AUD $50,000, paid into court by the plaintiffs on or about 26 June 2026 and after the deduction of any fee payable to the registrar, be paid out of court to the plaintiffs, or in accordance with their written authority under r 41.11
Catchwords: CIIVL PROCEDURE — withdrawal of funds paid into Court as security for costs — no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 41.3
Category: Procedural rulings
Parties: TransAsia Private Capital Limited (Hong Kong SAR Registration No.1703088) in its capacity as manager, for and on behalf of Asian Trade Finance Fund 2, a sub-fund of TA Asian Multi-Finance Fund (First Plaintiff)
TA Private Capital Security Agent Limited (British Virgin Island
Registration No. 1973961) (Second Plaintiff)
Adrian Douglas Miller (Defendant)
Representation: Counsel:
B Lloyd (Plaintiffs)
Solicitors:
Finlaysons (Plaintiffs)
File Number(s): 2025/00354257
Publication restriction: Nil
HIS HONOUR: By a statement of claim, filed on 15 September 2026, the plaintiffs claimed in debt from the defendant, pursuant to a deed of guarantee entered into by him guaranteeing the amount of the indebtedness of a company in which the defendant was concerned under what is referred to in the pleadings as a "facility agreement". The borrower, and debtor company, is PacificStar Airline Management (HK) Limited. After service of the statement of claim, a notice of appearance was filed on behalf of the defendant, but no defence was ever filed. The defendant seems to have been continuously represented by solicitors until 22 July 2026, when a notice of removal of solicitor was filed in the registry over his own signature.
The position remained that no defence was filed, and on 11 August 2026 the plaintiffs obtained default judgment in the sum of USD $9,585,018.25. That figure included the sum of AUD $5,529 for scale costs in respect of the judgment.
During the pendency of the proceedings, the registrar made an order for security for costs in favour of the defendant in the sum of AUD $50,000. I am satisfied, from the affidavit of Lisa Anna Calabrese, the plaintiffs’ solicitor, sworn on 18 August 2026, that that money was duly paid into court. Ms Calabrese has annexed the Court's receipt as Exhibit LAC-1 to her affidavit.
Mr B Lloyd of counsel, who appears for the plaintiff, moves for a payment out in favour of the plaintiffs, now judgment creditors, under r 41.3 of the Uniform Civil Procedure Rules 2005 (NSW). It is evident, given the judgment in favour of the plaintiffs, that they are entitled to payment out of the money they paid in in the limited capacity as security. No other person has any entitlement to that money, and indeed, any contingent right in respect of it which may have vested in the defendant by virtue of the orders for security made by the Registrar, has merged in the default judgment. I am satisfied that the plaintiffs are entitled to the funds.
Mr Miller, the defendant, has not appeared today. His name was called, in accordance with convention, when the matter was called on for hearing before me, and there was no appearance. I am satisfied, from the affidavit of Lucy Netanya Page Bowler, affirmed on 18 September 2026, that the notice of motion and affidavit in support were duly served upon the defendant. From her affidavit, I am satisfied that Ms Bowler served the defendant on 7 September 2026 by forwarding the motion and supporting affidavit to the email address specified by him in the notice of removal of solicitor of 22 July 2026. I am also satisfied that, on that day, Ms Bowler received a "read receipt" from that address in response to her email.
Consequently, under r 41.3 of the Uniform Civil Procedure Rules 2005 (NSW), the sum of AUD $50,000, paid into court by the plaintiffs on or about 26 June 2026 and after the deduction of any fee payable to the registrar, be paid out of court to the plaintiffs, or in accordance with their written authority under r 41.11.
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TransAsia Private Capital Limited
Miller