Reliance Financial Services v Lemery Holdings [2006] NSWSC 709

Reliance Financial Services v Lemery Holdings [2006] NSWSC 709

Because the proceedings had made virtually no progress for a year and there was real doubt whether any alleged charge was presently fixed over the Liverpool property proceeds, the balance of convenience favoured varying the asset preservation order to the extent indicated, while preserving it for amounts claimed for proceedings other than the present proceedings and the House of Diamonds proceedings. The prior consolidated proceedings were for practical purposes over, so the indemnity costs ordered on 29 June 2005 should be assessed and payable forthwith. The costs of the interlocutory application were ordered to be the defendants' costs in the cause.

Jurisdiction
Australia
Judgment Date
11 July 2006
Procedural Posture
Equity Proceedings Concerning an Asset Preservation Order and Costs / Ex Tempore Judgment on Interlocutory Application for Variation of Asset Preservation Order and Costs Payable Forthwith
Outcome
Asset preservation order varied. Costs order in consolidated proceedings 4924/04 and 3923/04 to be payable forthwith. Costs of application for variation to be defendants' costs in the cause.
Legal Topics
['asset Preservation Order' 'balance of Convenience' 'fixed and Floating Charge' 'negative Covenant' 'interlocutory Costs' 'indemnity Costs Payable Forthwith']
['equity' 'civil Procedure' 'costs' 'security Interests'] ['asset Preservation Order' 'balance of Convenience' 'fixed and Floating Charge' 'negative Covenant' 'interlocutory Costs' 'indemnity Costs Payable Forthwith']

Case Brief

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Procedural Posture

Equity Proceedings Concerning an Asset Preservation Order and Costs / Ex Tempore Judgment on Interlocutory Application for Variation of Asset Preservation Order and Costs Payable Forthwith

Legal Issues

  1. 1 ["Whether the asset preservation order made on 30 June 2005 should be varied to release funds paid into court for Lemery Holdings Pty Limited's legal costs." 'Whether the alleged fixed and floating charge was presently fixed over the proceeds of the Liverpool property.' 'Whether delay in prosecuting the proceedings affected the balance of convenience for continuation of the asset preservation order.' 'Whether indemnity costs ordered on 29 June 2005 in consolidated proceedings 4924 of 2004 and 3923 of 2004 should be assessed and payable forthwith.' 'What costs order should be made for the interlocutory application.']

Ratio Decidendi

Because the proceedings had made virtually no progress for a year and there was real doubt whether any alleged charge was presently fixed over the Liverpool property proceeds, the balance of convenience favoured varying the asset preservation order to the extent indicated, while preserving it for amounts claimed for proceedings other than the present proceedings and the House of Diamonds proceedings. The prior consolidated proceedings were for practical purposes over, so the indemnity costs ordered on 29 June 2005 should be assessed and payable forthwith. The costs of the interlocutory application were ordered to be the defendants' costs in the cause.

Court Disposition

Asset preservation order varied. Costs order in consolidated proceedings 4924/04 and 3923/04 to be payable forthwith. Costs of application for variation to be defendants' costs in the cause.

Orders

  • ['Asset preservation order varied to the extent indicated in the judgment.' 'In consolidated proceedings 4924 of 2004 and 3923 of 2004, the indemnity costs ordered on 29 June 2005 may be assessed, and the amount as agreed or assessed is payable forthwith.' "The costs of today's application are the defendants' costs...