Labocus Precious Metals Pty Ltd v Thomas [2008] FCA 1910

Labocus Precious Metals Pty Ltd v Thomas [2008] FCA 1910

The applicants' repeated failure to comply with orders requiring particulars of the basis for withholding the $80,000, their failure to provide evidence explaining default, and their unsupported request for an adjournment demonstrated that there was no bona fide dispute justifying continued retention of the money in Court; alternatively, they were in default for the purposes of O 35A r 3(1). The money and interest were therefore to be paid out to the first respondent, the applicants' motion dismissed, and indemnity costs ordered.

Jurisdiction
Australia
Judgment Date
02 December 2008
Procedural Posture
Notice of Motion Concerning Money Paid Into Court After Settlement of a Purchase of Real Property / Judgment on Re Listed Application Following Applicants' Non Compliance With Directions
Outcome
The applicants' Notice of Motion filed on 15 October 2008 was dismissed; prior orders were vacated; the $80,000 held in Court with interest was ordered to be paid to the first respondent; and the applicants were ordered to pay the first respondent's costs on an indemnity basis for the period from 15 October 2008 to...
Legal Topics
['default in Compliance With Court Orders' 'payment Out of Money Held in Court' 'indemnity Costs' 'vacant Possession Under Contract for Sale']
['civil Procedure' 'contract' 'costs'] ['default in Compliance With Court Orders' 'payment Out of Money Held in Court' 'indemnity Costs' 'vacant Possession Under Contract for Sale']

Case Brief

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Procedural Posture

Notice of Motion Concerning Money Paid Into Court After Settlement of a Purchase of Real Property / Judgment on Re Listed Application Following Applicants' Non Compliance With Directions

Legal Issues

  1. 1 ['Whether the applicants had a bona fide basis for withholding $80,000 from the amount payable on settlement of their purchase of land from the first respondent.' "Whether the applicants' repeated non-compliance with Court orders justified vacating prior directions, dismissing their Notice of Motion, and paying the money out of Court to the first respondent." 'Whether the first respondent should receive indemnity costs for the relevant period.']

Ratio Decidendi

The applicants' repeated failure to comply with orders requiring particulars of the basis for withholding the $80,000, their failure to provide evidence explaining default, and their unsupported request for an adjournment demonstrated that there was no bona fide dispute justifying continued retention of the money in Court; alternatively, they were in default for the purposes of O 35A r 3(1). The money and interest were therefore to be paid out to the first respondent, the applicants' motion dismissed, and indemnity costs ordered.

Court Disposition

The applicants' Notice of Motion filed on 15 October 2008 was dismissed; prior orders were vacated; the $80,000 held in Court with interest was ordered to be paid to the first respondent; and the applicants were ordered to pay the first respondent's costs on an indemnity basis for the period from 15 October 2008 to...

Orders

  • ['Orders 1-10 inclusive and Order 12 made on 6 November 2008 be vacated.' 'The money held in Court and lodged by the first respondent on 5 September 2008 in the sum of $80,000.00, together with any interest thereon, be paid out of Court forthwith to the first respondent.' 'Order that the Notice of Motion filed by...