Kama & Anor v Wong & Anor (No 2) [2005] NSWSC 428

Kama & Anor v Wong & Anor (No 2) [2005] NSWSC 428

The Plaintiffs' renewed application was not justified because the newly framed claims in partnership, fiduciary duty and trust did not add any substantive basis for an equitable interest in the proceeds of sale, and the additional evidence did not show a risk that the Defendants were dissipating assets to defeat any judgment. The second application should therefore not be entertained and, in any event, would have been dismissed; because it ought not to have been brought, indemnity costs were warranted.

Jurisdiction
Australia
Judgment Date
21 April 2005
Procedural Posture
Interlocutory Injunction and Asset Preservation Order Application / Second Interlocutory Application for Relief Previously Refused
Outcome
Interlocutory injunction refused with indemnity costs.
Legal Topics
['interlocutory Injunction' 'repeated Applications' 'asset Preservation Order' 'freezing Order' 'caveatable Interest' 'proceeds of Sale' 'partnership' 'trust' 'indemnity Costs']
['equity' 'civil Procedure' 'property' 'contract'] ['interlocutory Injunction' 'repeated Applications' 'asset Preservation Order' 'freezing Order' 'caveatable Interest' 'proceeds of Sale' 'partnership' 'trust' 'indemnity Costs']

Case Brief

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Procedural Posture

Interlocutory Injunction and Asset Preservation Order Application / Second Interlocutory Application for Relief Previously Refused

Legal Issues

  1. 1 ['Whether the Court should entertain a second interlocutory application seeking essentially the same relief previously refused.' "Whether newly formulated causes of action based on partnership, fiduciary duty or trust gave the Plaintiffs an arguable equitable interest in the proceeds of sale of the Defendants' property." 'Whether new evidence justified an asset preservation order or freezing order on the basis that the Defendants were dissipating assets to defeat judgment.' 'Whether the Defendants should receive indemnity costs and have costs assessed forthwith.']

Ratio Decidendi

The Plaintiffs' renewed application was not justified because the newly framed claims in partnership, fiduciary duty and trust did not add any substantive basis for an equitable interest in the proceeds of sale, and the additional evidence did not show a risk that the Defendants were dissipating assets to defeat any judgment. The second application should therefore not be entertained and, in any event, would have been dismissed; because it ought not to have been brought, indemnity costs were warranted.

Court Disposition

Interlocutory injunction refused with indemnity costs.

Orders

  • ["The Plaintiffs' second application for relief was refused." 'If the application had been entertained, it would have been dismissed.' 'The Defendants were awarded indemnity costs in respect of the second application.' 'The costs of the second application are to be assessed forthwith.']