Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2009] NSWSC 182

Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2009] NSWSC 182

The Court adhered to a 42 day stay to allow time for notification of any appeal and application to a Judge of Appeal, refused any stay of order 16 for the reasons previously given, included only the $360,000 Kingsway exception in order 6(a)(ii) because Mr Chen's proposed repayment exception risked double credit and did not make sense, and retained the misappropriation wording because Mr Chen was not authorised by a general power of attorney, or as a fiduciary, to take and use the moneys for his own purposes.

Jurisdiction
Australia
Judgment Date
18 March 2009
Procedural Posture
Equity Proceeding / Further Submissions About the Form of Orders; Orders Finally Settled
Outcome
Orders finally settled.
Legal Topics
['judgments and Orders' 'stay of Orders' 'form of Declarations' 'misappropriation' 'power of Attorney' 'payment Out of Security']
['equity' 'civil Procedure'] ['judgments and Orders' 'stay of Orders' 'form of Declarations' 'misappropriation' 'power of Attorney' 'payment Out of Security']

Case Brief

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Procedural Posture

Equity Proceeding / Further Submissions About the Form of Orders; Orders Finally Settled

Legal Issues

  1. 1 ['Whether the stay should be for 28 days or 42 days.' 'Whether there should be at least a 72 hour stay of order 16 concerning the payment out of security.' 'Whether order 6(a)(ii) should include an exception for the $360,000 paid to Kingsway on 15 August 2006 or an exception for money repaid in accordance with orders 12 and 13.' 'Whether words characterising the abstraction of money from bank accounts as misappropriations should be omitted from the relevant declarations.']

Ratio Decidendi

The Court adhered to a 42 day stay to allow time for notification of any appeal and application to a Judge of Appeal, refused any stay of order 16 for the reasons previously given, included only the $360,000 Kingsway exception in order 6(a)(ii) because Mr Chen's proposed repayment exception risked double credit and did not make sense, and retained the misappropriation wording because Mr Chen was not authorised by a general power of attorney, or as a fiduciary, to take and use the moneys for his own purposes.

Court Disposition

Orders finally settled.

Orders

  • ['The stay was fixed at 42 days.' 'No stay was granted in relation to order 16 concerning the payment out of security.' 'Order 6(a)(ii) was to include an exception for the $360,000 paid to Kingsway on 15 August 2006.' "Mr Chen's proposed exception for money repaid in accordance with orders 12 and 13 was not included...