Trust Co. Fiduciary Services Ltd v Hassarati (No. 4) [2012] NSWSC 1438

Trust Co. Fiduciary Services Ltd v Hassarati (No. 4) [2012] NSWSC 1438

The Applicants failed to demonstrate any relevant misapprehension of fact or law by the Court not attributable to their own default; their attempt amounted to a re-argument of issues already determined and/or new arguments that should have been advanced earlier. The requirements to vary the judgment under r 36.16 were not satisfied.

Parties
First Plaintiff: Trust Company Fiduciary Services Ltd (formerly known as Permanent Trustee Company Ltd); Second Plaintiff: Australia and New Zealand Banking Group Ltd; First Defendant: Alvera Hassarati; Second Defendant: Lily Hassarati; Third Defendant: Royal Guardian Mortgage Corporation Pty Ltd; Fourth Defendant: Anthony Tomazin; Fifth Defendant: CKM (Mortgages) Ltd; Cross Defendant: John Maait; Cross Defendant: Joseph Capogreco; Cross Defendant: Joseph Kotowicz; Cross Defendant: Simon Konstantinidis; Cross Defendant: National Australia Bank Ltd; Applicants: George and Josephine Hassarati
Jurisdiction
Australia
Judgment Date
03 December 2012
Procedural Posture
Procedural Motion / Application to Vary/vacate Judgment Under R 36.16 UCPR
Outcome
Motion dismissed
Legal Topics
Judgments and Orders, Applications to Vary Judgment, Interlocutory Orders, Misapprehension of Fact or Law
Civil Procedure Judgments and Orders Applications to Vary Judgment Interlocutory Orders Misapprehension of Fact or Law

Case Brief

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Parties

Trust Company Fiduciary Services Ltd (formerly known as Permanent Trustee Company Ltd)

First Plaintiff

Australia and New Zealand Banking Group Ltd

Second Plaintiff

Alvera Hassarati

First Defendant

Lily Hassarati

Second Defendant

Royal Guardian Mortgage Corporation Pty Ltd

Third Defendant

Anthony Tomazin

Fourth Defendant

CKM (Mortgages) Ltd

Fifth Defendant

John Maait

Cross Defendant

Joseph Capogreco

Cross Defendant

Joseph Kotowicz

Cross Defendant

Simon Konstantinidis

Cross Defendant

National Australia Bank Ltd

Cross Defendant

George and Josephine Hassarati

Applicants

Procedural Posture

Procedural Motion / Application to Vary/vacate Judgment Under R 36.16 UCPR

Legal Issues

  1. 1 Whether the Applicants' Motion to vary or reverse judgment under r 36.16 UCPR should be granted
  2. 2 Whether there was a misapprehension by the Court of fact or law warranting variation

Ratio Decidendi

The Applicants failed to demonstrate any relevant misapprehension of fact or law by the Court not attributable to their own default; their attempt amounted to a re-argument of issues already determined and/or new arguments that should have been advanced earlier. The requirements to vary the judgment under r 36.16 were not satisfied.

Court Disposition

Motion dismissed

Orders

  • The Applicants' Motion of 7 November 2012 is dismissed.
  • The Applicants are to pay the Plaintiffs' costs of the Motion.