Smith v Australian Executor Trustees Limited (No 5) [2019] NSWSC 751

Smith v Australian Executor Trustees Limited (No 5) [2019] NSWSC 751

Clause 3.4 of the Settlement Deed clearly required the Funder Payment to be paid to JK Portfolio, and Litman Holdings failed to establish any subsequent agreement, representation or acceptance by JK Portfolio varying that position. The without prejudice correspondence was privileged and did not fall within s 131(2)(f). Litman Holdings also failed to establish a proper basis, akin to a freezing order, for retaining money belonging to JK Portfolio to secure a potential judgment against JK Litigation. The money paid into Court was therefore to be paid to JK Portfolio's solicitors, and Litman Holdings' motion was dismissed with costs.

Jurisdiction
Australia
Judgment Date
20 June 2019
Procedural Posture
Procedural Ruling on Money Paid Into Court / Determination of Competing Notices of Motion Filed on 5 March 2019 and 6 March 2019
Outcome
JustKapital Portfolio Pty Limited's notice of motion filed on 5 March 2019 was granted; ACN 133 560 086 Pty Limited's notice of motion filed on 6 March 2019 was dismissed with costs.
Legal Topics
['money Paid Into Court' 'payment Out of Court' 'settlement Deed Interpretation' 'without Prejudice Privilege' 'evidence Act 1995 (nsw) S 131' 'freezing Orders']
['civil Procedure' 'evidence' 'equity'] ['money Paid Into Court' 'payment Out of Court' 'settlement Deed Interpretation' 'without Prejudice Privilege' 'evidence Act 1995 (nsw) S 131' 'freezing Orders']

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Procedural Posture

Procedural Ruling on Money Paid Into Court / Determination of Competing Notices of Motion Filed on 5 March 2019 and 6 March 2019

Legal Issues

  1. 1 ['Whether the amount paid into Court should be paid to the solicitors acting for JustKapital Portfolio Pty Limited or retained in Court pending determination of the Commercial List Proceedings.' 'Whether Litman Holdings, JK Litigation and JK Portfolio agreed that the money held by Meridian and later paid into Court would be held in trust pending resolution of their dispute under the SSPA.' 'Whether correspondence between 19 September 2018 and 3 October 2018 was inadmissible under without prejudice privilege or fell within s 131(2)(f) of the Evidence Act 1995 (NSW).' "Whether it was in the interests of justice to retain the money in Court in light of Litman Holdings' prospects in the Commercial List Proceedings and concerns about JK Litigation's ability to meet any judgment debt."]

Ratio Decidendi

Clause 3.4 of the Settlement Deed clearly required the Funder Payment to be paid to JK Portfolio, and Litman Holdings failed to establish any subsequent agreement, representation or acceptance by JK Portfolio varying that position. The without prejudice correspondence was privileged and did not fall within s 131(2)(f). Litman Holdings also failed to establish a proper basis, akin to a freezing order, for retaining money belonging to JK Portfolio to secure a potential judgment against JK Litigation. The money paid into Court was therefore to be paid to JK Portfolio's solicitors, and Litman Holdings' motion was dismissed with costs.

Court Disposition

JustKapital Portfolio Pty Limited's notice of motion filed on 5 March 2019 was granted; ACN 133 560 086 Pty Limited's notice of motion filed on 6 March 2019 was dismissed with costs.

Orders

  • ['The amount paid into Court on 21 February 2019 of $2,188,554.73, together with any interest thereon, be paid to the trust account of Roberts and Partners Lawyers BSB xxxx Account No xxxx.' "ACN 133 560 086 Pty Limited pay JustKapital Portfolio Pty Limited's costs of JustKapital Portfolio Pty Limited's notice of...