Kenny v Ebling Pty Ltd [2001] NSWSC 392

Kenny v Ebling Pty Ltd [2001] NSWSC 392

There was before the Court on 12 April 2001 an application by Mr Kenny, who then intended to commence proceedings, for extension of a caveat and perhaps other relief. The application was determined within the meaning of Part 28 r 1(3) when it was withdrawn and not proceeded with. The proposed defendant's attendance did not alter the ex parte character of the application, and neither the respondent's failure to request the undertaking on the day nor the Court's failure then to require it prevented the Court from later requiring the applicant to file a summons.

Jurisdiction
Australia
Judgment Date
18 April 2001
Procedural Posture
Urgent Pre Commencement Application for Extension of Caveat and Other Orders / After Applicant Withdrew the Application; Question Whether Applicant Must File a Summons
Outcome
Applicant required to file summons.
Legal Topics
['pre Commencement Urgent Applications' 'extension of Caveat' 'ex Parte Applications' 'costs' 'filing Originating Process']
['civil Procedure' 'equity' 'real Property'] ['pre Commencement Urgent Applications' 'extension of Caveat' 'ex Parte Applications' 'costs' 'filing Originating Process']

Case Brief

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Procedural Posture

Urgent Pre Commencement Application for Extension of Caveat and Other Orders / After Applicant Withdrew the Application; Question Whether Applicant Must File a Summons

Legal Issues

  1. 1 ['Whether Part 28 r 1(3) of the Supreme Court Rules 1970 applied after the applicant withdrew an urgent pre-commencement application before any summons was filed.' 'Whether the attendance of a proposed defendant on notice transformed the proposed ex parte application into a contested application.' 'Whether the Court could require the applicant to file a summons so that costs could be dealt with.']

Ratio Decidendi

There was before the Court on 12 April 2001 an application by Mr Kenny, who then intended to commence proceedings, for extension of a caveat and perhaps other relief. The application was determined within the meaning of Part 28 r 1(3) when it was withdrawn and not proceeded with. The proposed defendant's attendance did not alter the ex parte character of the application, and neither the respondent's failure to request the undertaking on the day nor the Court's failure then to require it prevented the Court from later requiring the applicant to file a summons.

Court Disposition

Applicant required to file summons.

Orders

  • ['John Paul Kenny was required to file on or before 26 April 2001 a summons naming as defendants Ebling Pty Limited and Country Heights Australia Pty Limited and such other defendants as he may be advised, returnable before Hamilton J at 9.30 am on 10 May 2001.' 'The summons sought to be filed in Court was made...