Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 480

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 480

On the medical evidence, Mr Lamb was expected to be better able to give evidence at the fixed November/December hearing than during treatment, so his evidence should not be taken on commission. Although there were changed circumstances affecting costs and funds, they did not justify changing the existing form of security from guarantees to a charge over the property or adding a negative pledge; the appropriate security remained the form previously determined, subject to independent advice for Ms Tilbury.

Jurisdiction
Australia
Judgment Date
30 May 2002
Procedural Posture
Equity Division Civil Proceedings Involving Applications for Security for Costs and Directions / Further Applications Heard on 30 May 2002
Outcome
Controller of plaintiff's evidence should not be taken on commission. Requirement of charge to support orders for security for costs refused. Negative pledge refused.
Legal Topics
['security for Costs' 'form of Security' 'guarantee' 'charge Over Real Estate' 'negative Pledge' 'taking Evidence on Commission' 'trial Directions']
['civil Procedure' 'costs'] ['security for Costs' 'form of Security' 'guarantee' 'charge Over Real Estate' 'negative Pledge' 'taking Evidence on Commission' 'trial Directions']

Case Brief

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Procedural Posture

Equity Division Civil Proceedings Involving Applications for Security for Costs and Directions / Further Applications Heard on 30 May 2002

Legal Issues

  1. 1 ["Whether Mr Lamb's evidence should be taken on commission before the fixed November/December hearing dates because of his lymphoma diagnosis and treatment." 'Whether existing security for costs by guarantee of Mr Lamb and Ms Tilbury should be extended in amount and supported by a formal charge over the equity of redemption in their jointly owned home.' 'Whether the liquidator should receive security for costs in the same form as the existing security.' 'Whether the guarantees should include a negative pledge preventing Mr Lamb and Ms Tilbury from further encumbering the property.']

Ratio Decidendi

On the medical evidence, Mr Lamb was expected to be better able to give evidence at the fixed November/December hearing than during treatment, so his evidence should not be taken on commission. Although there were changed circumstances affecting costs and funds, they did not justify changing the existing form of security from guarantees to a charge over the property or adding a negative pledge; the appropriate security remained the form previously determined, subject to independent advice for Ms Tilbury.

Court Disposition

Controller of plaintiff's evidence should not be taken on commission. Requirement of charge to support orders for security for costs refused. Negative pledge refused.

Orders

  • ["Mr Lamb's evidence was not to be taken on commission." 'The requirement of a charge over the equity of redemption in the property to support the security for costs was refused.' 'The request to incorporate a negative pledge in the guarantees was refused.' 'Minutes should be brought in accordingly.']