EVERGREEN TOURS PTY LTD v McLAREN [2010] NSWSC 1362

EVERGREEN TOURS PTY LTD v McLAREN [2010] NSWSC 1362

Leave was granted because the submitting appearance was filed at an early stage in circumstances of lack of funds and without legal advice on the merits, not as a deliberate informed election to abandon any defence; the defendants had at least an arguable case concerning the arrangements, trading in futures and derivatives, tracing of funds, and the Deed; and there was insufficient prejudice to the plaintiffs to warrant refusing leave. Limiting the defendants to contesting remedies only would not adequately serve the interests of justice.

Jurisdiction
Australia
Judgment Date
26 November 2010
Procedural Posture
Procedural and Other Ruling / Notice of Motion by Defendants Seeking Leave to Withdraw a Notice of Appearance Submitting to the Orders of the Court and to File a Further Notice of Appearance
Outcome
Defendants granted leave to withdraw their submitting appearance and to file and serve a further notice of appearance; matter to proceed by pleadings with costs orders made.
Legal Topics
['submitting Appearance' 'withdrawal of Appearance' 'leave to Defend' 'arguable Defence' 'freezing Orders' 'fiduciary Duties' 'trust Funds']
['civil Procedure' 'equity' 'trusts and Fiduciary Duties'] ['submitting Appearance' 'withdrawal of Appearance' 'leave to Defend' 'arguable Defence' 'freezing Orders' 'fiduciary Duties' 'trust Funds']

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Procedural Posture

Procedural and Other Ruling / Notice of Motion by Defendants Seeking Leave to Withdraw a Notice of Appearance Submitting to the Orders of the Court and to File a Further Notice of Appearance

Legal Issues

  1. 1 ['Whether the defendants should be granted leave to withdraw their notice of appearance submitting to the orders of the Court filed on 14 September 2010.' "Whether the defendants' explanation for filing the submitting appearance, including lack of funds and absence of advice on the merits, justified leave to withdraw it." "Whether the defendants had an arguable defence sufficient to avoid being shut out from contesting the plaintiffs' claims." 'Whether any leave should be limited to contesting the nature and extent of remedies only.']

Ratio Decidendi

Leave was granted because the submitting appearance was filed at an early stage in circumstances of lack of funds and without legal advice on the merits, not as a deliberate informed election to abandon any defence; the defendants had at least an arguable case concerning the arrangements, trading in futures and derivatives, tracing of funds, and the Deed; and there was insufficient prejudice to the plaintiffs to warrant refusing leave. Limiting the defendants to contesting remedies only would not adequately serve the interests of justice.

Court Disposition

Defendants granted leave to withdraw their submitting appearance and to file and serve a further notice of appearance; matter to proceed by pleadings with costs orders made.

Orders

  • ['The defendants be granted leave to withdraw their notice of submitting appearance filed on 14 September 2010.' 'The defendants file and serve a further notice of appearance by 3 December 2010.' 'The matter proceed by way of pleadings.' 'The plaintiffs file and serve a statement of claim by 17 December 2010.' 'The...