JKB Holdings Pty Limited v de la Vega [2013] NSWSC 501

JKB Holdings Pty Limited v de la Vega [2013] NSWSC 501

The funds in court were paid in to abide orders of the Court including costs orders and are security for satisfaction of the plaintiffs' costs. As costs entitlements are still in assessment and no compelling reason exists for premature payment out, the defendants' motion must be dismissed. Charges created in favour of the defendants' lawyers after payment in confer no priority and are subject to court orders.

Parties
First Plaintiff: JKB Holdings Pty Ltd ACN 089 683 929; Second Plaintiff: Jason Mark Schwede; Third Plaintiff: Karen Elizabeth Schwede; First Defendant: Alejandro Jose de la Vega; Second Defendant: Lynette Margaret de la Vega
Jurisdiction
Australia
Judgment Date
08 May 2013
Procedural Posture
Motion / Post Judgment Application for Payment Out of Funds in Court
Outcome
Defendants' motion dismissed
Legal Topics
Supreme Court Procedure, Funds in Court, Payment Into and Out of Court, Security for Costs, Abuse of Process, Costs Orders
Civil Procedure Equity Supreme Court Procedure Funds in Court Payment Into and Out of Court Security for Costs Abuse of Process Costs Orders

Case Brief

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Parties

JKB Holdings Pty Ltd ACN 089 683 929

First Plaintiff

Jason Mark Schwede

Second Plaintiff

Karen Elizabeth Schwede

Third Plaintiff

Alejandro Jose de la Vega

First Defendant

Lynette Margaret de la Vega

Second Defendant

Procedural Posture

Motion / Post Judgment Application for Payment Out of Funds in Court

Legal Issues

  1. 1 Whether funds in court should be paid out to defendants for benefit of their lawyers
  2. 2 Whether defendants' application for payment out is barred by principles of res judicata or issue estoppel
  3. 3 Whether charges granted to lawyers over funds provide priority

Ratio Decidendi

The funds in court were paid in to abide orders of the Court including costs orders and are security for satisfaction of the plaintiffs' costs. As costs entitlements are still in assessment and no compelling reason exists for premature payment out, the defendants' motion must be dismissed. Charges created in favour of the defendants' lawyers after payment in confer no priority and are subject to court orders.

Court Disposition

Defendants' motion dismissed

Orders

  • Defendants' motion for payment out is dismissed
  • Costs to be determined – prima facie defendants to pay plaintiffs' costs