Francis v CPI Graphics Ltd [2011] NSWSC 317

Francis v CPI Graphics Ltd [2011] NSWSC 317

The plaintiffs have established under the proper construction of the undertaking that there is a significant risk that CPI Graphics Limited may, if required by judgment, be unable to refund the mortgage proceeds with interest. Therefore, under its undertaking, CPI Graphics Limited is obliged to pay the sum (with interest) into Court.

Parties
First Plaintiff: Catherine Margaret Francis; Second Plaintiff: Robert Michael Francis; First Defendant: CPI Graphics Limited; Second Defendant: Eric Baillie Francis
Jurisdiction
Australia
Judgment Date
05 April 2011
Procedural Posture
Interlocutory Application / Motion on Undertaking Prior to Final Judgment
Outcome
Plaintiffs' motion granted in part.
Legal Topics
Undertakings to Court, Interlocutory Orders, Costs of Interlocutory Applications, Significant Risk Under Undertakings
Practice and Procedure Equity Undertakings to Court Interlocutory Orders Costs of Interlocutory Applications Significant Risk Under Undertakings

Case Brief

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Parties

Catherine Margaret Francis

First Plaintiff

Robert Michael Francis

Second Plaintiff

CPI Graphics Limited

First Defendant

Eric Baillie Francis

Second Defendant

Procedural Posture

Interlocutory Application / Motion on Undertaking Prior to Final Judgment

Legal Issues

  1. 1 Whether the plaintiffs have established a significant risk that the first defendant may be unable to refund the mortgage proceeds with interest if required by judgment
  2. 2 Proper construction of the undertaking given to the court
  3. 3 Whether a special costs order should be made for interlocutory costs to be payable forthwith

Ratio Decidendi

The plaintiffs have established under the proper construction of the undertaking that there is a significant risk that CPI Graphics Limited may, if required by judgment, be unable to refund the mortgage proceeds with interest. Therefore, under its undertaking, CPI Graphics Limited is obliged to pay the sum (with interest) into Court.

Court Disposition

Plaintiffs' motion granted in part.

Orders

  • Order that the first defendant by 15 April 2011 pay into Court to the credit of these proceedings the sum of $2,062,353.40 (which includes interest to 15 April)
  • Order that the first defendant pay the plaintiff's costs of the motion