AT Air Group Pty Ltd v Dieter Siewart; (No 5 ) [2014] NSWSC 1709

AT Air Group Pty Ltd v Dieter Siewart; (No 5 ) [2014] NSWSC 1709

The plaintiffs had consciously underpaid mortgage payments for several months, had not disclosed the full position on earlier applications, remained in default of the undertaking, and had not adduced evidence establishing impecuniosity. The proceedings should therefore be stayed unless the plaintiffs remedied the breach by reducing the secured amount outstanding to $1.8 million by the specified date or obtained relief from the undertaking.

Jurisdiction
Australia
Judgment Date
01 December 2014
Procedural Posture
Procedural Ruling in Equity Division Corporations List / Motion Concerning Default on Undertaking to the Court; Ex Tempore Judgment
Outcome
Proceedings stayed unless the plaintiffs remedy the apparent breach of undertaking or are relieved from the undertaking; liberty to apply; plaintiffs to pay defendants' costs of the motion.
Legal Topics
['undertaking to the Court' 'default on Undertaking' 'stay of Proceedings' 'impecuniosity' 'costs']
['civil Procedure' 'equity' 'corporations'] ['undertaking to the Court' 'default on Undertaking' 'stay of Proceedings' 'impecuniosity' 'costs']

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Procedural Posture

Procedural Ruling in Equity Division Corporations List / Motion Concerning Default on Undertaking to the Court; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proceedings should be stayed because the plaintiffs remained in default of an undertaking to pay outgoings and not default on liabilities relating to the property.' 'Whether the plaintiffs had established impecuniosity sufficient to justify relief from the consequences of the apparent breach of undertaking.' 'What orders should be made in relation to remedying the breach, liberty to apply, and costs.']

Ratio Decidendi

The plaintiffs had consciously underpaid mortgage payments for several months, had not disclosed the full position on earlier applications, remained in default of the undertaking, and had not adduced evidence establishing impecuniosity. The proceedings should therefore be stayed unless the plaintiffs remedied the breach by reducing the secured amount outstanding to $1.8 million by the specified date or obtained relief from the undertaking.

Court Disposition

Proceedings stayed unless the plaintiffs remedy the apparent breach of undertaking or are relieved from the undertaking; liberty to apply; plaintiffs to pay defendants' costs of the motion.

Orders

  • ['Unless by 15 December 2014 the plaintiffs have remedied their apparent breach of the undertaking contained in para 4 of the orders made on 25 June 2012 by reducing the amount outstanding to the National Australia Bank secured on the mortgage over 13B Pearl Bay Avenue, Mosman to $1.8 million, or have by that date...