Provident Capital Ltd v Hazaran Pty Ltd & Michael Petrovic Lenin [2002] NSWSC 825

Provident Capital Ltd v Hazaran Pty Ltd & Michael Petrovic Lenin [2002] NSWSC 825

The court held there were no new or exceptional circumstances sufficient to warrant release or variation of the undertaking. The applicant was aware of the risk of removal of fixtures and fittings, had failed to seek protective court orders, and had relied on the agreement. Enforcement was not unjust on the evidence, and no mutual mistake existed at the time of the agreement. Accordingly, the orders sought were refused.

Parties
Plaintiff/respondent: Provident Capital Ltd; First Defendant: Hazaran Pty Ltd; Second Defendant/applicant: Michael Petrovic Lenin
Jurisdiction
Australia
Judgment Date
08 November 2002
Procedural Posture
Motion / Interlocutory Application to Vary Court Undertaking/order
Outcome
Motion dismissed. Applicant to pay Provident's costs of the Motion. No order as to costs between Hazaran and the applicant.
Legal Topics
Varying Court Undertakings, Consent Orders, Relief Against Forfeiture, Mortgages, Undertakings to Court
Equity Contract Civil Procedure Varying Court Undertakings Consent Orders Relief Against Forfeiture Mortgages Undertakings to Court

Case Brief

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Parties

Provident Capital Ltd

Plaintiff/respondent

Hazaran Pty Ltd

First Defendant

Michael Petrovic Lenin

Second Defendant/applicant

Procedural Posture

Motion / Interlocutory Application to Vary Court Undertaking/order

Legal Issues

  1. 1 Whether the court has jurisdiction to hear application to vary/abandon an undertaking given to another division (Court of Appeal)
  2. 2 Whether the agreement/undertaking can be varied or abandoned on the basis of unforeseen circumstances allegedly created by a third party
  3. 3 If enforcement of the agreement/undertaking would be unjust due to new or unforeseen facts

Ratio Decidendi

The court held there were no new or exceptional circumstances sufficient to warrant release or variation of the undertaking. The applicant was aware of the risk of removal of fixtures and fittings, had failed to seek protective court orders, and had relied on the agreement. Enforcement was not unjust on the evidence, and no mutual mistake existed at the time of the agreement. Accordingly, the orders sought were refused.

Court Disposition

Motion dismissed. Applicant to pay Provident's costs of the Motion. No order as to costs between Hazaran and the applicant.

Orders

  • Motion dismissed.
  • Applicant to pay Provident's costs of the Motion.