Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 9) [2020] NSWSC 1458

Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 9) [2020] NSWSC 1458

The Court held Coverforce Holdings Pty Ltd was not 'absent' for the purpose of UCPR r 36.16(2)(b), as its shareholder/directors were present, argued, and had every opportunity to advance its interests; therefore, the power to vary did not arise. Even if it were engaged, the Court would not exercise its discretion as the orders were final, the parties had notice, the delay was foreseeable, and Coverforce could pay the amount without demonstrated prejudice.

Jurisdiction
Australia
Judgment Date
21 October 2020
Procedural Posture
Notice of Motion (application to Vary Orders in Ongoing Equity/commercial List Proceedings) / Final Decision on Application to Vary Final Orders and for Consequential Relief
Outcome
Plaintiff's notice of motion of 15 October 2020 dismissed with costs.
Legal Topics
['varying Final Court Orders' 'absence of Parties' 'bank Guarantees' 'enforcement of Judgments' 'insolvency Presumptions']
['equity' 'commercial Law' 'corporations Law'] ['varying Final Court Orders' 'absence of Parties' 'bank Guarantees' 'enforcement of Judgments' 'insolvency Presumptions']

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Procedural Posture

Notice of Motion (application to Vary Orders in Ongoing Equity/commercial List Proceedings) / Final Decision on Application to Vary Final Orders and for Consequential Relief

Legal Issues

  1. 1 ['Whether the Court had power under UCPR r 36.16(2)(b) to vary a final order made in the absence of a party' "Whether Coverforce Holdings Pty Ltd was 'absent' for purposes of rule 36.16(2)(b)" 'Whether in any event the Court should exercise its discretion to vary the orders concerning the provision of a bank guarantee by Coverforce']

Ratio Decidendi

The Court held Coverforce Holdings Pty Ltd was not 'absent' for the purpose of UCPR r 36.16(2)(b), as its shareholder/directors were present, argued, and had every opportunity to advance its interests; therefore, the power to vary did not arise. Even if it were engaged, the Court would not exercise its discretion as the orders were final, the parties had notice, the delay was foreseeable, and Coverforce could pay the amount without demonstrated prejudice.

Court Disposition

Plaintiff's notice of motion of 15 October 2020 dismissed with costs.

Orders

  • ["Plaintiff's notice of motion of 15 October 2020 dismissed with costs."]