Jaken Properties Australia Pty Ltd v Naaman (No 2) [2023] NSWCA 254

Jaken Properties Australia Pty Ltd v Naaman (No 2) [2023] NSWCA 254

The Court declined to postpone making orders merely because of the respondent's special leave application, because the interlocutory appeal should be completely resolved if possible. It dismissed the appellants' notice of motion because the Court of Appeal proceedings were being resolved, the relief concerned an interlocutory regime affecting disputed assets and the Bank's security, the Bank had not been heard, and the matter should be dealt with in the Equity Division. The Court set aside additional answers and substituted answers reflecting its earlier judgment, declining to answer questions concerning the Draw Down where the term was ambiguous and the National Australia Bank was...

Jurisdiction
Australia
Judgment Date
26 October 2023
Procedural Posture
Interlocutory Appeal; Consequential Orders / Consequential Orders After Judgment Granting Leave to Appeal and Allowing the Interlocutory Appeal in Part
Outcome
Interlocutory appeal consequential orders made; notice of motion dismissed with costs; proceedings remitted to the Equity Division for decision of all remaining issues.
Legal Topics
['consequential Orders' 'special Leave Application' 'interlocutory Relief' 'freezing Orders' 'caveat' 'remitter to Equity Division' 'fiduciary Duty' 'breach of Trust' 'accessorial Liability' 'costs']
['civil Procedure' 'equity' 'trusts' 'real Property'] ['consequential Orders' 'special Leave Application' 'interlocutory Relief' 'freezing Orders' 'caveat' 'remitter to Equity Division' 'fiduciary Duty' 'breach of Trust' 'accessorial Liability' 'costs']

Case Brief

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Procedural Posture

Interlocutory Appeal; Consequential Orders / Consequential Orders After Judgment Granting Leave to Appeal and Allowing the Interlocutory Appeal in Part

Legal Issues

  1. 1 ['Whether the Court should make no orders because the respondent had filed an application for special leave to appeal.' 'Whether the answers to additional questions framed by the primary judge should be set aside and what answers should be substituted.' "Whether the appellants' notice of motion seeking vacation or variation of freezing orders and removal of a caveat should be entertained in the Court of Appeal." 'Whether questions concerning the $3.6m Draw Down should be answered in light of ambiguity in the definition of Draw Down and the absence of the National Australia Bank.' 'What costs orders should be made for the appeal and the notice of motion.']

Ratio Decidendi

The Court declined to postpone making orders merely because of the respondent's special leave application, because the interlocutory appeal should be completely resolved if possible. It dismissed the appellants' notice of motion because the Court of Appeal proceedings were being resolved, the relief concerned an interlocutory regime affecting disputed assets and the Bank's security, the Bank had not been heard, and the matter should be dealt with in the Equity Division. The Court set aside additional answers and substituted answers reflecting its earlier judgment, declining to answer questions concerning the Draw Down where the term was ambiguous and the National Australia Bank was...

Court Disposition

Interlocutory appeal consequential orders made; notice of motion dismissed with costs; proceedings remitted to the Equity Division for decision of all remaining issues.

Orders

  • ['In addition to order 3 made on 8 September 2023, also set aside the answers to questions 9(a) and (b), 16(a), 17(a), 20 and 41.' "In lieu of the answers set aside by order 3 made on 8 September 2023 and order 1 above, answer those questions as specified in the Court's orders, including answers of no, inappropriate...