Australian Executor Trustees v Tilley (No.1) [2012] NSWSC 1071

Australian Executor Trustees v Tilley (No.1) [2012] NSWSC 1071

The adjournment was refused because the defendants had agreed that time was of the essence for payment of the second instalment by 15 July 2012 and that AET could enter judgment on default; the default was undisputed; the defendants gave only a wholly inadequate explanation for failing to pay on time or since; and the evidence did not provide confidence that funds would be available within two weeks. Having regard to the history and the interests of justice, AET should not be required to wait while the defendants and an associated company made arrangements to pay money already due.

Jurisdiction
Australia
Judgment Date
22 August 2012
Procedural Posture
Application for Adjournment in Proceedings for Possession and Enforcement of Settlement/consent Judgment / Ex Tempore Judgment on Application for Adjournment
Outcome
Application for adjournment rejected.
Legal Topics
['application for Adjournment' 'dictates of Justice' 'just, Quick and Cheap Resolution of Proceedings' 'deed of Settlement' 'default in Payment' 'possession of Land']
['practice and Procedure' 'civil Procedure' 'mortgage and Secured Transactions'] ['application for Adjournment' 'dictates of Justice' 'just, Quick and Cheap Resolution of Proceedings' 'deed of Settlement' 'default in Payment' 'possession of Land']

Case Brief

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Procedural Posture

Application for Adjournment in Proceedings for Possession and Enforcement of Settlement/consent Judgment / Ex Tempore Judgment on Application for Adjournment

Legal Issues

  1. 1 ['Whether the matter should be adjourned until 6 September 2012 to allow the defendants to raise funds to pay the second instalment due under the Deed of Settlement.' 'Whether the defendants had provided an adequate explanation for failing to pay the second instalment by 15 July 2012 or since that date.' 'Whether the interests of justice under the Civil Procedure Act 2005 favoured an adjournment.']

Ratio Decidendi

The adjournment was refused because the defendants had agreed that time was of the essence for payment of the second instalment by 15 July 2012 and that AET could enter judgment on default; the default was undisputed; the defendants gave only a wholly inadequate explanation for failing to pay on time or since; and the evidence did not provide confidence that funds would be available within two weeks. Having regard to the history and the interests of justice, AET should not be required to wait while the defendants and an associated company made arrangements to pay money already due.

Court Disposition

Application for adjournment rejected.

Orders

  • ['The application for an adjournment is rejected.']