Australian Receivables Limited v Tekitu & Ors [2010] NSWSC 823

Australian Receivables Limited v Tekitu & Ors [2010] NSWSC 823

The defendants did not establish any material change in circumstances or discovery of new material warranting variation of Brereton J's order. The matters relied on were known or could have been raised at the original hearing, the plaintiff's admission did not alter the position because Brereton J had proceeded on the basis that the purchase price claim was seriously arguable, and the first defendant's financial pressure did not justify release of funds claimed by the plaintiff as proprietary. The asserted unpaid seller's lien and its priority over the plaintiff's constructive trust remained issues for final determination, not grounds for an interlocutory order effectively granting...

Jurisdiction
Australia
Judgment Date
28 July 2010
Procedural Posture
Application for Variation of Orders / Defendants' Motion Dated 7 July 2010
Outcome
The defendants' motion dated 7 July 2010 is dismissed with costs.
Legal Topics
['variation of Orders' 'material Change in Circumstances' 'discovery of New Material' 'controlled Moneys Account' 'set Off' "unpaid Vendor's Lien" 'constructive Trust' 'balance of Convenience']
['practice and Procedure' 'equity'] ['variation of Orders' 'material Change in Circumstances' 'discovery of New Material' 'controlled Moneys Account' 'set Off' "unpaid Vendor's Lien" 'constructive Trust' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Variation of Orders / Defendants' Motion Dated 7 July 2010

Legal Issues

  1. 1 ['Whether the defendants established a material change in circumstances since the order made by Brereton J on 4 April 2008 or the discovery of new material which could not reasonably have been put before the court on the original application.' "Whether the plaintiff's admission that some purchase price was owing and the defendants' asserted unpaid vendor's lien justified release of money held in the controlled moneys account." "Whether the first defendant's winding-up summons, payroll tax liability and legal costs justified variation of the existing restraint order."]

Ratio Decidendi

The defendants did not establish any material change in circumstances or discovery of new material warranting variation of Brereton J's order. The matters relied on were known or could have been raised at the original hearing, the plaintiff's admission did not alter the position because Brereton J had proceeded on the basis that the purchase price claim was seriously arguable, and the first defendant's financial pressure did not justify release of funds claimed by the plaintiff as proprietary. The asserted unpaid seller's lien and its priority over the plaintiff's constructive trust remained issues for final determination, not grounds for an interlocutory order effectively granting...

Court Disposition

The defendants' motion dated 7 July 2010 is dismissed with costs.

Orders

  • ["The defendants' motion dated 7 July 2010 is dismissed with costs."]