Custom Coaches (Sales) Pty Ltd v Frankish [2002] NSWSC 469

Custom Coaches (Sales) Pty Ltd v Frankish [2002] NSWSC 469

Because the first and second defendants had been served and had not appeared, they were in default and the plaintiff was entitled to seek final relief. The evidence firmly established part of the plaintiff's monetary and trust claims, justifying summary judgment for those amounts and a declaration over the joint account. As further amounts and possible tracing into real property remained unquantified, the proper course was to order inquiries before a Master and return the matter for further consideration rather than make an inchoate final order for judgment in an amount later certified by the Master.

Jurisdiction
Australia
Judgment Date
17 May 2002
Procedural Posture
Equity Proceedings / Motion for Final Relief Including Summary Judgment and Default Judgment Issues, With Inquiries Before a Master Ordered for Remaining Claims
Outcome
Summary judgment entered for parts of the plaintiff's claim; inquiries before a Master ordered for the balance of claims; proceedings adjourned for further consideration.
Legal Topics
['supreme Court Procedure' 'summary Judgment' 'default Judgment' "master's Inquiries" 'further Consideration by Court' 'mareva Relief' 'money Had and Received' 'declaration of Trust']
['civil Procedure' 'equity' 'trusts' 'restitution'] ['supreme Court Procedure' 'summary Judgment' 'default Judgment' "master's Inquiries" 'further Consideration by Court' 'mareva Relief' 'money Had and Received' 'declaration of Trust']

Case Brief

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Procedural Posture

Equity Proceedings / Motion for Final Relief Including Summary Judgment and Default Judgment Issues, With Inquiries Before a Master Ordered for Remaining Claims

Legal Issues

  1. 1 ['Whether the first and second defendants were in default so that the plaintiff could move for final relief under Part 17 r 9 of the Supreme Court Rules 1970.' 'Whether summary judgment should be entered under Part 13 r 2 for amounts firmly established by the evidence.' "Whether moneys paid into the first and second defendants' joint bank account should be declared held on trust for the plaintiff to the extent proved." 'Whether remaining unidentified or unquantified claims should proceed by inquiry before a Master rather than by an order for judgment for an amount later to be certified.' "Whether the first and second defendants should pay the plaintiff's costs to date."]

Ratio Decidendi

Because the first and second defendants had been served and had not appeared, they were in default and the plaintiff was entitled to seek final relief. The evidence firmly established part of the plaintiff's monetary and trust claims, justifying summary judgment for those amounts and a declaration over the joint account. As further amounts and possible tracing into real property remained unquantified, the proper course was to order inquiries before a Master and return the matter for further consideration rather than make an inchoate final order for judgment in an amount later certified by the Master.

Court Disposition

Summary judgment entered for parts of the plaintiff's claim; inquiries before a Master ordered for the balance of claims; proceedings adjourned for further consideration.

Orders

  • ["Summary judgment entered for parts of the plaintiff's claim against the first and second defendants." 'Judgment to be given for the plaintiff in respect of fully proven amounts totalling $328851.10 by way of satisfaction of part of its claims under Part 13 r 2 of the Supreme Court Rules 1970.' 'Interest awarded to...