Devon Marshall Constructions Pty Ltd v Kingscliff Nominee Mortgages Pty Ltd (in liq) [1999] NSWSC 255

Devon Marshall Constructions Pty Ltd v Kingscliff Nominee Mortgages Pty Ltd (in liq) [1999] NSWSC 255

Given a prima facie case for indemnity over trust funds and no authority clearly precluding injunctive relief, the funds should be frozen pending determination of substantive proceedings, with liberty for parties to apply to vary or discharge the injunction.

Jurisdiction
Australia
Judgment Date
26 March 1999
Procedural Posture
Interlocutory Application / Hearing for Interlocutory Injunction
Outcome
Interlocutory injunction granted; costs of application to be plaintiff's costs in the proceedings.
Legal Topics
['lawyers' 'accounts and Trust Money' 'appointment of Receivers' 'property of Solicitor' 'nominee Company' 'indemnity Against Trust Funds' 'interlocutory Injunction']
['equity' 'professions and Trades'] ['lawyers' 'accounts and Trust Money' 'appointment of Receivers' 'property of Solicitor' 'nominee Company' 'indemnity Against Trust Funds' 'interlocutory Injunction']

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Procedural Posture

Interlocutory Application / Hearing for Interlocutory Injunction

Legal Issues

  1. 1 ["Whether property of a solicitor includes property of a solicitor's nominee company under s 92(1) of the Legal Profession Act 1987" "Whether an interlocutory injunction should be granted to freeze proceeds of mortgage held by solicitor's nominee company" 'Interpretation of s 112 Legal Profession Act 1987 regarding receivable property']

Ratio Decidendi

Given a prima facie case for indemnity over trust funds and no authority clearly precluding injunctive relief, the funds should be frozen pending determination of substantive proceedings, with liberty for parties to apply to vary or discharge the injunction.

Court Disposition

Interlocutory injunction granted; costs of application to be plaintiff's costs in the proceedings.

Orders

  • ['Order 7 in the summons until further order.' 'Liberty for second defendant and third defendant to apply to discharge or vary the injunction on three days notice.' "Costs of interlocutory application to be plaintiff's costs in the proceedings." 'Second defendant to file and serve all affidavits on or before 16...