Badman v Drake [2008] NSWSC 968

Badman v Drake [2008] NSWSC 968

The balance of convenience favoured declining to require the Drakes to pay the balance of proceeds into court, as granting such an injunction would prevent them from defending the proceedings, particularly where they have a seriously arguable defence and some pre-existing equity in the property; limited injunction granted on terms agreed to by the Drakes.

Jurisdiction
Australia
Judgment Date
22 August 2008
Procedural Posture
Injunction Application / Interlocutory
Outcome
Limited injunction granted; additional relief declined; costs in the cause.
Legal Topics
['injunctions' 'proprietary Claims' 'resulting Trust' 'constructive Trust' 'balance of Convenience']
['equity'] ['injunctions' 'proprietary Claims' 'resulting Trust' 'constructive Trust' 'balance of Convenience']

Case Brief

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Procedural Posture

Injunction Application / Interlocutory

Legal Issues

  1. 1 ['Whether to grant an interlocutory injunction restraining the Drakes from dealing with proceeds of a real property transaction' 'Whether injunction should extend to require payment into court of remaining funds']

Ratio Decidendi

The balance of convenience favoured declining to require the Drakes to pay the balance of proceeds into court, as granting such an injunction would prevent them from defending the proceedings, particularly where they have a seriously arguable defence and some pre-existing equity in the property; limited injunction granted on terms agreed to by the Drakes.

Court Disposition

Limited injunction granted; additional relief declined; costs in the cause.

Orders

  • ['Plaintiff granted leave to amend Notice of Motion.' 'Orders 2 and 3 in Short Minutes (not specified in text) made upon undertaking as to damages.' 'Balance of Motion stood over to Expedition List.' 'Defendants granted leave to issue subpoena to Dr Ann Lowe.' 'Abridgment of time for service of subpoena ordered.'...