Equititrust Limited v Checkling Pty Ltd (receiver and Manager appointed) (in Liquidation) [2012] NSWSC 121

Equititrust Limited v Checkling Pty Ltd (receiver and Manager appointed) (in Liquidation) [2012] NSWSC 121

The consent orders required the defendants to surrender occupation by 14 June 2011 as a condition precedent to entitlement to the $30,000 held in trust. As order 7 was not complied with, the conditions for release of the $30,000 were not met, and the plaintiff is entitled to repayment.

Jurisdiction
Australia
Judgment Date
27 February 2012
Procedural Posture
Civil / Motion for Orders Under Section 73 of the Civil Procedure Act 2005 Following Breach of Consent Orders
Outcome
Orders granted in plaintiff's favour
Legal Topics
['construction of Consent Orders' 'possession' 'non Compliance With Orders' 'repayment of Monies' 'costs']
['civil Procedure'] ['construction of Consent Orders' 'possession' 'non Compliance With Orders' 'repayment of Monies' 'costs']

Case Brief

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Procedural Posture

Civil / Motion for Orders Under Section 73 of the Civil Procedure Act 2005 Following Breach of Consent Orders

Legal Issues

  1. 1 ['Proper construction of consent orders and whether they were ambiguous' 'Whether the plaintiff is entitled to repayment of $30,000 following non-compliance with the order to give up possession by 14 June 2011']

Ratio Decidendi

The consent orders required the defendants to surrender occupation by 14 June 2011 as a condition precedent to entitlement to the $30,000 held in trust. As order 7 was not complied with, the conditions for release of the $30,000 were not met, and the plaintiff is entitled to repayment.

Court Disposition

Orders granted in plaintiff's favour

Orders

  • ['Pursuant to section 73 of the Civil Procedure Act 2005: on the true construction of the compromise embodied in the Judgment and Orders of the Court entered on 18 May 2011, the Plaintiff is entitled to be repaid $30,000 of the sum paid to the trust account of the solicitors for the Second and Third Defendants, DC...