Tsatsoulis & anor v Trigamist Holdings Pty Limited [2000] NSWSC 900

Tsatsoulis & anor v Trigamist Holdings Pty Limited [2000] NSWSC 900

The plaintiffs' claim for an account in respect of rentals received by the mortgagee is precluded by operation of Rolfe J's order of 21 May 1999, which prohibits further proceedings in relation to the mortgages in issue. Even if not so precluded, the court would exercise its discretion to refuse relief as there is no evidence of a surplus, an offer to redeem, or capacity to pay, and the taking of an account would be futile.

Jurisdiction
Australia
Judgment Date
08 September 2000
Procedural Posture
Civil / Judgment on Application for Account and Whether Plaintiffs Are Precluded by Prior Orders
Outcome
Plaintiffs' summons dismissed; costs awarded to Defendants on party and party basis.
Legal Topics
['mortgages' 'accounts' 'remedies' 'preclusion by Prior Proceedings' 'discretionary Relief']
['equity' 'property Law'] ['mortgages' 'accounts' 'remedies' 'preclusion by Prior Proceedings' 'discretionary Relief']

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Procedural Posture

Civil / Judgment on Application for Account and Whether Plaintiffs Are Precluded by Prior Orders

Legal Issues

  1. 1 ['Whether plaintiffs are precluded from obtaining an account against the mortgagee by reason of orders in other proceedings' 'Whether, in any event, court should exercise discretion to grant an account for rentals received by mortgagee in possession']

Ratio Decidendi

The plaintiffs' claim for an account in respect of rentals received by the mortgagee is precluded by operation of Rolfe J's order of 21 May 1999, which prohibits further proceedings in relation to the mortgages in issue. Even if not so precluded, the court would exercise its discretion to refuse relief as there is no evidence of a surplus, an offer to redeem, or capacity to pay, and the taking of an account would be futile.

Court Disposition

Plaintiffs' summons dismissed; costs awarded to Defendants on party and party basis.

Orders

  • ['Summons dismissed.' "Plaintiffs to pay Defendants' costs on a party and party basis." 'Exhibits may be returned.']