KERRY LOWE MANAGEMENT PTY LTD v ISHERWOOD [1990] NSWCA 106

KERRY LOWE MANAGEMENT PTY LTD v ISHERWOOD [1990] NSWCA 106

The Court found the undertaking to discontinue further proceedings was ambiguous and it would not be fair to enforce it as a general dismissal. Orders were made as set out in the short minutes initialled and placed with the papers.

Parties
Claimant: Kerry Lowe Management Pty Ltd; Respondent: Isherwood
Jurisdiction
Australia
Judgment Date
22 February 1990
Procedural Posture
Appeal / Orders After Judgment
Outcome
Orders made as per paragraphs 1 to 5 of the short minutes; application to dismiss entire proceedings not granted.

Case Brief

Summary, issues, holding and outcome

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Parties

Kerry Lowe Management Pty Ltd

Claimant

Isherwood

Respondent

Procedural Posture

Appeal / Orders After Judgment

Legal Issues

  1. 1 Ambiguity of counsel's undertaking to discontinue proceedings if unsuccessful in appeal
  2. 2 Validity of joint and several appointment of receivers and managers

Ratio Decidendi

The Court found the undertaking to discontinue further proceedings was ambiguous and it would not be fair to enforce it as a general dismissal. Orders were made as set out in the short minutes initialled and placed with the papers.

Court Disposition

Orders made as per paragraphs 1 to 5 of the short minutes; application to dismiss entire proceedings not granted.

Orders

  • Orders made in terms of paragraphs 1 to 5 of the short minutes initialled and placed with the papers.
  • Costs of mentions on two occasions this week, including today, will be costs in the appeal.