Lawjag Pty Ltd & Anor v McKenzie [2007] NSWSC 168

Lawjag Pty Ltd & Anor v McKenzie [2007] NSWSC 168

Because the three agreements had emerged only the previous night and clearly impacted upon the substantive proceedings and the notice of motion, the proper course was to adjourn the application to enable the plaintiffs to assess their position; however, the adjournment should be shorter than sought and the plaintiffs should pay the defendant's costs thrown away by the adjournment.

Jurisdiction
Australia
Judgment Date
01 March 2007
Procedural Posture
Notice of Motion for an Asset Preservation Order With Respect to Proceeds of Sale of Property / Application for Adjournment of Notice of Motion
Outcome
Adjournment granted subject to order to pay costs thrown away.
Legal Topics
['adjournments' 'asset Preservation Orders' 'constructive Trust' 'resulting Trust' 'equitable Charge']
['civil Procedure' 'equity'] ['adjournments' 'asset Preservation Orders' 'constructive Trust' 'resulting Trust' 'equitable Charge']

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Procedural Posture

Notice of Motion for an Asset Preservation Order With Respect to Proceeds of Sale of Property / Application for Adjournment of Notice of Motion

Legal Issues

  1. 1 ["Whether the plaintiffs' notice of motion for an asset preservation order over proceeds of sale of the Santai apartment should be adjourned after late service by the defendant of an affidavit annexing three agreements relevant to the plaintiffs' claim." 'Whether any adjournment should be subject to a costs order for costs thrown away.']

Ratio Decidendi

Because the three agreements had emerged only the previous night and clearly impacted upon the substantive proceedings and the notice of motion, the proper course was to adjourn the application to enable the plaintiffs to assess their position; however, the adjournment should be shorter than sought and the plaintiffs should pay the defendant's costs thrown away by the adjournment.

Court Disposition

Adjournment granted subject to order to pay costs thrown away.

Orders

  • ['The matter stand over before the Registrar at 9.30 a.m. on Tuesday of the next week.' "The plaintiffs pay the defendant's costs thrown away by the adjournment."]