COHEN v McWILLIAM [1995] NSWCA 82

COHEN v McWILLIAM [1995] NSWCA 82

The orders may be amended before entry to include an undertaking as a condition, mirroring the position that would have applied had leave to amend the defence been granted at first instance, ensuring fairness to both sides given the procedural posture.

Parties
Appellant: Mrs Cohen; Respondent: McWilliam
Jurisdiction
Australia
Judgment Date
15 December 1995
Procedural Posture
Notice of Motion (post Appeal) / Post Appeal Orders (modification of Orders Prior to Entry)
Outcome
Orders varied as sought in the Notice of Motion, with undertaking required as a condition; costs of the application to be part of the costs of the appeal payable by the respondents, with potential qualification for a certificate under the Suitors Fund Act.
Legal Topics
Amendment of Defence, Undertaking as to Property, Security for Costs
Civil Procedure Amendment of Defence Undertaking as to Property Security for Costs

Case Brief

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Parties

Mrs Cohen

Appellant

McWilliam

Respondent

Procedural Posture

Notice of Motion (post Appeal) / Post Appeal Orders (modification of Orders Prior to Entry)

Legal Issues

  1. 1 Whether an undertaking to the court regarding property should continue post-appeal
  2. 2 Whether orders should be amended to condition relief on the giving of an undertaking

Ratio Decidendi

The orders may be amended before entry to include an undertaking as a condition, mirroring the position that would have applied had leave to amend the defence been granted at first instance, ensuring fairness to both sides given the procedural posture.

Court Disposition

Orders varied as sought in the Notice of Motion, with undertaking required as a condition; costs of the application to be part of the costs of the appeal payable by the respondents, with potential qualification for a certificate under the Suitors Fund Act.

Orders

  • Orders to include the condition that Mrs Cohen gives an amended undertaking as set out (and initialled) on the schedule to the Notice of Motion.
  • The costs of today's application are to be part of the costs of the appeal which the respondents are to pay; if qualified, respondents may have a certificate under the Suitors Fund Act.