McNamara v San (No. 4) [2010] FCA 959

McNamara v San (No. 4) [2010] FCA 959

The Notice of Motion filed 18 August 2010 was dismissed on the third respondent's own application without prejudice because the relief sought would have converted the existing proceedings into a specific performance dispute against persons who were not parties, and the third respondent was ordered to pay Mr Kalyk and Mr Kalde's costs of that motion.

Jurisdiction
Australia
Judgment Date
23 August 2010
Procedural Posture
Notice of Motion in Federal Court Proceedings / Hearing of the Third Respondent's Notice of Motion Filed 18 August 2010
Outcome
The third respondent's Notice of Motion filed 18 August 2010 was dismissed on his own application, without prejudice to any right to bring fresh proceedings in relation to the alleged agreement, and the third respondent was ordered to pay Mr Kalyk and Mr Kalde's costs of that motion.
Legal Topics
['dismissal of Notice of Motion' 'costs of Interlocutory Motion' 'specific Performance Relief Sought Against Non Parties' 'federal Court Rules']
['civil Procedure' 'costs'] ['dismissal of Notice of Motion' 'costs of Interlocutory Motion' 'specific Performance Relief Sought Against Non Parties' 'federal Court Rules']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion in Federal Court Proceedings / Hearing of the Third Respondent's Notice of Motion Filed 18 August 2010

Legal Issues

  1. 1 ["Whether the third respondent's Notice of Motion filed 18 August 2010 should be dismissed or withdrawn without determining claims concerning an alleged agreement." 'Whether the existing proceedings were an appropriate vehicle for relief in the nature of specific performance concerning an alleged agreement between the third respondent, Mr Kalyk and Mr Kalde.' 'Whether any costs order should be made in respect of the Notice of Motion filed 18 August 2010.']

Ratio Decidendi

The Notice of Motion filed 18 August 2010 was dismissed on the third respondent's own application without prejudice because the relief sought would have converted the existing proceedings into a specific performance dispute against persons who were not parties, and the third respondent was ordered to pay Mr Kalyk and Mr Kalde's costs of that motion.

Court Disposition

The third respondent's Notice of Motion filed 18 August 2010 was dismissed on his own application, without prejudice to any right to bring fresh proceedings in relation to the alleged agreement, and the third respondent was ordered to pay Mr Kalyk and Mr Kalde's costs of that motion.

Orders

  • ["The third respondent's Notice of Motion filed 18 August 2010 be dismissed on his own application, such dismissal to be without prejudice to any right of the third respondent to bring fresh proceedings, in relation to the agreement alleged, against the applicant and Mr Frank Kalyk and Mr Robert Kalde." 'The third...