Provident Capital Limited v Ian Maxwell Anderson & Ors [2012] NSWSC 183

Provident Capital Limited v Ian Maxwell Anderson & Ors [2012] NSWSC 183

Construed in context, paragraphs 12 and 13 of the consent orders did not dismiss all claims against the second defendant. The proceedings remained on foot against the first defendant, and paragraph 12 expressly preserved the plaintiff's entitlement to trace into the hands of the second defendant or an entity in which she had an interest the proceeds of sale of certain chattels. Accordingly, the expression "otherwise dismissed" meant that the proceedings against the second defendant were dismissed except to the extent the orders specifically contemplated their continuation, and the second defendant's application failed.

Jurisdiction
Australia
Judgment Date
09 March 2012
Procedural Posture
Common Law Procedural Application / Second Defendant's Application for Orders Preventing the Plaintiff From Pursuing the Proceedings Against Her
Outcome
The second defendant's application was dismissed with costs.
Legal Topics
['judgments and Orders' 'construction of Consent Orders' 'meaning of "otherwise Dismissed"' 'whether Proceedings Dismissed Against a Party' 'strike Out of Amended Pleading']
['civil Procedure'] ['judgments and Orders' 'construction of Consent Orders' 'meaning of "otherwise Dismissed"' 'whether Proceedings Dismissed Against a Party' 'strike Out of Amended Pleading']

Case Brief

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Procedural Posture

Common Law Procedural Application / Second Defendant's Application for Orders Preventing the Plaintiff From Pursuing the Proceedings Against Her

Legal Issues

  1. 1 ['Whether paragraph 13 of the consent orders made on 9 June 2011 dismissed the proceedings against the second defendant so that the plaintiff could not continue claims against her.' "Whether paragraphs 12 and 13 of the consent orders preserved the plaintiff's entitlement to continue claims against the second defendant to trace proceeds of sale of relevant chattels." 'Whether the third amended statement of claim against the second defendant should be struck out or restrained.']

Ratio Decidendi

Construed in context, paragraphs 12 and 13 of the consent orders did not dismiss all claims against the second defendant. The proceedings remained on foot against the first defendant, and paragraph 12 expressly preserved the plaintiff's entitlement to trace into the hands of the second defendant or an entity in which she had an interest the proceeds of sale of certain chattels. Accordingly, the expression "otherwise dismissed" meant that the proceedings against the second defendant were dismissed except to the extent the orders specifically contemplated their continuation, and the second defendant's application failed.

Court Disposition

The second defendant's application was dismissed with costs.

Orders

  • ["The second defendant's application be dismissed with costs."]