Brasington v Overton Investments Pty Ltd [2001] FCA 571

Brasington v Overton Investments Pty Ltd [2001] FCA 571

The executors had not taken the steps contemplated by clauses 41 or 42 of the trust deed, so no refund was yet payable and the interlocutory relief and proposed cross claim were premature and misconceived. Their pleading of s 181 of the Retirement Villages Act 1999 (NSW) was embarrassing and could not stand. Because the motions were misconceived and final resolution was likely to be delayed by related proceedings, the Court granted leave to amend the notice of motion but ordered the executors to pay costs and allowed taxation of those costs forthwith.

Jurisdiction
Australia
Judgment Date
30 April 2001
Procedural Posture
Federal Court Civil Proceeding Involving an Interlocutory Motion for Leave to File a Cross Claim and Costs Orders / Interlocutory Motion
Outcome
Leave granted to file an amended notice of motion; motion costs ordered against Richard Shipman and Cheryl Patrick; leave granted for taxation of costs forthwith; time for Overton Investments Pty Limited to file evidence extended.
Legal Topics
['leave to File Cross Claim' 'interlocutory Relief' 'refund Under Retirement Village Trust Deed and Lease' 'taxation of Interlocutory Costs Before Conclusion of Principal Proceeding']
['civil Procedure' 'costs' 'retirement Villages' 'trusts and Leases'] ['leave to File Cross Claim' 'interlocutory Relief' 'refund Under Retirement Village Trust Deed and Lease' 'taxation of Interlocutory Costs Before Conclusion of Principal Proceeding']

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Procedural Posture

Federal Court Civil Proceeding Involving an Interlocutory Motion for Leave to File a Cross Claim and Costs Orders / Interlocutory Motion

Legal Issues

  1. 1 ['Whether Richard Shipman and Cheryl Patrick should be granted leave to file or amend a notice of motion seeking leave to file a cross claim and interlocutory relief.' 'Whether any refund was presently payable to the executors under the lease and trust deed.' 'Whether reliance on s 181 of the Retirement Villages Act 1999 (NSW) was properly pleaded.' 'Whether costs of the interlocutory motions should be taxed forthwith before conclusion of the principal proceeding.']

Ratio Decidendi

The executors had not taken the steps contemplated by clauses 41 or 42 of the trust deed, so no refund was yet payable and the interlocutory relief and proposed cross claim were premature and misconceived. Their pleading of s 181 of the Retirement Villages Act 1999 (NSW) was embarrassing and could not stand. Because the motions were misconceived and final resolution was likely to be delayed by related proceedings, the Court granted leave to amend the notice of motion but ordered the executors to pay costs and allowed taxation of those costs forthwith.

Court Disposition

Leave granted to file an amended notice of motion; motion costs ordered against Richard Shipman and Cheryl Patrick; leave granted for taxation of costs forthwith; time for Overton Investments Pty Limited to file evidence extended.

Orders

  • ['Richard John Shipman and Cheryl Ann Patrick be granted leave to file an amended notice of motion seeking leave to file a cross claim and relief against Overton Investments Pty Limited and Cuzeno RVM Pty Limited in relation to the fund held by the solicitors for Cuzeno RVM Pty Limited in respect of the...