Feldman & Ors v Blake Napier Ltd as trustee of the Blake Napier Property Trust & Ors [2011] NSWSC 456

Feldman & Ors v Blake Napier Ltd as trustee of the Blake Napier Property Trust & Ors [2011] NSWSC 456

The plaintiffs are not entitled to summary judgment nor to determination of a separate question about set-off because the defendants have at least an arguable equitable set-off defence, and issues concerning entitlement, connection between claims and cross-claims, as well as remoteness of loss, require resolution of factual questions inappropriate for summary determination.

Jurisdiction
Australia
Judgment Date
27 May 2011
Procedural Posture
Civil / Interlocutory Determination of Motions for Summary Judgment and Separate Question
Outcome
Plaintiffs' motions filed 24 March 2011 dismissed.
Legal Topics
['summary Disposal' 'equitable Set Off' 'breach of Restraint' 'enforcement of Deed']
['civil Procedure' 'equity'] ['summary Disposal' 'equitable Set Off' 'breach of Restraint' 'enforcement of Deed']

Case Brief

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Procedural Posture

Civil / Interlocutory Determination of Motions for Summary Judgment and Separate Question

Legal Issues

  1. 1 ['Whether plaintiffs are entitled to summary judgment on the claim for the Tax Debt against the defendants' "Whether the subject matter of the defendants' cross-claim is sufficiently connected to the plaintiffs' claim to permit an equitable set-off" 'Whether defendants are entitled to bring a claim said to give rise to set-off for losses from alleged breach of restraint']

Ratio Decidendi

The plaintiffs are not entitled to summary judgment nor to determination of a separate question about set-off because the defendants have at least an arguable equitable set-off defence, and issues concerning entitlement, connection between claims and cross-claims, as well as remoteness of loss, require resolution of factual questions inappropriate for summary determination.

Court Disposition

Plaintiffs' motions filed 24 March 2011 dismissed.

Orders

  • ["The plaintiffs' motions filed on 24 March 2011 be dismissed."]