MALAN v SILVAS [NO 2] [1991] NSWCA 184

MALAN v SILVAS [NO 2] [1991] NSWCA 184

It is desirable, in the interests of the claimant, the opponent, and the due administration of justice, that the claimant be legally represented. The order restraining access to property should be varied to allow the claimant to raise up to $12,000, subject to appropriate consents and safeguards, solely for appeal-related costs.

Parties
Claimant: John Malan; Opponent: Mr Silvas
Jurisdiction
Australia
Judgment Date
26 August 1991
Procedural Posture
Motion / Interlocutory
Outcome
Order made varying restraining order to permit mortgage up to $12,000 for legal costs, subject to conditions.
Legal Topics
Variation of Court Orders, Access to Property to Fund Legal Costs, Self Represented Litigants
Practice and Procedure Variation of Court Orders Access to Property to Fund Legal Costs Self Represented Litigants

Case Brief

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Parties

John Malan

Claimant

Mr Silvas

Opponent

Procedural Posture

Motion / Interlocutory

Legal Issues

  1. 1 Whether to vary restraining order to permit claimant to mortgage property to fund legal costs of appeal

Ratio Decidendi

It is desirable, in the interests of the claimant, the opponent, and the due administration of justice, that the claimant be legally represented. The order restraining access to property should be varied to allow the claimant to raise up to $12,000, subject to appropriate consents and safeguards, solely for appeal-related costs.

Court Disposition

Order made varying restraining order to permit mortgage up to $12,000 for legal costs, subject to conditions.

Orders

  • Operation of restraining order varied: claimant entitled to lodge mortgage over land up to $12,000, subject to consent of other joint tenant and interested parties and immediate payment to solicitor for appeal-related costs only.
  • Solicitor to consult Registrar of Court of Appeal to secure agreement to documentation necessary for mortgage.