Lym International Pty Limited v Chen [2010] NSWSC 875

Lym International Pty Limited v Chen [2010] NSWSC 875

The transfer order had become otiose in practical operation because Mr Chen was not present in the jurisdiction to receive tender and apply it to discharge the mortgage, and there was no substantive difference between that course and direct payment by Lym International to Westpac; therefore the order should be varied and the Registrar authorised to execute the transfer, without interfering with Westpac's or its receivers' sale contracts. The taking of accounts and consequential charge and restraint orders had not become otiose merely because Mr Chen had failed to comply with accounting directions, because the court could still make orders to complete the account with or without his...

Jurisdiction
Australia
Judgment Date
23 July 2010
Procedural Posture
Practice and Procedure Application by Plaintiffs to Discharge or Vary Orders Said to Have Become Otiose by Changing Circumstances / Notice of Motion Filed 16 June 2010 Following Trial Orders and Court of Appeal Variations
Outcome
Order 1(A) of the notice of motion granted with additional wording; order 1(C) refused; order 1(B) not pressed; costs orders made.
Legal Topics
['variation of Orders' 'otiose Orders' 'taking of Accounts' 'breach of Fiduciary Duty' 'rescission and Reconveyance of Property' 'mortgage Discharge' 'charge Over Units' 'costs']
['practice and Procedure' 'equity' 'fiduciary Duties' 'trusts' 'property Law'] ['variation of Orders' 'otiose Orders' 'taking of Accounts' 'breach of Fiduciary Duty' 'rescission and Reconveyance of Property' 'mortgage Discharge' 'charge Over Units' 'costs']

Case Brief

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Procedural Posture

Practice and Procedure Application by Plaintiffs to Discharge or Vary Orders Said to Have Become Otiose by Changing Circumstances / Notice of Motion Filed 16 June 2010 Following Trial Orders and Court of Appeal Variations

Legal Issues

  1. 1 ["Whether the order requiring tender to Mr Chen before transfer of the units should be varied so that payment to discharge the mortgage could be made directly to Westpac and the Registrar could execute the transfer on Mr Chen's behalf." 'Whether the orders for taking accounts, imposing a charge, restraining dealings with the units and requiring proceeds of sale to be held in a controlled moneys account had become otiose by changed circumstances.' "Whether Mr Chen's failure to comply with accounting orders justified staying the taking of accounts." 'What costs orders should be made on the notice of motion.']

Ratio Decidendi

The transfer order had become otiose in practical operation because Mr Chen was not present in the jurisdiction to receive tender and apply it to discharge the mortgage, and there was no substantive difference between that course and direct payment by Lym International to Westpac; therefore the order should be varied and the Registrar authorised to execute the transfer, without interfering with Westpac's or its receivers' sale contracts. The taking of accounts and consequential charge and restraint orders had not become otiose merely because Mr Chen had failed to comply with accounting directions, because the court could still make orders to complete the account with or without his...

Court Disposition

Order 1(A) of the notice of motion granted with additional wording; order 1(C) refused; order 1(B) not pressed; costs orders made.

Orders

  • ['Make order in para 1(A) of the notice of motion filed on 16 June 2010 adding after the words "first plaintiff" at the end of the substituted order "but not so as to interfere with the completion of any contract for sale of a Unit entered into by the second defendant or any receiver appointed by the second...