Cassaniti v Katavic

The applicants, Cassaniti and others, sought an injunction to restrain the respondent trustee, Antalija Developments No 4 Pty Ltd, from using funds ordered to be paid out of court for the payment of legal costs in defending an appeal. The application was heard by Gleeson, Kirk, and Adamson JJA of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the circumstances had materially changed since orders were made by Macfarlan JA on 10 November 2022, which permitted the payment of monies out of court to the respondent trustee. The applicants contended that the trustee should be restrained from using these funds to cover legal costs associated with the appeal, implying a change in circumstances or a need to vary the earlier order.

The Court considered the application in light of s 46(4) of the Supreme Court Act 1970 (NSW), which deals with the power to grant injunctions. The Court noted that no application had been made to discharge or vary the existing orders made by Macfarlan JA. Without evidence of a material change in circumstances since those orders were made, the Court found no basis to grant the injunction sought by the applicants.

Consequently, the Court dismissed the applicants' notice of motion with costs. The Court also confirmed that, in accordance with the order of Macfarlan JA, $100,000 of the funds held in court for the second respondent, Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, was to be paid out of court to the second respondent.