Kenny v Ebling Pty Ltd
[2001] NSWSC 392
•18 April 2001
CITATION: Kenny v Ebling Pty Ltd [2001] NSWSC 392 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 2266/01 HEARING DATE(S): 12 & 18 April 2001 JUDGMENT DATE:
18 April 2001PARTIES :
John Paul Kenny (P)
Ebling Pty Limited (D1)
Country Heights Australia Pty Limited (D2)JUDGMENT OF: Hamilton J
COUNSEL : J Castrission, Solicitor (P)
No appearance (D1)
G J Mackey, Solicitor (D2)SOLICITORS: Castrission & Co (P)
No appearance (D1)
Tzovaras Legal (D2)CATCHWORDS: PROCEDURE [106] - Practice under Supreme Court Rules - Interim preservation - Party seeking ex parte extension of caveat and injunction - Proposed defendant attends court on notice - Applicant decides not to proceed with application and announces he will withdraw and not file summons - Proposed defendant seeks costs - Whether applicant may be required by Court to file summons. LEGISLATION CITED: Supreme Court Rules 1970 Part 28 r 1 DECISION: Applicant required to file summons.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
WEDNESDAY, 18 APRIL 2001
2266/01 JOHN PAUL KENNY v EBLING PTY LIMITED & ANOR
JUDGMENT
1 HIS HONOUR: This is a matter which followed a somewhat unusual course. The proceedings were not at the time of the events to which I shall advert commenced, nor have they even now been commenced. The proposed plaintiff in the proceedings is one John Paul Kenny and one of the proposed defendants is Country Heights Australia Pty Limited, although it well may be that the plaintiff intended to join other defendants in the summons which, at one stage, it undoubtedly intended to file.
2 It is shown by the affidavit of R G Muddle sworn 18 April 2001 used on the application now before me that Mr Castrission, who is Mr Kenny's solicitor, wrote on 11 April 2001 to Tzovaras Legal, the proposed defendant's solicitors, a letter as follows: -
“ JOHN PAUL KENNY v EBLING PTY LTD and COUNTRY HEIGHTS AUSTRALIA PTY LTD
CERTIFICATE OF TITLE FOLIO IDENTIFIER 3/625502
MORTGAGE BY LIKER PTY LTD.
We act for Mr John Paul Kenny as an unregistered mortgagee over the abovementioned land and who has lodged a caveat, no. 7225932 over such land in order to protect his interests under the aforesaid unregistered mortgage.
Would you please advise whether you have instructions to accept service of any documents and whether you intend appearing at the proceedings."Our client will be approaching the duty Judge in Equity for orders including orders extending Caveat No. 7225932 until further order. We propose to approach the duty Judge on Thursday the 12 April, 2001 at 10.00 am or shortly thereafter.
3 There is no contemporaneous written record of what occurred in the Equity Duty Court over which I was presiding at and after 10 am on Thursday 12 April 2001. However, Mr Castrission, who now appears before me for Mr Kenny, and Mr Mackey of Tzovaras Legal, who now appears before me for Country Heights Australia Pty Limited, were both present on that occasion and are agreed that the following note I have now made represents what occurred concerning the matter during the morning of that day:
- "On 12 April 2001 when calling the duty list I called on Mr Moore whose name was on an appearance note as counsel for the plaintiff in this matter, to state what his application was. He stated that it was for the extension of a caveat and other orders. The caveat expired on Monday 16 April during the Easter break and the application for its extension was therefore urgent. Mr Mackey indicated that he was present for the defendant on notice and opposed the making of the order for extension. I directed that the matter stand in the list. Later in the morning it was further stood down to 2 pm."
- There is a contemporaneous note in my notebook which records what occurred concerning the matter after the luncheon adjournment as follows:
" Applon of Kenny
Castrission for applt
Mackey for Country Heights Australia.
Question of costs S/O to 18/4/01 at 10 am before me."Applt does not proceed & will not file summons.
4 Part 28 r 1 of the Supreme Court Rules 1970 provides as follows:
"Order before commencement of proceedings
1(1) In an urgent case, the Court may, on the application of a person who intends to commence proceedings -
...…
(aiii) make an order extending the operation of a caveat under:(aii) grant an injunction;
- (i) The Real Property Act 1900;
…...
to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.
(3) A person making an application under subrule (1) shall give an undertaking to the Court to file, within 14 days of determination of the application, an originating process commencing proceedings in respect of the subject matter of the application."…...
- It is quite true that Mr Mackey, appearing for Country Heights Australia Pty Limited, did not on the afternoon of 12 April 2001 require that the applicant be called on to give the undertaking referred to in Part 28 r 1(3), and equally true that I did not at that time make any such requirement of the applicant. However, Mr Mackey did indicate that, despite the withdrawal of the application and the announcement that a summons would not now be filed, he would be making an application for an order that costs against the applicant in respect of the court appearances on that day.
5 The question of costs having been stood over to today, Mr Castrission appears and says that the applicant was justified in announcing that he did not propose to file a summons and that he ought not now be required to do so and that the matter is not within Part 28 r 1(3) because of the early stage at which his client changed his mind and withdrew any application to the Court in relation to the caveat. However, I am of the view that this submission is not correct. This is a case in which the following occurred. A letter was written by Mr Castrission, on behalf of the applicant, announcing the intention to make the application and inviting the proposed defendants to be present in court if they desired. This, in the practice of this Court, does not convert the application from being an ex parte application to a contested application and it would have fallen to be determined on the hearing of the application whether it should continue as an ex parte application, or be treated as an application on notice and, if the former, what part the proposed defendants ought be allowed to play in it.
6 The practice of the Court has always been that it was appropriate for proposed defendants to be notified at the plaintiff's discretion of the making of an ex parte application and that they always had a right, if notified, to be present during the making of the application. The Court would not necessarily allow them to play any part in the application and the part, if any, which they might play has always been regarded as being in the discretion of the Court. The better course certainly in my view is, unless the matter is formally converted into a full interim hearing on notice, for the part played by the defendants to remain restricted, so that the application remains an ex parte application and it is plain afterwards from the point of view of both sides that the position of the proposed defendants remains that of persons against whom an ex parte application only has been made and any orders made have been made ex parte, as opposed to the different consequences which may result from the orders having been made after a contested hearing.
7 Mr Mackey's presence did not, therefore, transform the application from an ex parte application into something else but, although it was not proceeded with, I certainly draw the conclusion from the fact that the letter set out in [2] above was written, that the proposed defendants attended at court in response to and in accordance with that letter, and that when I inquired of Mr Moore of counsel the nature of his application, he informed me that it was for the extension of a caveat and perhaps other relief. Although it could not be dealt with at once and did not proceed subsequently, in my view there is no doubt that there was before the Court in this case on 12 April 2001 an application of a person, namely, Mr Kenny who then intended to commence proceedings of the requisite sort. In my view there was a determination of the application within the meaning of Part 28 r 1(3), albeit that determination was by the announcement during the afternoon by Mr Kenny's solicitor that the application was withdrawn and would not proceed. That that announcement was made in the terms that "the applicant does not proceed" is confirmatory of the fact that there was an application before the commencement of the proceedings before the Court that day and that Mr Kenny's role in the Court on that day was that of applicant.
8 The Court is not precluded by the fact that Mr Mackey did not in terms ask on the day that the undertaking in rule 1(3) be given to the Court. He certainly indicated that he did not propose to allow the matter to lie and intended to pursue the question of costs through appropriate processes, processes which it is clear upon reflection would need the existence of proceedings in which to make an order for costs. Equally the fact that the Court did not then require the undertaking to be given and honoured does not preclude it from now doing so.
9 The course that I now propose to follow is that I require John Paul Kenny (the plaintiff) to file on or before 26 April 2001 a summons naming as defendants Ebling Pty Limited and Country Heights Australia Pty Limited and such other defendants as he may be advised, returnable before me at 9.30 am on 10 May 2001.
10 Mr Castrission has sought to file in Court at once a summons on Mr Kenny's behalf that discharges the above requirement for the undertaking. I have made that summons returnable before me instanter and dispensed with the service of that summons. I note the undertaking by Mr Castrission to pay the filing fee in respect of the summons on or before 26 April 2001. Summons adjourned to 10 May 2001 at 9.30 am.
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