Lawjag Pty Ltd & Anor v McKenzie

[2007] NSWSC 168

CITATION:	Lawjag Pty Ltd & Anor v McKenzie [2007] NSWSC 168
HEARING DATE(S):	01/03/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	1 March 2007
DECISION:	Adjournment granted subject to order to pay costs thrown away.
CATCHWORDS:	PROCEDURE - Miscellaneous Procedural Matters - Adjournments - Whether an application for an asset preservation order over the proceeds of sale of a property should be adjourned at the instance of the applicant upon the defendant’s late service of an affidavit annexing three agreements evidencing the property was an asset of the defendant - The agreements were executed by the sole director of the plaintiff companies - (No principles involved)
PARTIES:	Lawjag Pty Ltd - 1st Plaintiff Spring Cove Management Pty Ltd (ACN 095 052 798) as Trustee of the Spring Cove Trust - 2nd Plaintiff Leah Gail McKenzie - Defendant
FILE NUMBER(S):	SC 6229/06
COUNSEL:	Ms C Adamson SC/ Ms A Seward - Plaintiff Ms P Ryan/ Ms A Bartlett - Defendant
SOLICITORS:	Deutsch Partners Lawyers Pty Ltd Watts McCray Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 1 MARCH 2007

6229/06 LAWJAG PTY LTD & ANOR v LEAH GAIL MCKENZIE

EX TEMPORE JUDGMENT

1 A notice of motion was filed in court this morning, it had previously been served on the defendant. It sought an asset preservation order with respect to the proceeds of sale of a property in Queensland referred to as the Santai apartment.

2 An application such as that is a serious one and the defendant has been working night and day, as her counsel described it, in preparing a defence to the application.

3 On 21 February 2007 the solicitors for the plaintiff wrote to the solicitors for the defendant seeking documents described in this way:

“If the defendant contends, in respect of any of the claims, that there are any inter partes agreements or documents (or, alternatively, agreements between Mr Bonnell and the defendant) that govern or impact upon our respective client's rights in relation to matters the subject of the claims, or which otherwise will be put forward by way of answer to our client's claims, would you please identify any such agreements and documents and provide us with copies of same by facsimile transmission or email.”

4 I digress to indicate that Mr Bonnell is the sole director of both plaintiff companies.

5 There was no immediate response to that letter but last night an affidavit affirmed by the defendant, which I gave leave to file today, was served on the plaintiffs’ solicitors. That affidavit annexed three agreements covering some 50 pages. The first agreement was executed in February 2004, it listed the Santai Apartment as an asset of the defendant. The other two agreements were executed in November 2001. Each agreement was executed by Mr Bonnell.

6 The documents answer the description, albeit a broad description, in the letter of 21 February 2007 and they clearly impact upon the claim made by the second plaintiff against the defendant that she holds the Santai apartment on a constructive or resulting trust or subject to an equitable charge in its favour.

7 In light of the service of the agreements on the plaintiffs’ solicitors last night, Ms Adamson SC, who with Ms Seward appears for the plaintiffs, sought an adjournment of the notice of motion to next Thursday before the Registrar.

8 Ms Ryan, who with Ms Bartlett appears for the defendant, opposes the adjournment application. She says that the urgency that led to the application for an asset protection order with respect to the proceeds of sale of the Santai apartment appears to have dissipated by the application for an adjournment until Thursday of next week.

9 Ms Ryan submits that the letter of 21 February 2007 was an attempt by the plaintiffs to ascertain the defence to be raised by her client. The defence is to be served by 15 March 2007. The agreements executed by Mr Bonnell were within his knowledge and Ms Ryan submits that the application was made by the plaintiffs as no more than a device to put the defendant to cost and effort.

10 In my view, the three agreements having now emerged, that clearly have an impact upon the substantive proceedings and an impact upon the notice of motion, the proper course is to accede to the application for an adjournment to enable the plaintiffs to assess their position. I do not think, however, that the adjournment should be so long as to Thursday of next week and I propose to make an order that the matter stand over before the Registrar at 9.30 a.m. on Tuesday of next week. The application must be at the cost of the plaintiffs and I order that the plaintiffs pay the defendant's costs thrown away by the adjournment.

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