Millard Shaw Pty Ltd v Bernadette Byrnes - [2019] SADC 60

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
MILLARD SHAW PTY LTD v BERNADETTE BYRNES
[2019] SADC 60
Reasons for Decision of His Honour Judge O'Sullivan
3 June 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS
Caveat over property securing loans advanced pursuant to numerous loan agreements removed to allow settlement on the sale of the property to occur. Security interest claimed over the net proceeds. Net proceeds paid into court. Application by the defendant to access part of the monies paid into court and over which the plaintiff has a proprietary claim to fund her defence. Consideration of applicable principles and exercise of discretion in the interests of justice. Complex issues arising in imminent trial beyond the skills of a lay litigant.
Held: Threshold questions satisfied. Discretion exercised in favour of the defendant. Application granted.
District Court Civil Rules 2006 r 3, referred to.
Frédéric Marino v FM Capital Partners Ltd [2016] EWCA Civ 1301; Fitzgerald v Williams [1996] QB 657; Independent Trustee Services Ltd v GP Noble Trustees Ltd [2009] EWHC 161 (Ch); Ostrich Farming Corporation Limited v Ketchell EWCA Civ, unreported, 10 December 1997; United Mizrahi Bank Ltd v Doherty and Others [1998] 1 WLR 435; Milglade Pty Ltd v Harrison [2008] QSC 359; Eng Mee Yong v Letchumanan [1980] AC 331; Palmer v MacDonnell Shire Council [2011] NTCA 2; Cardile and Ors v LED Builders Pty Ltd (1999) 198 CLR 380; His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand and Anor v The Macedonian Orthodox Community Church St Petka Incorporated and Anor [2006] NSWCA 277; Farah Constructions Pty Ltd and Ors v Say-Dee Pty Ltd (2007) 230 CLR 89; Sundt Wrigley & Co. Ltd v Wrigley EWCA Civ, unreported, 23 June 1993, considered.

MILLARD SHAW PTY LTD v BERNADETTE BYRNES
[2019] SADC 60

On 13 May 2019, this Court made an order that upon settlement of a contract for sale of the land comprised in Certificate of Title Register Book Volume 5891 Folio 783 (‘Glenelg North Property’) made on 12 January 2019 between the defendant and Rosalie Grieve, the defendant pay the net proceeds of sale into court.
By second interlocutory application filed 17 May 2019, the defendant seeks an order that the sum of $52,340.79 standing in Court to the credit of this action be paid into the trust account of 1878 Elix Lawyers Pty Ltd for payment of the defendant’s legal fees and disbursements.
The trial in this matter was commenced on Wednesday 22 May 2019. On Friday 17 May 2019 I made the order sought in the defendant’s second interlocutory application and indicated I would publish my reasons subsequently. These are those reasons.
In support of its second interlocutory application the defendant reads the following documents.
1Affidavit of Bernadette Byrnes sworn 23 January 2019;[1]
2Affidavit of Olivia Catherine Byrnes sworn 25 March 2019;[2]
3Affidavit of David Matthew Elix sworn 22 March 2019;[3]
4Second affidavit of David Matthew Elix sworn 7 May 2019 (‘second Elix affidavit’); and
5Third Affidavit of Margaret Jankowiak sworn 12 March 2019.[4]
[1]   FDN 8.
[2]   FDN 43.
[3]   FDN 40.
[4]   FDN 28.
The Issues at Trial
In summary, the plaintiff alleges that it entered into four transactions in which it agreed to advance money to Adelaide Central Electrical Pty Ltd. In each of those four transactions the defendant is named as a guarantor. Those transactions are alleged to have occurred on:
·18 April 2016 (‘first loan agreement’);[5]
·18 May 2016 (‘invoice facility deed’);[6]
·8 February 2018 (‘February 2018 loan agreement’);[7] and
·8 June 2018 (‘June 2018 loan agreement’).[8]
[5] Third affidavit of Margaret Jankowiak sworn 12 March 2019, [30].
[6] Ibid [38].
[7] Ibid [41].
[8] Ibid [46].
Each of the transaction documents provides for security for the money advanced and sets out the borrower’s and each guarantor’s obligations to the plaintiff at any time. Clause 7.1 of each of the three loan agreements provides that each grantor (which term includes any one or more of the borrower or the guarantor)[9] unconditionally gives the plaintiff a security interest in the ‘Collateral’. The plaintiff alleges that the security provisions give the plaintiff security over all of the defendant’s present and after-acquired property.
[9] Ibid Exhibit MJ12, definition section cl 2.1.
In the invoice facility deed, the security is set out in clause 12 and is in similar terms to that in the loan agreements.[10]
[10] Ibid Exhibit MJ13.
In her defence, the defendant asserts that the signatures on the February 2018 loan agreement, the 8 June 2018 loan agreement and the invoice facility deed are not hers and that they are forgeries.
The plaintiff has obtained a report from a handwriting expert, however, the defendant has not. The defence will need to cross-examine the handwriting expert to be called by the plaintiff.
I am informed by Mr Ower QC, counsel for the defendant, that there are at least two witnesses; the defendant’s husband Mr Morphett, and a witness, Mr Allan, who have been subpoenaed to give evidence and may be hostile in the evidentiary sense, such that an application to declare them hostile may have to be made.
The Defendant’s Properties
The defendant has an interest in four residential properties which include the Glenelg North property, as well as properties at Somerton Park, Warradale and Hallett Cove. The plaintiff has lodged caveats over each of the properties consequent upon the security provisions referred to above. In order to allow settlement of the Glenelg North property to occur, the plaintiff consented to the caveat over that property being removed with the net proceeds of sale being paid into Court.
It is common ground between the parties that the total equity across the four properties is insufficient to discharge any potential liability to the plaintiff on the part of the defendant. It is also accepted for the purposes of this application that the plaintiff has an arguable case in relation to a proprietary interest in the equity across the four properties and the defendant has an arguable defence.
Relevant Principles
I note there is limited Australian authority and no South Australian authority that deals with a situation like this. There is no dispute between the parties as to what the authorities say.
In United Mizrahi Bank Ltd v Doherty and Others,[11] the defendants had their assets frozen by a worldwide Mareva injunction, subject to the ordinary proviso of allowing expenditure for reasonable legal expense. They applied for an order permitting them to apply the proceeds of sale of certain assets over which the plaintiff had a proprietary claim, in order to discharge past and future legal costs notwithstanding the plaintiff’s claim over those assets.
[11] [1998] 1 WLR 435.
In refusing the application, the Court at first instance referred to the decision of Sundt Wrigley & Co Ltd v Wrigley[12] and the observations of Sir Thomas Bingham MR who, when dealing with property over which a plaintiff alleges a proprietary interest said:[13]
In the proprietary case, however, the judgment is a more difficult one because in the plaintiff's contention the money on which the defendant wishes to rely to finance his litigation is not the defendant's money at all but represents money which is held on trust for the plaintiff. That, of course, gives rise to an obvious risk of injustice if the plaintiff, successful at the end of the day, finds that his own money has been used to finance an unsuccessful defence. As these authorities make plain, a careful and anxious judgment has to be made in a case where a proprietary claim is advanced by the plaintiff as to whether the injustice of permitting the use of the funds by the defendant is out-weighed by the possible injustice to the defendant if he is denied the opportunity of advancing what may of course turn out to be a successful defence.
The question which really arises is, as I think was accepted in argument in this Court, the following: is there so great a risk of injustice to the defendant if he is not represented as to justify recourse to enjoined funds which may be shown to be the plaintiff's funds held by the defendant as trustee or constructive trustee? The initial judgment on the appropriate answer to that question of course is one for the discretion of the judge at first instance… The consequence is that the Court of Appeal will be slow to interfere and will only do so on recognised grounds.
[12] EWCA Civ, unreported, 23 June 1993.
[13] Ibid 5.
In Frédéric Marino v FM Capital Partners Ltd[14] the UK Court of Appeal dismissed an appeal from a Justice of the High Court who had refused an application by the appellant to have the terms of a freezing order made against him varied so that he could have recourse to certain funds, which the respondent claimed as its property in equity, for the purpose of paying the appellant’s reasonable living and legal expenses.
[14] [2016] EWCA Civ 1301.
The original freezing order included the usual proviso to allow him to spend reasonable sums on living expenses and legal expenses out of his general assets, excluding the assets that were the subject of the respondent’s claim. Having exhausted his general assets, the appellant applied to vary the order as described above. He did so on the basis that he would undertake to replace the funds taken out of the assets in question using proceeds of sale of other shares and his share of the proceeds of a sale of a house once that occurred.
The appellant accepted that the respondent had a good, arguable case that it was the owner of the funds and the respondent accepted that the appellant had an arguable defence against its claim.
The Court identified the authorities which provide guidance in a situation such as this as Sundt Wrigley & Co. Ltd v Wrigley,[15] Fitzgerald v Williams,[16] and Ostrich Farming Corporation Limited v Ketchell[17] and observed that the ordinary position was that a defendant who had resources of its own which were not affected by a good arguable proprietary claim that they are the claimant’s property, should be required to use those unaffected resources to finance both defence and living expenses.[18]
[15]   EWCA Civ, unreported, 23 June 1993.
[16] [1996] QB 657.
[17]   EWCA Civ, unreported, 10 December 1997.
[18]   Frédéric Marino v FM Capital Partners Ltd [2016] EWCA Civ 1301, [18].
Insofar as recourse to the assets that were the subject of the proprietary claim, the Court continued:[19]
A more difficult situation may arise if the claimant has a good arguable proprietary claim in relation to funds in the defendant's hands and the defendant has no, or inadequate, other assets of his own unaffected by such proprietary claim from which he can meet his living and legal expenses. In that case, the court will have to weigh up the balance of justice to decide whether the defendant should then be permitted to have recourse to the proprietary assets. As Sir Thomas Bingham MR put it in Sundt Wrigley, in this situation "a careful and anxious judgment has to be made in a case where a proprietary claim is advanced by the plaintiff as to whether the injustice of permitting the use of the funds held by the defendant is out-weighed by the possible injustice to the defendant if he is denied the opportunity of advancing what may in course turn out to be a successful defence." Under the Civil Procedure Rules which came into force in 1999, the court should examine this question in the light of the overriding objective to deal with cases justly and at proportionate cost: CPR Part 1. In deciding where the balance of justice falls at this stage, it may be relevant to consider whether the defendant is willing to undertake to replenish the funds taken from the proprietary assets at a later stage out of non-proprietary assets which might thereafter become available to him, as was done in Armco Inc. v Donohue, Jersey Court of Appeal, unrep. 24 September 1998.
[19] Ibid [19].
In the above passage, the Court of Appeal refers to the Civil Procedure Rules, which have the overriding objective of dealing with cases justly and at a proportionate cost. To that extent, those objectives align with those set out in District Court Civil Rule 3.[20]
[20] District Court Civil Rules 2006, r 3.
The Court of Appeal identified what is, in effect, a two-stage test with the first stage comprising threshold issues and the second stage calling for the exercise of a discretion.
As to the threshold issues, having referred to the judgment of Sir Thomas Bingham MR in Fitzgerald v Williams,[21] the Court of Appeal reiterated that the onus is on the defendant to establish that the defendant has no assets unaffected by the proprietary claims on which they can draw to meet their living and legal expenses. Only if the first occurs does the second stage arise. That stage is where the court has to make a ‘careful and anxious judgment’ in exercising its discretion after considering the balance of justice.
[21] [1996] QB 657.
The reference to ‘careful and anxious judgment’ comes from the earlier decision of the Master of the Rolls, Sir Thomas Bingham MR in Sundt Wrigley & Co. Ltd v Wrigley to which I have referred.
In considering the matter, the Court of Appeal cited with approval and applied the decision of Lewison J (as he then was) in Independent Trustee Services Ltd v GP Noble Trustees Ltd[22] where his Honour summarised the two-stage approach to which I have referred by setting out four questions which should be addressed in a circumstance where there is an application by a defendant to use assets which are the subject of a proprietary claim by the plaintiff to fund the defendant’s defence to that claim. Those four questions are as follows:
1.   Does the claimant have an arguable propriety claim to the funds in issue?
2.   If yes, does the defendant have arguable grounds for denying that claim?
3.   If yes, has the defendant demonstrated that without the release of the funds in issue he cannot effectively defend the proceedings (or, it may be added, meet his legitimate living expenses)?
4.   If yes, where does the balance of justice lie as between, on the one hand, permitting the defendant to expend funds which might belong to the claimant and, on the other hand, refusing to allow the defendant to expend funds which might belong to it?
Australian Authorities
[22] [2009] EWHC 161 (Ch).
This matter involves the removal of a caveat and the payment of the net proceeds of sale into court. The authorities to which I have made reference concern injunctions freezing assets which are the subject of proprietary claims by the plaintiff.
In Australia, in the context of a caveat, Chesterman J in Milglade Pty Ltd v Harrison observed: [23]
A caveat itself is usually regarded as a form of interim, statutory, injunction. See Eng Mee Yong v Letchumanan [1980] AC 331 in which Lord Diplock, speaking for the Privy Council (337):
‘... noted the analogy between the effect of a caveat and that of an interlocutory injunction obtained by the plaintiff in an action for specific performance of a contract for the sale of land ... . The Court’s power to grant an interlocutory injunction ... is discretionary. It may be granted in all cases in which it appears ... to be just and convenient to do so. ... The guiding principle in granting an interlocutory injunction is the balance of convenience ...’.
[23] [2008] QSC 359, [22].
His Honour referred with approval to the principle expressed in United Mizrahi Bank Ltd,[24] to which I have referred above, and continued:[25]
In such cases ‘a careful and anxious judgment has to be made ... as to whether the injustice of permitting the use of the funds by the defendant is outweighed by the possible injustice to the defendant ... if he is denied the opportunity of advancing what may ... turn out to be a successful defence.’
[24] [1998] 1 WLR 435, 439.
[25] Milglade Pty Ltd v Harrison [2008] QSC 359, [60].
Applying those principles, Chesterman J granted the application.[26]
[26] Ibid [61].
In Palmer v MacDonnell Shire Council,[27] the Court of Appeal of the Northern Territory considered an application for leave to appeal from an interlocutory decision of a single judge refusing the applicant’s application to access trust monies for the payment of legal fees for an intended challenge to legislation.
[27] [2011] NTCA 2.
In those proceedings, the plaintiff alleged that it was the sole beneficial owner of funds in a trust. At first instance, the Court was satisfied that the plaintiff had a prima facie case sufficient to justify the granting of an interlocutory injunction and that the balance of convenience heavily favoured the plaintiff. The Court granted an interlocutory injunction restraining the respondent from paying any monies out of the trust except as approved by the Court.
A subsequent application by the defendants to access those trust monies to pay legal fees was refused. The application for leave to appeal was made by the defendants against that refusal.
On appeal, the defendants argued that the Court should have applied the decision in Cardile and Ors v LED Builders.[28]
[28] (1999) 198 CLR 380.
The Court of Appeal rejected the argument on the basis that Cardile dealt with a Mareva injunction which was based on an entirely different juridical basis from an injunction to protect property in which an applicant has at least a prima facie case for claiming a proprietary interest.[29]
[29] Palmer v MacDonnell Shire Council [2011] NTCA 2, [32].
The Court of Appeal followed the decision of the New South Wales Court of Appeal in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand and Anor v The Macedonian Orthodox Community Church St Petka Incorporated and Anor.[30]
[30] [2006] NSWCA 277.
In that matter the New South Wales Court of Appeal observed that if the property in question is to be used for funding the litigation then the litigation, insofar as it related to that property, will be futile as trust property will have been used to fund an unsuccessful defence. On the other hand, if the association was not entitled to have recourse to the property in question, there was a real question as to its ability to continue to fund its defence at the proceedings.[31]
[31] Ibid [20].
In allowing the appeal, the New South Wales Court of Appeal endorsed the need for a balancing exercise to resolve the dilemma and that the Court needed to be attentive to protection of trust property.[32]
[32] Ibid [84] – [85].
Metropolitan Petar itself was the subject of a successful appeal to the High Court in which the Court held that in that particular case, the appellant association had the power to apply to the Court for an opinion, advice or direction on any question concerning the management or administration of the trust property or the interpretation of the trust instrument. Allied with that question was the right of a trustee to be indemnified from trust assets.
On that basis, the High Court held that the Court at first instance had not erred in the balancing exercise required by the exercise of the discretion and allowed the appeal.
Metropolitan Petar must be seen against the background that the Court was dealing with trust assets over which there was no dispute as to the beneficial ownership and where the issue was whether those trust assets could be accessed by the trustees in defending an action for breach of trust.

Palmer deals with different considerations to the facts of this matter and I distinguish the case on that basis.
Application of the Principles
In Farah Constructions Pty Ltd and Ors v Say-Dee Pty Ltd the High Court said:[33]
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law…(references omitted).
[33] (2007) 230 CLR 89, [135].
Of the Australian authorities referred to, the decision of Chesterman J in Milglade Pty Ltd v Harrison[34] in which his Honour applied the principles in United Mizrahi Bank Ltd is the most relevant and I apply those principles.
[34] [2008] QSC 359.
As to the process of applying those principles, although United Mizrahi Bank was not referred to by the Court of Appeal in Marino, the single judge in Chancery in United Mizrahi Bank referred to and relied upon Sundt Wrigley, which was also relied upon by the Court of Appeal in Marino. I see no distinction between the principles applied in both United Mizrahi Bank and Marino, with both courts applying Sundt Wrigley.
In Marino the Court of Appeal applied those principles through the four questions set out by Lewison J (as he then was) in Independent Trustee Services Ltd v GP Noble Trustees Ltd.[35] I adopt the same process which involves three threshold questions and a fourth discretionary question which is the balance of justice.
First Two Threshold Questions
[35] [2009] EWHC 161 (Ch).
As to the first two questions identified by Lewison J, the defendant accepts the plaintiff has an arguable proprietary claim to the funds in question and the plaintiff accepts that the defendant has arguable grounds for denying that claim.
Third Threshold Question
Given the answers of ‘yes’ to the first two questions, the third question is whether the defendant has demonstrated that without the release of funds in issue, the defendant cannot effectively defend the proceedings?
Inherent in this question is the issue of whether the defendant has access to funds or assets which are not the subject of a proprietary claim.
The defendant’s solicitor, Mr Elix, deposes on information and belief that without the release of funds, the defendant will not be able to pay her outstanding legal costs nor the costs of the trial of this matter.[36] Mr Ower QC informed the Court that without the release of funds his instructing solicitor would not be able to continue to act. Although from the bar table, such a conclusion flows as a matter of logic from what Mr Elix deposes to on information and belief.
[36] Second Elix affidavit, [7].
Mr Thomas of counsel, who appeared for the plaintiff, submitted that the financial information set out in the second Elix affidavit raised more questions than it answered about the defendant’s finances and financial resources. There is force in that submission in that there are a number of assertions in the second Elix affidavit without supporting documentation and, in some cases, the documentation provided is inadequate.
In order to make good a proposition that a party does not have sufficient financial resources to defend the proceedings without recourse to the assets or funds the subject of the proprietary claim, it will be necessary for that party to produce material sufficient to satisfy the court that that is the case. Given the process is interlocutory, that does not mean that there needs to be a full enquiry into the defendant’s assets but in my view there must be material sufficient to satisfy a court.
Whereas there are a number of complaints that might be made about the adequacy of the financial information and disclosure of supporting material in this matter, I consider the defendant in this particular matter has provided sufficient material to satisfy this third threshold question.
Fourth Question – the exercise of a discretion
Given that the three threshold questions have been answered ‘yes’, the fourth question involves a balancing exercise and the exercise of a discretion. In particular, the fourth question in a situation such as this is where does the balance of justice lie? That was explained by Sir Thomas Bingham MR in Sundt Wrigley as:[37]
…whether the injustice of permitting the use of the funds by the defendant is out-weighed by the possible injustice to the defendant if he is denied the opportunity of advancing what may of course turn out to be a successful defence.
The question which really arises is, as I think was accepted in argument in this Court, the following: is there so great a risk of injustice to the defendant if he is not represented as to justify recourse to enjoined funds which may be shown to be the plaintiff's funds…
[37] Sundt Wrigley & Co. Ltd v Wrigley EWCA Civ, unreported, 23 June 1993, 5.
As I have noted, it was the exercise of this discretion to which Sir Thomas Bingham MR observed as requiring ‘a careful and anxious judgment’.[38]
[38] United Mizrahi Bank Ltd v Doherty and Others [1998] 1 WLR 435, 439.
In my view, the type of considerations that arise in a situation such as this when considering the balance of justice are, without limitation:
1The extent of the proprietary interest claimed, that is, is the proprietary interest claimed over a limited number of assets or a much wider field of assets such that the defendant in effect has no or limited assets which are not the subject of a proprietary claim and available to fund a defence.
2Whether the need for the defendant to access the assets in question arises from a temporary liquidity problem and the defendant undertakes to replace the funds accessed by recourse to unaffected assets that can be realised. For example, the sale of real estate.
3The complexity of the issues in the ligitation, both legal and factual; and
4Whether there are any features particular to the defendant which may impact on the defendant’s ability to mount a legal defence, other than a lack of legal training simpliciter.
Extent of the Proprietary Interest
The security provisions to which I have referred in each of the financial instruments are of wide import. Clause 7.1 of each of the loan agreements is in the following terms:[39]
7 Security
7.1 As security for payment of the Money Owed and all of the Borrower’s and the Guarantor’s obligations to the Lender at any time each Grantor unconditionally gives the Lender a security interest in the Collateral which is personal property covered by the PPSA and a fixed charge over all other Collateral such as all estates and interests in land and all interests in fixtures. Accordingly, the Lender has a Security Interest in all of the Grantors present and after-acquired property.
[39] See Third affidavit of Margaret Jankowiak sworn 12 March 2019, Exhibits MJ12, MJ14 and MJ16.
Collateral is defined in the following terms:
‘Collateral’ means all of the Grantor’s present and after-acquired property, assets and undertaking wherever it is situated; all rights and interests conferred by the PPSA; and all property over which the Grantor can give a Security Interest.
Security Interest is also defined:
‘Security Interest’ means any:
(a) security interest (as defined in the PPSA);
(b) security for payment of money, performance of obligations or a protection against default (including a mortgage, bill of sale, charge, lien, pledge, trust, power, right of set off, assignment of income and garnishee order); and
(c) right, preferential interest or arrangement of any kind giving a person priority or preference over claims of other persons with respect to any property, asset or right. It includes any agreement to create any of them or allow any of them to exist.
On the basis of the definitions of ‘Security’, ‘Collateral’ and ‘Security Interest’, on one view, any of the defendant’s property is property over which the plaintiff may claim a proprietary interest so that there are no unaffected assets. If that is right (and I express no view) then the defendant is left with no unaffected assets to draw upon. Ordinarily, where the extent of the proprietary interest is so great as to deprive a defendant from access to any funds for the purpose of defending a claim, depending on the circumstances, that may weigh in favour of the defendant when determining where the balance of justice lies.
Undertaking to replace funds accessed from the proceeds of unaffected assets
No such undertaking has been provided in this case. It is apparent from the discussion above in relation to the extent of the security interest, such an undertaking would on one view, in this particular case, be meaningless. Ordinarily, such an undertaking, if given, would be of significant weight.
Issues in the litigation
Although the issues in this matter are straightforward, in the sense that the plaintiff claims pursuant to certain financial instruments as set out above and the defendant defends that claim on the basis that her signatures are forgeries. The resolution of that issue is nonetheless complex because it will involve the cross-examination of a forensic handwriting expert. That is not something which is ordinarily within the abilities of a lay litigant. An added layer of complexity is that the defendant may be faced with a hostile witness or witnesses with the need to apply to have a witness declared hostile. That is also something outside the abilities of a lay litigant. The complexity of issues and, in some cases, the sheer volume of material are factors which will vary in the weight to be afforded to them in determining where the balance of justice lies.
Features affecting the defendant’s ability to represent him/her/itself
There is a further consideration in this particular matter in that by order dated 29 March 2019, as a result of ill health on the part of the defendant, the Court appointed the defendant’s daughter, Olivia Catherine Byrnes, as her litigation guardian. The weight attributable to whether the defendant will be able to present a legal defence will vary but in this case I consider it an important consideration.
Conclusion
In my view, given the complexity of the issues that are likely to arise in this matter, the extent of the proprietary interest that is claimed and the defendant’s health, the defendant has demonstrated that without the release of the funds in issue, the defendant cannot advance a defence to the proceedings. Consequently, the risk of injustice to the defendant if she is not represented in this case is such as to justify recourse to the funds in question and outweighs the potential injustice to the plaintiff, notwithstanding the funds may be shown ultimately to be the plaintiff’s funds.
In the exercise of my discretion, I allow the defendant’s application.
The order is as follows:
1The amount of $52,340.79 standing in Court to the credit of this action be paid to 1878 Elix Lawyers PL Trust Account for payment of the Defendant’s legal fees and disbursements.