Seargeant v Nolan

[1995] FCA 233

FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NX 191 of 1993
GENERAL DIVISION )

RE: JEREMY WILLIAM MARDEN NOLAN

Debtor

BETWEEN:

DAVID LLEWELLYN SEARGEANT

Applicant

AND:

JEREMY WILLIAM MARDEN NOLAN

Respondent

CORAM: SACKVILLE J.

PLACE: SYDNEY

DATE: 4 MAY 1995

CORRIGENDUM

References on page 1 of Ex Tempore Judgments dated 4 April 1995 and 6 April 1995 to "David Llewellyn Sergeant" (the Applicant), should read "David Llewellyn Seargeant".

Clayton Noble,

Associate to Justice Sackville.

Dated: 4 May, 1995

;-i , y;

JUDGMENT No. ...:!,.Y... e..e.q.e

FEDERAL COURT OF AUSTRALIA	1
m SOUTH WALES DISTRICT REGISTRY	) N o NX 191 of 1993
GENERAL DIVISION	1

RE: JEREMY WILLIAM MARDEN NOLAN

Debtor

BETWEEN:

DAVID LLEWELLYN SERGEANT

Applicant

AND :

JEREMY WILLIAM MARDEN NOLAN

Respondent

CORAM:	SACKVILLE	J .
PLACE :	SYDNEY

DATE: , THURSDAY, 6 APRIL, 1995

H I S HONOUR: In this matter, Mr Durston has today appeared on behalf of Ms Coreen Ashman, who is not a party to these proceedings. Mr Durston has offered, on behalf of Ms Ashman, to provide an undertaking to the court in the following form that has been handed up to me:

"In consideration of the Court granting a stay of all

declarations and orders in suit No. NX 191 of 1993 between my husband Jeremy William Marden Nolan as respondent and David Llewellyn Seargeant as applicant,

I COREEN ASHMAN, being the registered proprietor of

the whole of the land known as and situated at 12 Mill Hill Road, Bondi Junction in the State of New South Wales, hereby Undertake to the Court that until final determination of my husband's appeal to the Court being suit no. G209 £0 1992, I will not cause or procure the disposal or transfer of 12 Mill Hill Road, Bondi Junction in the State of New South Wales.

That form of undertaking is expressed to be granted until final determination of the appeal of this matter. However, M r Durston

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has indicated to me that the limit of the undertaking that he is instructed to provide is for a period of 21 days. He has indicated that the purpose of this limitation is to enable Ms

Ashman to obtain independent advice concerning her position.

In my view it is entirely appropriate that Ms Ashman be afforded

this opportunity. In any event, it is of course a matter for Ms Ashman as to whether she is prepared to offer an undertaking

to the court in proceedings to which she is not a party.

None of the parties who appear today has submitted that I do not have power to accept the undertaking proffered on behalf of

Ms Ashman. My attention has been directed to Order 35, rule 11

of the Federal Court Rules which appears to contemplate that a person, whether or not a party, may give an undertaking to the court to do or refrain from doing a particular act. Since no party has submitted that I lack the power to accept the undertaking, I propose to do so, but to limit that undertaking to a period of 21 days in accordance with the instructions that Mr Durston has communicated to me.

When the matter was last before the Court, I stated that certain

undertakings should be proffered before I would grant the stay of declarations and orders sought by Mr Harper on Mr Nolan's

behalf. Mr Harper informed me at that time that those undertakings would be proffered. I have now received those undertakings in written form. I am told by Mr Maxwell, who now

appears on Mr Nolan's behalf, that although the written

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undertakings are expressed to be "in consideration of" the court granting a stay until final determination, he has instructions to give those undertakings even if the stay is granted, in the first instance, for a period of only 21 days.

In these circumstances, I propose to grant a stay of the

declarations of orders made by me on 14 March 1995 in proceedings NX 191 of 1993 until 5 pm on Friday, 28 April 1995. I do so upon the basis of the undertakings given to the court by Mr Nolan. The document expressing Mr Nolan's undertakings is not signed by him, but his solicitor has provided the undertaking on his behalf and I shall sign and initial the document and place that with the court papers. I note that the undertakings are operative notwithstanding that the stay I propose to grant is for a period of 22 days only.

I note also that Ms Ashman, through her counsel Mr Durston, has

provided an undertaking in the terms of the document that has been handed to me. I shall also initial and date that document. That undertaking is operative for the same period, that is, until

5.00 pm on 28 April 1995. I note that this is a period of 22

days rather than the 21 days referred to in the document. Mr Durston has informed me that his client does not object to the undertaking operating for that period.

The result of those undertakings having been given to the Court is that there will be a stay of all declarations and orders made by me in the proceedings on 14 March 1995 until 5.00 pm on 28

April 1995.

I shall relist the matter at 9.30am on 27 April 1995, that is,

three weeks from today. At that time, any further undertakings if any that Ms Ashman is prepared to proffer can be dealt with.

At that time I shall also resolve the question of whether a stay should be granted pending the determination of the appeal in this matter.

That leaves only the question of the application by the applicant for security of costs. That application is limited now to the

sum of $5,000. I shall reserve my decision on that and advise

the respective solicitors as to when a determination on that

issue is available. In any event it will before 2 7 April 1995.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 6 ~ ~ r i i , 1995

Heard:	6 April, 1995
Place:	Sydney

Decision: 6 April, 1995

Appearances:	Mr A. Armstrong, Solicitor of Holmes &	Bevan, appeared for the applicant.
Mr R. Harper, instructed by Garland Hawthorn Brahe, appeared for the respondent.
Mr D. J. Durston intervened on behalf of Ms Coreen Ashman.