COHEN v McWILLIAM [1995] NSWCA 82

COHEN v McWILLIAM

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 15 December 1995

[1995] NSWCA 82

Priestley JA. On Tuesday 12 December 1995 the court handed down judgment and orders in an appeal by Mrs Cohen against a refusal by a first instance Judge to allow an amendment to her defence in proceedings in the Equity Division. Following the refusal at first instance to permit the amendment judgment had been entered against Mrs Cohen.

Pending the hearing of the appeal against the refusal to allow her to amend her defence she had given an undertaking that she would not deal with a property at Lindfield in which she lives; that property being unencumbered. The undertaking was given pending the determination of her appeal. A further undertaking was included in the written undertaking which was handed to the judgment creditor's solicitors concerning depositing of $15,000 with her own solicitors pending the disposal of her appeal.

In the course of the arguing of the appeal reference was made to the existence of this undertaking. What was said left the Court under the impression that no application was being made by the respondents to the appeal concerning the continuance of the undertaking or undertakings in the event that Mrs Cohen succeeded in her appeal and as a result Sheller JA saidin his reasons, after noting what I have already said, that the respondents to the appeal made no application to the Court for security and accordingly order three of the Court's orders was made without condition. As soon as that order was made known the solicitor for the respondents applied to the Court, in effect, raising the matter of security plainly and as a result the Court, which was not constituted in the same way as the Court that had heard the appeal, stayed the Court's orders for seven days.