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. Today is Friday of the same week in which that occurred and the respondents to the appeal, as claimants in a Notice of Motion, have asked that before order three is carried out the words 'Upon condition that she give an undertaking to the Court to the effect of the draft contained in the schedule' should be inserted and then by adding to the orders a schedule in terms set out in the Notice of Motion. When this Notice of Motion came on for hearing before me Mr Kennedy, Mrs Cohen's solicitor, resisted the application. His client's position was that the undertaking had been given until the determination of the appeal. They were the words used in regard to the undertaking concerning the home. The second undertaking was expressed to be 'pending the disposal of my appeal'. They probably went to pretty much the same thing. Mr Kennedy said that the undertaking had now been fulfilled, it had run its course, no clear application had been made to the Court at the appropriate time for the kind of order now sought and that since the orders had been made in the form they had been made there was no reason why there should be any alteration to them. He added that his client was in a financial position where there was no risk of her not being able to meet any judgment which might eventually be entered against her. 2 UNREPORTED JUDGMENTS The case for the other side was, in effect, that in asking for the amendment to the defence although Mrs Cohen may not herself have been atfault for the position that had arisen, nevertheless, her side of the record was; she had been asking for a concession from the trial Judge, and she should be in no better position now. Broadly speaking my own reaction to this is that it would be appropriate for Mrs Cohen to be put in the position that she should have been put in at the time when the application for an amendment to the defence was made. That position, in my opinion, should have been that she give security as a condition of being allowed to defend at the stage when she applied for leave to amend, a thought that is to some extent borne out by the fact that she was prepared to give security pending the determination of the appeal. The orders have not yet been entered and there is no formal difficulty in amending them in the way that is sought. I have indicated that I would not be prepared to require the undertaking to be precisely in the form in which it appears in the Notice of Motion. The words I would insert in the undertaking set out in the Notice of Motion are, after the word 'Not' in the fourth line of the undertaking set out in the schedule to the Notice of Motion the words 'Without first obtaining the leave of a Judge of the Equity Division'; those words occurring before the words 'Sell' in that line. In the course of discussion today I indicated to the parties that one reason for framing the undertaking in that way is that if some occasion does arise for Mrs Cohen to wish to deal with the property, upon her giving notice of that first to the solicitors for the claimants, it may well be possible for agreement to be reached upon the way in which the undertaking is to be varied, in which case a consent order could be filed, the expense of an application to a Court thus being avoided. If agreement can not be reached then the application to the Court will have to proceed. Subject to hearing the parties on costs I will make the orders as asked in the Notice of Motion noting that the schedule has been amended in myhand in the original Notice of Motion and initialled by me for identification's sake in the terms that I read out a little earlier. On the matter of costs my mind has fluctuated. The claimants today, in my view, have been responsible for the application having to be brought today. As I said a few moments ago they partly made the application at the right time but not sufficiently and because of the fact they had, as it were, got the application partly into view I was thinking I might not order them to pay the whole of the costs of this application. However, to make the sort of order that I mentioned a little earlier seems to me only to complicate matters in regard to eventual costs orders. Simply to make the costs of today part of the costs of the appeal which have been awarded to Mrs Cohen seems to me to be far the simplest way to deal with it and to be, in a substantial sense, fair in that it was the claimants rather than Mrs Cohen's side who were responsible for this application having to be made today. The costs order I make is that the costs of today's application are to be part of the costs of the appeal which the respondents are to pay, but in respect of which if they are qualified they should have a certificate under the Suitors Fund Act. Orders accordingly.