NSW Caselaw
New South Wales Supreme Court
CITATION : Kenny v Ebling Pty Ltd [2001] NSWSC 392 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2266/01 HEARING DATE(S) : 12 & 18 April 2001 JUDGMENT DATE : 18 April 2001
John Paul Kenny (P) PARTIES : Ebling Pty Limited (D1) Country Heights Australia Pty Limited (D2) JUDGMENT OF : Hamilton J
J Castrission, Solicitor (P) COUNSEL : No appearance (D1) G J Mackey, Solicitor (D2) Castrission & Co (P) SOLICITORS : No appearance (D1) Tzovaras Legal (D2) CATCHWORDS : PROCEDURE [106] - Practice under Supreme Court Rules - Interim preservation - Party seeking ex parte extension of caveat and injunction - Proposed defendant attends court on notice - Applicant decides not to proceed with application and announces he will withdraw and not file summons - Proposed defendant seeks costs - Whether applicant may be required by Court to file summons. LEGISLATION CITED : Supreme Court Rules 1970 Part 28 r 1 DECISION : Applicant required to file summons.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
HAMILTON J
WEDNESDAY, 18 APRIL 2001
2266/01 JOHN PAUL KENNY v EBLING PTY LIMITED & ANOR
JUDGMENT
1 HIS HONOUR: This is a matter which followed a somewhat unusual course. The proceedings were not at the time of the events to which I shall advert commenced, nor have they even now been commenced. The proposed plaintiff in the proceedings is one John Paul Kenny and one of the proposed defendants is Country Heights Australia Pty Limited, although it well may be that the plaintiff intended to join other defendants in the summons which, at one stage, it undoubtedly intended to file. 2 It is shown by the affidavit of R G Muddle sworn 18 April 2001 used on the application now before me that Mr Castrission, who is Mr Kenny's solicitor, wrote on 11 April 2001 to Tzovaras Legal, the proposed defendant's solicitors, a letter as follows: - " JOHN PAUL KENNY v EBLING PTY LTD and COUNTRY HEIGHTS AUSTRALIA PTY LTD CERTIFICATE OF TITLE FOLIO IDENTIFIER 3/625502 MORTGAGE BY LIKER PTY LTD.
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