Hillig v Darkinjung Pty Limited [2006] NSWSC 767

New South Wales Supreme Court

CITATION : Hillig v Darkinjung Pty Limited [2006] NSWSC 767

HEARING DATE(S) : 28/07/06

JUDGMENT DATE : 1 August 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Application stood over for formulation of orders: see paragraph 33

CATCHWORDS : PROCEDURE - undertakings to this court - claim by plaintiff that funds constituting defendants' sole assets held on trust for plaintiff - one defendant a trustee - consensual regime under which defendants undertake to court not to deal with such funds except by applying up to specified amount in paying expenses of proceedings - defendants seek increase in amount available for legal expenses - whether court may vary party's undertaking - whether court should discharge undertaking - need for opportunities for defendant trustee to seek judicial advice and for plaintiff to seek Mareva relief - defendants seek mandatory order that their bank pay cheques regularly drawn and presented up to certain amount - whether bank may be regarded as having notice of trust as distinct from undetermined (and unpredictable) claim

LEGISLATION CITED : Aboriginal Land Rights Act 1983 Trustee Act, s.63

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Carl Zeiss Stiftung v Herbert Smith & Co [1969] 2 Ch 276 CASES CITED : Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Gray v Johnston (1868) LR 3 App Cas 1 Macedonian Orthodox Community Church St Petka Inc v His Eminence Peter the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand [2006] NSWCA 160 Metropolitan Local Aboriginal Land Council v Metropolitan Aboriginal Association Inc [2003] NSWSC 104