Lym International Pty Limited v Chen [2010] NSWSC 875

New South Wales Supreme Court

CITATION : Lym International Pty Limited v Chen [2010] NSWSC 875

HEARING DATE(S) : 23 July 2010

JUDGMENT DATE : 23 July 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 23 July 2010

1. Make order in para 1(A) of the notice of motion filed on 16 June 2010 adding after the words "first plaintiff" at the end of the substituted order four "but not so as to interfere with the completion of any contract for sale of a Unit entered into by the second defendant or any receiver appointed by the second defendant." DECISION : Refuse order 1(C) in the notice of motion. The plaintiffs do not press for order 1(B). 2. Order that the first defendant pay the second defendant's costs of the notice of motion filed 16 June 2010. 3. As between the plaintiff and the first defendant, order that the costs of the notice of motion be the plaintiff's costs in the proceedings for the taking of accounts.

CATCHWORDS : PRACTICE AND PROCEDURE – application by plaintiffs to discharge or vary orders that have become otiose by way of changing circumstances – where defendant acquired property in breach of fiduciary duty – where orders made for taking of an account and reconveyance of property – where defendant not in jurisdiction and prevented from travelling – where defendant failed to take all necessary steps to allow account to proceed – whether to stay taking of account – orders for account not otiose – court has power to make appropriate orders to complete taking of account if defendant does not participate

CATEGORY : Procedural and other rulings

CASES CITED : Lym International Pty Limited v Chen [2009] NSWSC 167