Equititrust Limited v Checkling Pty Ltd (receiver and Manager appointed) (in Liquidation) [2012] NSWSC 121

Supreme Court New South Wales

Medium Neutral Citation: Equititrust Limited v Checkling Pty Ltd (receiver and Manager appointed) (in Liquidation) [2012] NSWSC 121 Hearing dates: 15 February 2012 Decision date: 27 February 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Pursuant to section 73 of the Civil Procedure Act 2005: (a) on the true construction of the compromise embodied in the Judgment and Orders of the Court entered on 18 May 2011 (the Orders), the Plaintiff is entitled to be repaid $30,000 of the sum paid to the trust account of the solicitors for the Second and Third Defendants, DC Legal Pty Ltd, pursuant to the said Orders in the event that the Second Defendant and the Third Defendant of the land, the subject of the proceeding, on or before 14 June 2011; (b) that the Second Defendant and Third Defendant failed to surrender occupation of the land on or before 14 June 2011; (c) that DC Legal Pty Ltd forthwith pay the said amount of $30,000 to the Plaintiff; (d) in the event that DC Legal Pty Ltd has paid the said amount of $30,000 to or at the direction of the Second Defendant and/or Third Defendant, that the Second Defendant and the Third Defendant repay the said amount of $30,000 to the Plaintiff. 2. Unless the parties approach within 7 days of the date of the judgment, the Court's order as to costs is that the defendants must bear the plaintiff's costs of the matter, as agreed or assessed. Catchwords: PROCEDURE - motion - orders sought under s 73 of the Civil Procedure Act 2005 - proper construction of consent orders - possession - non-compliance with order - whether consent orders were ambiguous - orders not ambiguous - breach of order - costs Legislation Cited: Civil Procedure Act 2005 Water Act 1912 Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 Category: Procedural and other rulings Parties: Equititrust Limited ACN 061 383 944 (Plaintiff) Checkling Pty Ltd (Receiver and Manager appointed) (in Liquidation) (First Defendant) Peter Birch (Second Defendant) James Birch (Third Defendant) Representation: Counsel: Mr J Hogan-Doran (Plaintiff) Solicitors: Tucker & Cowen Solicitors (Plaintiff) Mr B Dennis, solicitor DC Legal Pty Ltd (Defendants) File Number(s): 2011/66158 Publication restriction: None