Australia, March 12 -- New South Wales Land and Environment Court issued text of the following judgement on Feb. 13:

1. HER HONOUR: This judgment concerns costs and the release of funds held in the trust account of the defendants' solicitor under an interlocutory regime.

FACTS

2. In August 2022, the defendants agreed to sell a 'charcoal chicken' business in Mt Druitt to the plaintiff. The plaintiff paid for the shop and stock and began to operate the business. In September 2022, the parties signed a Heads of Agreement in respect of the sale, while more detailed transaction documents were being prepared. In October 2022, however, the first defendant, Simon Munzer, changed his mind and re-took possession of the shop to the exclusion of the plaintiff.

3. In November 2022, these proceedings were commenced. On 9 December 2022, Parker J made orders to expedite the proceedings and tentatively listed the matter for hearing in February 2023. His Honour also made orders for an interim regime:

1. By 16 December 2022, the defendants will transfer the sum of $116,282.82 (Held Funds) into the trust account (Trust Account) of their solicitors, Orison Law Group.

2. The defendants shall instruct and cause Orison Law Group to hold the Held Funds in the Trust Account until further order of the Court.

3. Until further order of the Court, the defendants:

(a) shall, by themselves, their servants and their agents, operate the restaurant business currently operating from Shop 2, 3 Cleeve Close, Mount Druitt NSW (Business);

(b) in operating the Business in accordance with sub-paragraph (a), shall not, and will cause their servants and agents not to, dispose of or deal with any assets of the Business otherwise that in the ordinary course of business or with the prior written consent of the plaintiff;

(c) shall not sell (or purport to sell) or otherwise dispose of the Business or any part of, or interest in, the Business;

(d) shall not transfer, assign, sub-let, licence or otherwise deal with any interest they hold in the lease of the premises from which the Business operates; and

(e) shall, upon receipt of a written request of the plaintiff's solicitor (such request not to be made more than once every three month), provide the plaintiff with a letter from their accountant detailing the total gross revenue and expenses for the requested period.

4) Over the period that the defendants are operating the Business pursuant to paragraph 3 above, the plaintiff shall not, subject to paragraph 3 above, take any steps to interfere with the defendants' operation of the Business.

4. In short, the parties agreed that the defendants would operate the 'charcoal chicken' business until the conclusion of the proceedings and hold the monies paid by the plaintiff for the shop and stock in their solicitor's trust account until the Court determined whether there was a binding sale. These orders were made by consent. The transcript of the hearing before Parker J contains no further discussion in respect of the regime.

5. On 15 December 2022, the plaintiff filed a statement of claim.

6. On 21 December 2022, the plaintiff's solicitors wrote to the defendants' solicitors complaining that invoices from suppliers and utility providers continued to be received by the plaintiff and, where the defendants were now running the business, ought to be paid by the defendants promptly. The defendants' solicitor simply replied that he was instructed that the invoices had been paid.

7. On 2 January 2023, a defence was filed (late). On 26 January 2023, the defendants filed a cross claim (late). Although the defendants had been ordered to file any evidence in support of the defence and cross claim by 30 December 2022, none was filed. On 2 February 2023, the plaintiff filed a defence to the cross claim. On 3 February 2023, Parker J set the matter down for hearing on 20 March 2023 for two days.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/194de1fa3e62a1f4b25dfb14)

Disclaimer: Curated by HT Syndication.