submitted that it was a moot point as to whether Liberty had ever agreed to be
bound by Dr Chern's terms, and indeed they did not entitle him to seek security
from the responding party but only the referring party.
In fact, it was not disputed before the court that the effect of the Scheme and the
authorities set out above was that an attempt to exercise a lien over the delivery
of a decision within the statutory or agreed time periods was unlawful and that
such an attempt might well render the decision once delivered unenforceable.
The court noted that while Liberty had objected to paying the fees and had fully
reserved its position to avoid the suggestion of waiver of any jurisdictional
challenge[13], it had not objected to the fact of, or manner in which the clerk had
sought, payment of the fees.
The court analysed the emails and concluded that, despite the fact the demands
for payment were "tenacious and persistent," they had not "crossed the line". There
was no attempt to exercise a lien nor threat to do so. The Decision was
enforceable.
The second issue concerned an allegation by Liberty that NJCH had failed to make
full and frank disclosure (as required by previous case law and practice) when
obtaining the interim freezing injunction continued by O'Farrell J after an earlier
hearing. In the result, they sought the discharge of the injunction. The court found
there had not been any deliberate and material non-disclosure.
The third issue. The application for a stay of execution was predicated on the
assumption that the freezing injunction would be discharged. Since that
application failed, the grounds for the stay fell away.
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