Interim payment: Limiting how the payment is used?

In Stewart v Chee [2018] NSWSC 263 the defendant renal surgeon agreed to make an interim payment, but sought to impose terms such that  the payment be used “for the purpose of dialysis care and treatment” (at [10]).

The plaintiff in recent correspondence had indicated that she did not propose to apply the moneys towards her litigation costs. The defendant submitted, however, that the plaintiff did not clearly indicate that the interim payment will in fact be used for the purposes of dialysis care and treatment (at [14]).

The court held at [18] – [19]:

I am not satisfied that it is a requirement of s 82 that any condition should be imposed and I am comfortably satisfied on the basis of the authorities that it would not be appropriate to impose any such condition in the circumstances.

There is the further matter of the difficulty of enforcing such an order. It cannot be accepted that a defendant would be entitled constantly to inquire of a plaintiff whether in correspondence, interrogatories or otherwise what use was being made of the money and to require proof in that regard. That appears to me to be another indication that it would be inappropriate to impose the condition…