http://www.austlii.edu.au/au/cases/cth/FCCA/2013/31.html

FAMILY LAW – Property – application to set aside property orders made by consent.

PRACTICE & PROCEDURE – Summary dismissal – application for summary dismissal – where Respondent seeks summary dismissal of application – whether the substantive application has a reasonable prospect of success – whether Applicant has an arguable case – application need not be hopeless or bound to fail to have no reasonable prospects of success.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/70.html

APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required

CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference

CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests

EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1168.html

REAL PROPERTY – co-ownership – application for appointment of statutory trustees for sale – adjustment of interests – whether non-occupying owner entitled to occupation fee – where there has been no exclusion from the property – consideration of principle in McKay v McKay and Callow v Rupchev – held applicable to “domestic relationship” between brother, sister and mother.
REAL PROPERTY – co-ownership – application for appointment of statutory trustees for sale – adjustment of interests – whether contributions made by associated entity attributable to party.
EQUITY – trusts – resulting trust – presumption of resulting trust based on contributions to purchase price – presumption rebutted where parties have agreed on beneficial interest at time of purchase.
EQUITY – trusts – remedial constructive trust – principle in Baumgartner – application to family relationship – necessity of identifying relevant “joint enterprise” – whether there was “attributable blame” for the failure of the joint enterprise – whether party adequately compensated by a right to contribution – whether respective contributions by parties should be valued according to cost or increase in value of property.
LIMITATION OF ACTIONS – whether claim for imposition of remedial constructive trust subject to limitation period – application of Limitation Act directly or by analogy – distinction between claim for constructive trust and claim for debt or action for money had and received – consideration of when claim for remedial constructive trust accrues.
EVIDENCE – admissibility – inadmissibility of evidence of communications in connection with an attempt to negotiate a settlement of the dispute – whether admissions made in such communications admissible – consideration of exception in s 131(2)(g) – held evidence not admissible simply because it qualifies other evidence adduced in proceedings.
ONUS OF PROOF – general principle – onus is on the defendant if the allegation is not simply a denial of an essential ingredient of the cause of action but a good defence.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/935.html

PRACTICE AND PROCEDURE: Review of Registrar’s decision under UCPR rule 49.19 on preliminary discovery – principles to apply – nature of review

Preliminary discovery – UCPR rule 5.3 – principles to apply

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/929.html

EVIDENCE – affidavit – communications made in attempt to negotiate settlement of underlying proceedings – without prejudice – whether evidence receivable because it falls within s 131(2)(g) of Evidence Act 1995

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/778.html

EVIDENCE – Evidence Act 1995 , s 131 – whether settlement communications admissible – settlement communications admissible pursuant to 131(2)(f) as existence of or making of agreement an issue in proceedings

(NSW) Evidence Act 1995 s 131, 131(2)(f)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/720.html

[COMMERCIAL ARBITRATION] – contracts – whether contracts made between the plaintiff and the first defendant constitute a valid arbitration agreement for the purposes of s 7 of the Commercial Arbitration Act 2010 (NSW) – whether contract ancillary to the principal contracts governed the dispute resolution process.

[ESTOPPEL] – estoppel in pais – convention; estoppel by – whether sufficient detriment that parties are estopped from denying their contractual relationship is governed by a dispute resolution clause.

24. The Council replied by email of 18 January 2010, appointing a meeting for 21 January 2010 at 3pm. That was changed to 1pm on Friday, 22 January 2010. That meeting occurred.

25. In relation to that meeting, Mr Jensen of Jenbuild sent an email on 21 January 2010. Mr Corsaro of Senior Counsel, who appeared for the Council, objected to the tender of that email, relying on s 131 of the Evidence Act 1995 (NSW). He submitted that the email was a communication made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute.

26. I do not think that a document appointing a meeting for a contractual purpose (for example, in compliance with alternative 1 set out in cl 47.2 of the general conditions of contract) is a “communication” of the kind referred to in s 131(1)(a). The purpose of s 131 is, as its heading indicates, to exclude evidence of what is said or communicated in the course of settlement negotiations. That reflects the law’s concern to ensure that parties in dispute should be free to attempt to settle their disputes, without curial, arbitral or other imposed resolution, without being put at risk that what is said in an attempt to negotiate a settlement will be used in evidence against them at a later time. The fact that there was to be a meeting can hardly be of any significance, particularly where that meeting was one (on Jenbuild’s case) required by the contract to be held. Nor did the email, to the extent that I admitted it, give any clue as to what had been said at the previous meeting, or what might be said at the meeting to be held later on the day the email was sent.

27. The email did however proceed further, and make observations as to the Council’s conduct, apparently in the prior settlement meeting, in a way that did seem to me to infringe s 131. Accordingly, I rejected those paragraphs of the email from the tender.
28. However, at a later stage in the course of the hearing, Mr Corsaro then sought to tender those two paragraphs. When he did so, they were admitted. It appears that he sought to do so because he wanted to make the point that Jenbuild had proposed binding expert determination. That submission in turn prompted Mr Roberts of Senior Counsel, who appeared for Jenbuild, to tender a letter of 15 April 2009 from Jenbuild to the Council which had earlier been tendered and rejected on s 131 grounds (and on Mr Corsaro’s application). Mr Roberts renewed the tender of that letter and I admitted it.

29. I have to say that all of this seems to me to be much ado about nothing. However, it will be necessary to return to the submission, as to expert determination, in due course.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/742.html

PRACTICE AND PROCEDURE – “without prejudice” – s 131 Evidence Act 1995 (Cth) – whether applicant can adduce evidence of communications between the parties at the substantive hearing before Jessup J – whether the relevant communications were in respect of a “dispute” – whether genuine attempt to negotiate – whether any of the exceptions in s 131 (2) applied to exclude protection under s 131(1) of the Evidence Act 1995 (Cth)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/403.html

[CORPORATIONS] – whether the transfer of shares of the corporation in two other corporations by directors to wife and daughter respectively amounted to oppression against the minority shareholders – whether notice was given – whether consent or acquiescence – whether shares transferred at undervalue.

[DIRECTORS] – Obligations in circumstances where transfer of corporation’s assets are to be transferred to a family member – whether consent obtained – whether breach of statutory duties and breach of fiduciary duties.

[KNOWING RECEIPT] – where wife/daughter to whom shares transferred aware of circumstances which would indicate the facts to an honest and reasonable person – where admission that transfer was to avoid litigation and/or appointment of provisional liquidator.

[CONVEYANCING] – Conveyancing Act 1919 (NSW) – s 37A – whether alienation of shares to delay hinder or defraud creditors – where admissions that transfer was made to avoid the appointment of a provisional liquidator.

[EVIDENCE] – where plaintiffs did not give evidence – “rule” in Jones v Dunkel – whether necessity to give evidence to prove oppression under s 232 of the Corporations Act 2001 (Cth) – and/or to prove prejudice under s 37A of the Conveyancing Act 1919 (NSW)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/163.html

APPEAL – practice and procedure – discovery – application for further discovery by defendant – appeal from decision of Associate Judge – whether documents subject to ‘without prejudice’ privilege were discoverable – whether s 131(2)(g) of the Evidence Act 2005 was engaged – whether party claiming client legal privilege has acted inconsistently with the maintenance of privilege – defendant’s appeal dismissed

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/3.html

Procedure – Costs – Departing from the general rule – Conduct of parties – Other conduct – Whether magistrate entitled to take into account an informal offer of settlement made in a mediation conference.

Evidence Act 2001 (Tas), s131.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1380.html

PARTNERSHIP – JOINT VENTURE – whether the parties engaged in partnership or joint venture for the importation and sale of insulation ceiling batts – whether breach of fiduciary obligations on unilateral termination of any such agreement – questions of liability only to be determined in preliminary hearing – HELD – no partnership or joint venture for the importation and sale of batts established – no breach of fiduciary obligations

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1282.html

EVIDENCE – without prejudice settlement negotiations – claim for privilege – whether the “substance” of the communication already disclosed – whether non-disclosure “likely to mislead” the Court

Evidence Act 1995 (Cth) ss 122, 131

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1282.html

EVIDENCE – without prejudice settlement negotiations – claim for privilege – whether the “substance” of the communication already disclosed – whether non-disclosure “likely to mislead” the Court

Evidence Act 1995 (Cth) ss 122, 131

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1183.html

COSTS – application for costs order against non-parties and solicitor acting for plaintiff on indemnity basis – substantive application dismissed on various grounds including abuse of process – finding on costs application that substantive application not brought to wind up defendant but for collateral purpose

Held: non-parties and solicitor to pay defendant’s costs of the proceeding on an indemnity basis

http://www.austlii.edu.au/au/cases/tas/supreme_ct/2011/52.html

Professions and Trades – Lawyers – Duties and liabilities – Counsel and Client – Other matters – When a barrister may be restrained from continuing to act against a party – Court’s inherent jurisdiction.

http://www.austlii.edu.au/au/cases/cth/FCA/2002/1605.html

COSTS – discretion conferred upon Court by subs 43(2) Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation – Court must consider particular facts of the case before it – ordinary rule is that costs follow the event and a successful party will receive his/her costs in the absence of special circumstances justifying some other order – offer to settle – in assessing utility of offer, Court must consider whether offer is constructed in such a way as to constitute a reasonable basis for compromising or settling a proceeding and whether offer is genuine

PRACTICE & PROCEDURE – Court can consider evidence of settlement negotiations where relevant to determining liability for costs – reference to parties in O 23 r 2 Federal Court Rules is a reference to the parties to the litigation, not to the persons on whose behalf the proceedings were instituted

TRADE PRACTICES -proceedings initiated by Australian Competition and Consumer Commission for compensation for loss and damage to named third parties successful

Evidence Act 1995 (Cth), s 131(2)(h)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/912.html

COSTS: Costs of motion without decision on merits – Section 131 Evidence Act

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/873.html

EVIDENCE – admissibility – mediation privilege – whether s 30 of the Civil Procedure Act applies – s 30 only applies to court ordered mediation under Part 4 of Civil Procedure Act – other mediations do not attract mediation privilege of s 30
RESTITUTION – account stated – accounts as admissions of debt – whether statute barred – limitations period runs from time of accrual of underlying debt or cause of action, not time of admission – documents relied upon do not constitute admissions

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/815.html

Oral agreement – Terms of contract – Credit – Assessing documentary evidence – ‘without prejudice’ proposal – section 131(2)(e) Evidence Act 1995 (NSW) – section 131(2)(f) Evidence Act 1995 (NSW) – section 131(2)(g) Evidence Act 1995 (NSW) – Exceptions to ‘without prejudice’ rule – Voir dire

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/738.html

Insurance Contracts – Statutory write-off – Section 16B (3) (f) Road Transport (Vehicle Registration) Act 1997 (No 119) – Cl 83C (1) (c) Road Transport (Vehicle Registration) Regulation 2007 – Election – Reasonable time – “Without prejudice” communication – Construction of insurance clause – Hearsay

http://www.austlii.edu.au/au/cases/cth/FCA/2002/1605.html

COSTS – discretion conferred upon Court by subs 43(2) Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation – Court must consider particular facts of the case before it – ordinary rule is that costs follow the event and a successful party will receive his/her costs in the absence of special circumstances justifying some other order – offer to settle – in assessing utility of offer, Court must consider whether offer is constructed in such a way as to constitute a reasonable basis for compromising or settling a proceeding and whether offer is genuine

PRACTICE & PROCEDURE – Court can consider evidence of settlement negotiations where relevant to determining liability for costs – reference to parties in O 23 r 2 Federal Court Rules is a reference to the parties to the litigation, not to the persons on whose behalf the proceedings were instituted

TRADE PRACTICES -proceedings initiated by Australian Competition and Consumer Commission for compensation for loss and damage to named third parties successful

Evidence Act 1995 (Cth), s 131(2)(h)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/725.html

COSTS – Settlement offer – Deadline for acceptance one day before commencement of trial – Offer included releases of other actual or potential claims extraneous to present proceeding – Whether Calderbank letter – Whether unreasonable for applicants to reject offer – Whether party-party or indemnity costs – Whether security should be released

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/121.html

APPEAL – civil – damages – award – whether judge awarded excessive damages not reflected in the evidence.

PROCEDURE – civil – judgments and orders – whether final judgment had been given before variation made – whether variation could be made even if judgment had not been entered – Uniform Civil Procedure Rules r 36.11(2).

http://www.austlii.edu.au/au/cases/cth/FCA/2011/489.html

PRACTICE AND PROCEDURE – application by non-party to inspect Form 167 and Form 168 filed pursuant to O 81 rr 5(2) and 7(1) of the Federal Court Rules – whether Form 167 is part of an originating process within O 46 r 6(2)(a) – whether Form 167 or Form 168 is a pleading or particulars of a pleading within O 46 r 6(2)(c)

Held: neither Form 167 nor Form 168 was an originating process, pleading or particulars of a pleading within the meaning of O 46 r 6(2)(a) or (c) – non-party has no right to inspect

PRACTICE AND PROCEDURE – whether leave should be granted to non-party to inspect a Form 167 or Form 168 pursuant to O 46 r 6(4) – no evidence led to support application to inspect – Form 167 and Form 168 filed under compulsion in accordance with O 81 rr 5(2) and 7(1) – implied undertaking as to confidentiality of documents produced by compulsion of Court orders or requirements – settlement agreement between parties to keep the terms of the complaint and attachments to the Form 167 confidential – Form 167 and Form 168 not deployed nor played any part in conduct of the proceedings in open court – principle of open justice not engaged – public interest in settlement of litigation

Held: application to inspect each Form 167 and Form 168 refused

http://www.austlii.edu.au/au/cases/cth/FCA/2011/453.html

COSTS – leave to discontinue sought – cross-claim for contribution– supervening event – whether discontinuance constitutes an “abandonment” of cross-claim –consideration of circumstances in which costs order is appropriate – leave to discontinue granted with no order as to costs.

EVIDENCE – affidavit material revealed contents of without prejudice communications – relevant to the issue of costs – s 131(2)(h) of the Evidence Act provides exception where the communication is relevant to determine liability for costs

http://www.austlii.edu.au/au/cases/cth/FCA/2011/350.html

PROCEDURE AND PRACTICE – subpoena for production – relevance of documents – settlement agreement entered into by third parties in respect of the value of securities similar to securities to be valued

EVIDENCE – whether settlement agreement is a communication or document made “without prejudice” – s 131 of the Evidence Act 1995 (Cth)

Held: subpoena set aside – settlement agreement insufficiently relevant – settlement agreement was not protected by “without prejudice” privilege under s 131 of the Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth) s 131

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/170.html

COSTS – defamation – apportionment of costs – Defamation Act 2005 s 40(2) – indemnity costs – where plaintiff succeeds on one only of a number of imputations – whether costs should be apportioned to reflect time taken dealing with issues where plaintiff unsuccessful – whether plaintiff entitled to indemnity costs – whether interests of justice required otherwise where defendants unable to refer to what occurred during mediation – where defendants could have made offers not embargoed by Civil Procedure Act 2005 s 30(4) – defendants to pay plaintiff’s costs on indemnity basis

http://www.austlii.edu.au/au/cases/cth/FCA/2011/276.html

EVIDENCE – Admissibility – whether communication excluded by s 131 of the Evidence Act because made in an attempt to negotiate a settlement – meaning of “negotiate a settlement” – whether an assertion of a person’s rights or position can constitute an attempt to negotiate a settlement – whether exclusion in s 131(2)(g) attracted – purpose of
s 131(2)(g) – s 131(2)(g) only attracted where exclusionary rule in s 131(1) would operate to allow a party which has adduced evidence, to use the exclusionary rule as an instrument for misleading the court.

Evidence Act 1995 (Cth) ss 131, 131(1), 131(1)(a) and (b), 131(2), 131(2)(g) and 131(5)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/240.html

PRACTICE AND PROCEDURE – “without prejudice” – whether evidence of discussions in mediation between applicant and respondent admissible in alternative proceedings – scope of “without prejudice” rule at common law – exceptions to “without prejudice” rule at common law – whether “without prejudice” rule applies where misleading and deceptive conduct alleged – whether terms of settlement deed prohibit the introduction of documents prepared for the purposes of a mediation.

EVIDENCE – whether evidence of discussions in mediation inadmissible under s 131(1) of the Evidence Act 1995 (Cth) – whether s 131(1) does not apply by reason of exceptions in s 131(2) of the Evidence Act 1995 (Cth) – whether the exceptions under s 131(2)(g), (i) and (j) established – whether evidence should be excluded under s 135(a) of the Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth) ss 131, 135

http://www.austlii.edu.au/au/cases/cth/FCA/2011/186.html

BANKRUPTCY – Sequestration order – creditor’s petition – whether act of bankruptcy within six months of petition – interpretation of order extending time for compliance with bankruptcy notice until “first return date” of notice of appeal – whether “first return date” was date of appeal index conference before registrar or later call-over before judge

BANKRUPTCY – Sequestration order – creditor’s petition – whether debtor able to pay debts within meaning of Bankruptcy Act 1996 (Cth) s 52(2)(a) – whether sequestration order ought not be made for “other sufficient cause” within meaning of s 52(2)(b)

Evidence Act 1995 (Cth) ss 91, 131

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1371.html

CORPORATIONS – insolvency – company trustee of trust funds – whether liquidator can be paid costs and remuneration out of trust money – proposed mediation – whether a mediation agreement restricting use of information obtained ought be approved

Evidence Act 1995 (Cth), s 131(1)

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/877.html

PROCEDURE – costs – whether unsuccessful plaintiff should be ordered to pay costs on the indemnity basis – whether costs order already made and beyond court’s power to vary – held not – defendants seek to rely on offer of compromise – plaintiff says disclosure of offer is breach of contract warranting exclusion under Evidence Act, s 135(a) – held no breach of contract – plaintiff says such disclosure precluded by Civil Procedure Act, s 30(4) – held not as section applies only to court ordered mediation – plaintiff says non-acceptance of offer not unreasonable where defendants’ evidence not served when offer made – but plaintiff actively rejected offer and made counter-offer despite absence of defendants’ evidence – non-acceptance of defendants’ offer by plaintiff unreasonable – indemnity costs ordered

Evidence Act 1995 , ss 131, 135(a)

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/874.html

COSTS – Offer of compromise – Calderbank letter – Not unreasonable to refuse offer – Offer of compromise under UCPR, r 20.26 – Offer not accepted – Whether any basis for Court to “otherwise order” – Whether exceptional circumstances established by offeree – Order for indemnity costs assessed from date of the offer of compromise under UCPR, r 20.26.

http://www.austlii.edu.au/au/cases/cth/FCA/2010/467.html

EVIDENCE – claim for privilege – documentary evidence of what passed between parties during settlement negotiations with respect to costs – proscription pursuant to s 131(1) of the Evidence Act 1995 (Cth) (“the Act”) does not apply – public interest exceptions under s 131(2) of the Act may apply – Court may have regard to document for purpose of determining appropriate costs orders

Evidence Act 1995 (Cth) ss 55, 56, 131

[2009] ACTSC 147
PRACTICE AND PROCEDURE – costs – Calderbank letter – indemnity costs.

Evidence Act 1995 (Cth), s 131(2)(h)

[2009] NSWCA 394

PROCEDURE – Costs – Relief obtained by successful appellant substantially less than sought at first instance and on appeal – Less than reasonable participation in settlement negotiations – Appropriate orders for costs at first instance and on appeal.

Evidence Act 1995 s 131(2)(h)

[2009] FCA 1508

EVIDENCE – parties attended a Court ordered mediation conference – whether evidence of communications of offer of compromise made at the mediation conference admissible on the question of costs.

COSTS – whether Commissioner acted unreasonably in not accepting offer of compromise – obligation on Commonwealth to act as a model litigant – whether compassionate considerations a relevant factor.

Evidence Act 1995 (Cth) s 131, 131(1), 131(2)(h)