Testimonials

The Story

Prime Lawyers was engaged to close down the activities of a debtor company indebted to creditors to the tune of millions of dollars. In the background the debtor company had been making arrangements to transfer its customer base to another company. The director of the debtor company was to be in a position of authority within the new entity. A number of failed negotiations had occurred prior to Prime Lawyers’ involvement. Those negotiations appeared to be nothing more than an attempt to buy time to create a corporate changeover.

Court Proceedings Commenced

Upon being instructed Prime Lawyers immediately moved to become the petitioning creditor commenced by another creditor in the Federal Court of Australia. Section 465B of the Corporations Act 2001 enables a creditor to take the place of the applicant creditor if the application for winding up is not being proceeded with diligently enough, or for some other reason. The application was initially resisted by the debtor company but ultimately orders were made to substitute the client as applicant creditor, meaning the client could proceed with an application to wind up the debtor company and appoint a liquidator. This quick action ensured that there would be no phoenix activity as the debtor company would be forced to pay its debts or be sold for fair market value.

Prior to the winding up application being heard the debtor company appointed a voluntary administrator. Section 440D of the Act provides that during the administration Court proceedings against the company cannot be commenced or proceeded with without the administrator's consent or leave of the Court. Section 440D does not prevent winding up proceedings, already on foot, from continuing (Cory v Registrar of the Federal Court of Australia [2010] FCA 1215.

The purpose of the appointment of an administrator was to determine whether the creditors of the company should vote in favour of a Deed of Company Arrangement (DOCA), the terms of which included the sale of the debtor company assets to the newly created company.

As a result of the administration the debtor company applied for, and was granted, an adjournment of the winding up proceedings in order to have the company’s creditors vote on the proposed DOCA. At the subsequent meeting the majority of creditors approved the DOCA, many of those creditors being related interested parties, including the newly created company. The client and many other creditors who were refused voting rights opposed the DOCA for it meant no real return, would allow the director to avoid insolvent trading proceedings and enable the director to continue business with the newly created company.

On the next Court date the debtor company again applied for an adjournment of the winding up proceedings so that the company could formally enter into the DOCA in accordance with the creditors’ wishes.

Section 440A of the Corporations Act 2001 provides that the Court is to adjourn the hearing of the winding up application if the company is under administration and the Court is satisfied that it is in the bests interests of the company's creditors for the company to continue under administration rather than be wound up.

Prime Lawyers submitted that the Court should not be satisfied that the DOCA was in the best interests of the creditors, notwithstanding that the creditors are usually the best judge of what is in their interest.

The Judgment

In giving judgment the Court approved the words of the Supreme Court of NSW in which it was said: “No one with an eye to their own financial interests would regard such a return as worth pursuing with any greater vigour than one might expect in picking up a coin found lying on the pavement” and ordered that the DOCA, notwithstanding the votes of the majority of creditors, was not in the interests of the creditors. The Court proceeded to wind up the debtor company and appoint the client’s liquidator.

Subsequent to the liquidation the director of the defunct company was made bankrupt, a consequence of the debtor company failing to pay its creditors.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.

Background

A serious indictable offence is an indictable offence punishable by imprisonment for life, or for a term of 5 years or more.

Mick and Mary were married. Husband and Wife.

During the course of their marriage Mick had found himself on the wrong side of the law. He was charged, and later convicted, of a serious indictable offence.

The investigation against Mick uncovered evidence that Mary was aware Mick had committed the serious indictable offence. Mary denied such knowledge but was charged by Police under section 316 of the Crimes Act 1900.

The Charge

Section 316 of the Crimes Act 1900 provides that if a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and has information which might be of material assistance in securing the apprehension, prosecution or conviction of the offender for the offence, fails without reasonable excuse to bring that information to the attention of a member of the Police Force, that other person is liable to imprisonment for 2 years.

The evidence against Mary was strong, and she was facing a term of imprisonment of up to 2 years for failing to report Mick’s actions to the Police.

The Defence

Rather than defend the charge by opposing the Crown’s evidence as to Mary’s knowledge of Mick’s offence, Prime Lawyers set out to rely on the little known common law defence of spousal immunity. A common law defence is one which has developed from case law (and not statute), often developed over many years by various Courts of England and then Australia, to meet the changing views of the community, or judiciary.

The common law defence of spousal immunity would provide Mary with a complete defence to the charge, provided this 700 year old common law defence applied in Australia to begin with, and provided the defence had not been abolished by Parliament at any point in time. Prime Lawyers were always confident that the defence was still good law.

In 1998 section 347A had been inserted into the Crimes Act 1900 by act of Parliament. Section 347A expressly excluded the common law rule granting immunity to a wife against prosecution as an accessory after the fact to a felony committed by her husband. Mary was not charged as an accessory and section 347A (a distinction that the Crown was unable to draw) and this, among other things, would later be relied upon by Prime Lawyers in support of the submission Parliament had had the opportunity to exclude the common law defence in question, but chose not to do so.

The Hearing

The Crown’s case was prepared, the trial set for 3 days. All the Crown witnesses gave evidence. Prime Lawyers merely tendered the marriage certificate of Mick and Mary. There would be no cross examination of Crown witnesses. Their evidence, for the purposes of the case against Mary, was irrelevant as far as Prime Lawyers were concerned. The Crown did not understand nor was it expecting the case that the Defence ran. The Magistrate hearing the matter accepted the evidence of the Crown. The Magistrate formed the view that the defence did not exist.

Mary was found guilty of section 316 of the Crimes Act – concealing serious indictable offence and was sentenced. On Prime Lawyers' advice, Mary appealed.

The Appeal

The appeal proceeded on the evidence and material that was before the Local Court Magistrate. Unlike the original hearing, the Crown this time had come prepared for the defence of spousal immunity. Detailed submissions were made by the Crown as to why the Magistrate's decision was good, and why the 700 year old defence had no application to the offence in question. The Judge was an experienced and highly regarded lawyer who at first appeared to accept the Crown case - he found it difficult to accept that the defence existed. Prime Lawyers relied on the same, forceful submissions. The Court reserved judgment and adjourned the matter for approximately two weeks as further consideration was required before a decision could be made.

The Judgment

When the matter returned to Court, the Judge delivered his judgment: “The appeal must be upheld”. In giving judgment, the Court recommended in the strongest possible terms that the case be highlighted to the Director of the Criminal Law Review Division with a view of having the Parliament erase the common law defence relied upon in this case. The recommendation was taken up by the New South Wales Parliament by the introduction of Clause 7 in Schedule 3 of the Crimes Act:

7 Person who fails to disclose crime committed by the person’s husband or wife or de facto partner:
(1) Any common law rule that a person cannot be found guilty of an offence involving failing to disclose a crime committed by the person’s husband or wife or de facto partner is abolished.

The enactment of clause 7 was not retrospective, and as such Mary could not be found guilty of a charge under section 316 of the Crimes Act 1900. Mary’s case was likely the first time the 700 year old defence had been applied in New South Wales for some years; and it was almost certainly the last. It serves as an example of how our knowledgeable lawyers apply good law, regardless of vogue, to obtain the best possible results for our clients.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients. 

The Story

For some time John cared for Betty in her elderly years. They were friends from a local community group. In exchange for his friendship Betty left her estate to John, being the house she resided in.

Following the Betty’s death John received a visit from two strangers. The knock at the door was forceful, as were the strangers’ demands – hand over the house in accordance with Betty’s international Will. The strangers produced copies of the International Will said to leave her estate to estranged family members. The international Will did not fit with Betty’s conduct prior to her death. John refused to transfer the house, “the Will is a forgery” he said.

The Court Proceedings

Those propounding the International Will duly commenced legal proceedings in the Supreme Court of New South Wales against John seeking orders that the house be transferred to them. John was not wealthy, and loss of the proceedings would not only see the house transferred away from him, but also a significant adverse costs order likely to result in bankruptcy.

Evidence of Betty's wishes was produced in the form of the International Will, dozens of handwritten letters, photographs and internationally certified transfers. The evidence against John was mounting.

John Instructs Prime Lawyers

As each document in support of the International Will was filed the advice to John from his solicitors was to settle the case. Take what you can get.
John refused. He was steadfast in his belief that the evidence against him had been fabricated. In light of this position John instructed 4 law firms to represent him before settling with Prime Lawyers.

Upon being instructed Prime Lawyers sourced as many documents written by Betty together with Court orders requiring the production of the original evidence against John.
The documents collectively were sent to one of Australia's leading forensic document examiners.

The Forensic Report

With the use of specialised techniques the forensic document examiner concluded the notes, photographs and International Will had either been fraudulently altered or falsely created in their entirety.

Back to Court

So as to ensure John would not be forced to incur the costs of a defended hearing Prime Lawyers promptly filed an application for security for costs in accordance with Uniform Civil Procedure Rules 2005 r. 42.21. An application of this kind requires the plaintiff to pay monies into Court as security for the defendant’s legal costs in the event that the claim is dismissed. The application was opposed and the matter heard before a Judge of the Supreme Court of New South Wales.

The Judgment

After hearing the evidence the Court held there was serious concerns about the bona fides of the plaintiff's case. The plaintiffs were ordered to pay the amount of $60,000 into Court within 60 days as security for the defendant's costs. If the sum was not paid the case against John would be dismissed.
60 days later the case against John was dismissed.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.

The Story

Ben and five of his friends had planned a weekend away. There was a music festival on in Sydney and being from interstate the boys booked their flights and accommodation. Upon arrival in Sydney Chuck suggested the purchase of ecstasy - "everyone takes them at these kinds of things".
The boys pooled their money and the deal was done. Just one more thing to do - get the pills into the festival. Ben was the youngest. The boys gave their ecstasy to Ben. At the gates of the festival Ben spots the Police. Ben is approached by Police and admits he is carrying drugs. He further confesses that the drugs were for him and his friends and cost $20 each.

The Charges

Ben was charged with a number of counts of possession of prohibited drug under section 10 of the Drug Misuse and Trafficking Act 1985. The prohibited drug being a quantity of methylenedioxymethylamphetamine (MDMA), commonly known as ecstasy. The charge meant a maximum penalty of $5,500 or 2 years imprisonment. If Ben did not understand the gravity of the situation the reality hit home when he was also charged with supply of the 16 ecstasy tablets under section 25 of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of $220,000 and 15 years imprisonment. The supply charge also meant the case would be heard in the District Court of New South Wales, a venue where much more serious offences are heard.

The case for the Police was clear. Based on the quantity of drugs in his possession section 29 of the Act deems the possession to be for the purpose of supply, unless Ben could prove otherwise. Further, based on the admissions made by Ben it was said that he had purchased the ecstasy for himself and his friends and would later give each of his friends some of the tablets. It was said that this meant Ben was guilty of the charge of supplying a prohibited drug. The charge does not require Ben to have sold the drugs; ‘giving’ or ‘supplying’ the drugs to his friends was enough.

The Defence

After considering the charges, evidence for the Police and information provided by Ben, Prime Lawyers advised Ben to defend the charge of supply. The basis of the defence was a decision of the Supreme Court, Court of Criminal Appeal in Carey (1990) 50 A Crim R 163. In Carey it was said that there can be no charge of supply if the person possessing the drugs was merely acting as bailee. A bailee holds goods in safe keeping for the true owner.

To avoid a costly trial in the District Court, Prime Lawyers advised Ben that written representations could be made to the Director of Public Prosecutions (DPP) as to dropping the supply charge in return of a guilty plea to the possession charges. Ben agreed on this course and without prejudice representations were made to the DPP, pointing out the availability of the Carey defence. Within several days, the DPP solicitor with carriage of the matter responded that the Carey defence did not apply, and that the supply charge would remain.

Ben was faced with a defended criminal trial in the District Court of New South Wales unless he accepted the charges and entered a plea of guilty. Even then, Ben would be sentenced in the District Court for drug supply. Ben accepted the advice of his lawyers and refused to do so, instead instructing Prime Lawyers to continue with preparation to defend the charge.

Ben stuck to his guns and when push came to shove for the matter to be committed to a District Court defended criminal trial, the DPP backed down and withdrew the supply charge. Ben’s matter would proceed as a plea of guilty to a number of counts of possession of prohibited drug, including the possession of 16 ecstasy tablets, before the Local Court.

The Plea

In sentencing an offender a Magistrate has available a range of penalties that can be imposed. In Ben’s case it was crucial that no conviction was recorded as such would place his government job in jeopardy.

Section 10 of the Crimes (Sentencing Procedure) Act 1999 provides that a Court may without proceeding to conviction, find a person guilty of an offence and make an order directing that the relevant charge be dismissed. In determining whether to make an order under section 10 the Court has regard to a range of factors including the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence and any extenuating circumstances in which the offence was committed.

Despite the large amount of tablets for a possession offence, a careful plea addressing these matters was prepared and submitted orally before the Magistrate who, after some persuasion, agreed to find the offence proven but no conviction recorded under section 10 of the Act. The possession charges were dismissed. This meant that Ben was able to keep his conviction history clean and continue his government job. Ben got his second chance.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.

The Story

Jimmy and Dominic were stopped at the lights on their motorbikes, side by side. The lights went green and Jimmy and Dominic took off. Jimmy accelerated quickly and the force of his acceleration lifted his front wheel off the ground for several metres. Dominic also accelerated quickly and caught up. Down the street, each rider caught the glare of flashing red and blue lights suddenly appear in their mirrors.

The Charge

Jimmy was charged with ‘Street Racing’. The offence today is set out in Section 115 of the Road Transport Act 2013:

115 Races, attempts on speed records and other speed trials
(1) A person must not organise, promote or take part in:
(a) any race between vehicles on a road

Street Racing is a serious offence. The maximum penalty on conviction is up to $3,300 for a first offence, or 9 months imprisonment for second or subsequent charge and an automatic disqualification period of 12 months.

A conviction of the kind would also have potential ramifications for Jimmy in his chosen line of work – law enforcement. Here, like in many traffic related offences, the impact of a recorded conviction on current and future employment would be greater than the penalty itself.

Despite two police officers alleging that Jimmy and Dominic accelerated harshly from the lights, were speeding, side by side, for an extended period of time and therefore racing, Jimmy was adamant that the police allegations were not true.

Prime Lawyers were instructed to enter a plea of "not guilty" and defend the charge.

The Evidence for the Police

The Police officers who witnessed the incident, pulled over Jimmy and Dominic and charged them with the offence, gave evidence that the riders were both travelling in excess of 120km/h in a 70km/h zone, until the police eventually caught up with the pair. This element of speeding was central to the Police case. Although exceeding the speed limit is not always essential to proving a charge of street racing, in most circumstances, it is the strongest indicator of an intention to race, when two or more riders/drivers are travelling side by side, at excessive speeds. If the Magistrate found that the pair were speeding in excess of 50km/h over the limit, he could only have drawn the conclusion that they were racing.

The Police sought to rely on the Police in-car video, which showed Jimmy and Dominic accelerating harshly from the lights, along with Jimmy’s front wheel lifting from the road, travelling quickly off into the distance.

The Cross Examination

The Police only presented the in-car-video footage on the day of the hearing. The Defence requested time to view the footage before the hearing commenced. The footage was viewed several times in the presence of the police; the Defence, scanning the footage for anything that could assist Jimmy's case. And there it was - the evidence that the Police were sure would convict Jimmy would be used by Prime Lawyers to sink their case.

After giving confident, damning evidence against Jimmy, the police were cross-examined by the Defence. Careful analysis of the in-car camera had revealed a small ‘heads up display’ at the bottom of the police car's windscreen. The display was at first viewing unnoticeable and was difficult to make out.

Prime Lawyers did not reveal to the Police the evidence in the video footage that would be relied on for the Defence case. We were able to lead the Police into agreeing in cross examination that the heads up display was a digital display of the speedometer of the Police car, was calibrated regularly and was therefore accurate and reliable. The in car-video also revealed the brake lights of the motorbikes, which had been triggered just after the Police lights were activated.

Importantly, the video footage, upon very close inspection, showed that the Police vehicle had caught up to the motorbikes extremely quickly and before the brake lights of the motorbikes came on. Further, the heads up display showed that the police car only reached 110km/h as a top speed, momentarily, when the police caught up with the riders and before they pressed their brakes.

Because the Police heads up display never reached 120km/h it was submitted that the evidence of the officers that the motorbikes were racing at more than 120km/h for some time could not be accepted, and was a gross exaggeration on the true facts; that the two motorbikes had simply accelerated quickly after being stopped at a red light.

It was further submitted that, given that it could not be proved that the riders were speeding, nothing else about the circumstances could inform the Court that there was a 'meeting of the minds' between the two riders to race each other. The Court agreed that there needed to be evidence that there was some sort of agreement between the riders at some point in time.

Not guilty

The Magistrate agreed that he could not find beyond reasonable doubt that the offence had been committed. There was insufficient evidence as to Jimmy and Dominic having a ‘meeting of the minds’ to race, and the Police therefore failed to prove their case.

The charges were dismissed. Jimmy was free to continue with his work in law enforcement.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.

The Story

Maxwell and Susie were married and had a child, Mickey. The Couple separated while Mickey was quite young. Mickey lived with his mother. Maxwell complained of Susie limiting access to Mickey, both in person and on the telephone. Months passed with no contact. Maxwell needed help, he needed a lawyer.

Prime Lawyers Instructed

Maxwell instructed Prime Lawyers to commence proceedings in the Family Law Division of the Federal Circuit Court of Australia for parenting orders regarding Mickey. Since 2008 section 60I of the Family Law Act 1975 has required the parties to attempt to resolve the dispute by family dispute resolution before applying for a parenting order.

Susie refused to attend the mediation organised by Maxwell which was sufficient for the purposes of the Act to commence proceedings. Within a short period of Prime Lawyers being instructed, Susie and Maxwell had come to an interim arrangement concerning contact with Mickey. Contact recommenced and then ceased after Susie’s further demands were not met.

Prime Lawyers commenced proceedings under the Family Law Act for parenting orders enabling Maxwell to spend time with his child. Interim parenting orders were made by the Court and Maxwell had contact with Mickey once more.

Police Charges

Prior to instructing Prime Lawyers Maxwell had been subject to an interim Apprehended Violence Order applied for by the Police based on allegations made by Susie dating back two years. Separate allegations resulted in charges being laid as to breach of the AVO, assault and damage property. The charges were denied and were listed for defended hearing before the Local Court. The importance of the outcome of the Police charges could not be overstated as the same allegations against Maxwell had been made in the Family Law proceedings.

Rather than attempt to take on the criminal law proceedings the family law division representing Maxwell referred the criminal charge file within the firm to Prime Lawyers - Criminal Law Division. The criminal law file was thereafter conducted by a specialist criminal lawyer within the firm. Information sharing between the divisions ensured there was no duplication of costs, and that all facts were known.

After a two day hearing of the criminal charges, our criminal lawyer was able to persuade the Magistrate to dismiss all the charges and make findings that Susie was not a believable witness. Not only was this an important result for Maxwell, who faced criminal convictions and possible terms of imprisonment if found "guilty" of the charges, but it also damaged the strength of Susie's case against Maxwell in the family law matter.

As a result, when the family law matter was before the Court after the criminal charges were dealt with, the Court made further interim parenting orders that were more favourable to Maxwell. These interim parenting orders were to remain in place until the final hearing, which was several months down the track.

Unfortunately, before the family law matter concluded, further allegations were made to the police by Susie against Maxwell and Susie stopped Maxwell from seeing Mickey. The Police filed for an urgent AVO to be taken out against Maxwell. At the time of applying for the fresh AVO the Police sought, pursuant to s.68R of the Family Law Act to suspend an interim parenting order of the Family Court. The Local Court agreed to make the order sought by Police which meant that Maxwell could no longer "spend time" with Mickey. Based on the combined specialised knowledge of our Criminal Law and Family Law Divisions, Prime Lawyers advised Maxwell that the AVO order did not prevent Maxwell from speaking with Mickey on the telephone in accordance with the family law parenting order and that he was not in breach of the AVO if he made contact with Mickey over the phone. Were we right? The Police did not think so and charged Maxwell several days later with contravening/breaching the interim AVO for attempting to call Mickey in accordance with the Family Court parenting order.

A breach of interim AVO, by Maxwell telephoning Susie to speak with Mickey, meant an automatic final AVO would be made and further, criminal convictions for serious offences. Maxwell needed the charges and the application for a final AVO defended.

The Criminal Hearing

Leading up to the hearing, our specialist criminal lawyer representing Maxwell made lengthy written submissions to the police prosecutors, arguing that the Police criminal charges of breaching the AVO had to fail, because a proper understanding of the complexities of the Family Law Act and how it applies to AVO matters made it clear that Maxwell had not committed the offence. The submissions were made on behalf of Maxwell to try and save him the expense and inconvenience of a defended hearing.

After apparently obtaining legal advice from their legal services division and several family lawyers, including barristers, the Police prosecutors insisted that Maxwell was precluded from contacting Mickey under the AVO due to the suspension of the parenting orders and that they were confident that the prosecution would succeed. Maxwell accepted our advice and continued to fight and defend the charges.

During the hearing of the AVO application, Prime Lawyers were able to have most of the prosecution evidence struck out, which left the prosecution with a very weak case. The AVO application was therefore dismissed.

The two charges of breaching the AVO were heard on the same day. The Defence allowed the prosecution to tender to the Court all the statements in the Police case. Prime Lawyers did not rely on any evidence, confident that a proper understanding of the law and a sound legal argument would win the case.

Prime Lawyers presented the Court with a detailed analysis of the law and how s.68R of the Family Law Act had to be applied to AVO matters. The Magistrate adjourned for an hour to read the law relied on and consider the detailed submissions made by the Defence.

Upon his return, the Magistrate had no hesitation in agreeing with the Defence submissions and dismissing the charges of breaching the interim AVO, finding that a s.68R order could not extend to preventing Maxwell from telephoning Mickey.

All charges were dismissed.

Family Court

Once again, Susie's efforts to keep Maxwell out of Mickey's life by abusing the criminal justice system were thwarted by Prime Lawyers. This weakened Susie's position even further in the parenting dispute and our Family Law Division pressed on with a final hearing to obtain the parenting orders sought by Maxwell. As a result of this work the Federal Circuit Court of Australia held that each of Maxwell and Susie were to have shared parental responsibility of Mickey, and made orders that allowed Maxwell to spend time and have contact with Mickey by telephone and in person weekdays and weekends, just as Maxwell had set out to achieve.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.

The Story

Development of a land resulted in a complaint from an adjoining owner as to cracking to a concrete path and wall. It was alleged by the Neighbour that the cracking was caused by excavation works of the Developer. The Developer disagreed having engaged a variety of suitably qualified tradespeople and professionals to perform the works.

The Beginning

The Neighbour commenced proceedings against the Developer alleging negligence, either negligently excavating too close to the boundary or failing to properly undertake and shore up the excavation works. Prime Lawyers was retained by the Developer to defend the claim.

Early in the proceedings the Developer accepted our advice to make a commercial and without prejudice settlement offer to dispose of the entire proceedings without admission of liability. This offer was an “offer of compromise” made in accordance with the Uniform Civil Procedure Rules 2005. Pursuant to the Rules, if the offer was not accepted and the Developer obtained a judgment more favourable than the offer, the Neighbour would be liable to pay the Developer’s costs. As an added measure the Developer cross claimed against the various tradespeople and professionals engaged to perform the works, meaning that those tradespeople and professionals would be liable in the event that the claim against the Developer succeeded.

The Middle

Expert evidence was obtained on behalf of both parties as to the reason for the cracking. A disagreement between experts led to a Court ordered conclave between experts, in an effort to reach consensus as to the cause of the cracking.

The result of the conclave was that all experts ultimately agreed that the cause of the cracking was variation on moisture content of the soil. It was also agreed between the experts that work required to rectify the cracking would cost approximately $10,000.00.

As a result of the conclave the Neighbour amended the claim, to allege negligence giving rise to the variation in moisture content of the soil.

As the central issue was no longer the excavation, the Developer reached agreement with the cross defendants and discontinued those cross claims.

The Beginning of the End

Once the experts had determined the quantum of the rectification costs ($10,000.00) it became apparent that the Neighbour could not beat the Offer of Compromise made early in the proceedings. By the time of the expert conclave, costs loomed large. The matter was set down for final hearing. On the evidence the Neighbour could not succeed.

To address this issue the Neighbour’s representatives sought further expert evidence, and later, a change of legal representation who sought to file a further amended claim to restate the original claim of negligence arising from the excavation. The further amendment was allowed, the hearing vacated and orders were made by the Court regarding the amendment process, including a timetable for evidence and submissions etc. The Neighbour failed to comply with those orders and the matter was listed for the Neighbour to show cause as to why the claim should not be struck out.

The End – Judgment

The show cause hearing took place four years after the proceedings were commenced.

The Court looked carefully at the history of the proceedings, noting that the Neighbour was effectively starting the case again, with fresh pleadings and new evidence, both of which had to be addressed by the Developer before another hearing date could be set down.

The Court considered the pleadings as they were proposed, the overriding purpose of the Civil Procedure Act 2005 for civil claims to be resolved promptly, and the prejudice to be suffered to the Developer, noting the period to bring another cross claim against the tradespeople had expired. With those considerations in mind the Court dismissed the claim against the Developer.

The decision was one of the first judgments in New South Wales concerning list management in civil claims under the Civil Procedure Act 2005. Leave to the New South Wales Court of Appeal was later refused as by that time the Court had received supporting authority from the High Court of Australia in the decision of Aon v Anu.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.

Background

Mum and Dad wanted to purchase a country retreat. Something for the family. A place to unwind and take in the country air. As wise parents they knew locating a property would be a time consuming task, so they left that task for the kids. In no time Daughter had located a suitable property. It ticked all the boxes and there was only one thing left to do - call a family meeting!

The Meeting

The family called a meeting around the dinner table. Mum was the boss so she outlined the rules for the country retreat- visiting periods, household chores, property maintenance and planned renovations. It was determined that Daughter should be the manager of the property, what a better way to foster some responsibility than to be responsible for the country retreat? To give Daughter the appropriate authority it was determined that the property would be registered in the name of Daughter. The country retreat was purchased, with most of the purchase price being paid by Mum and Dad, and all was well.

Family Law

At around the same time as the country retreat was purchased Daughter had commenced a relationship. Daughter and Husband remained together for some time. Once the relationship had irretrievably broken down proceedings were commenced in the Family Court of Australia for property division.

A Matrimonial Asset?

In order for a Court to make an order for property division between a couple pursuant to section 79 of the Family Law Act 1975 the Court must first know the net pool of matrimonial assets. Once the net asset pool is ascertained the Court can proceed with considering contributions and other factors set out within s.79(4) before making an order for division.

Unsurprisingly Husband sought to include the country retreat as part of the matrimonial asset pool, the property was registered in Daughter's name after all. Daughter agreed with this assessment meaning that without more the country retreat would form part of the asset pool and be subject of a property division between the couple.

A matter of Trust

Prime Lawyers were instructed by Mum and Dad to oppose the inclusion of the country retreat in the asset pool. Evidence was prepared as to the family meeting, financial contribution towards the acquisition and the common intention and expectation of the parties that the country retreat would be held by Daughter upon trust. Submissions were made as to having the application as regards to the inclusion of the country residence dismissed or stayed until determination of proceedings which involved the declaration of trust over the country residence.

Court Orders

After hearing the evidence Daughter and Husband did not press the application to include the country retreat as part of the matrimonial asset pool. Orders were made for the country retreat to be transferred into the names of Mum and Dad.

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.

The Story

It was selling season and Mr A listed his property for sale by way of auction. The bidding was less than fierce, but the hammer fell after the property met reserve- 'SOLD!'. Mr A signed the contract, happy enough that the auction was a success. The standard terms of the contract provide that the deposit is paid on the making of the contract, and the buyer duly handed over a personal cheque for same.

The cheque bounced. Subsequently the agent received part payment of the deposit in cash. The buyer refused to pay any more.

Termination

Payment of the deposit under a contract for sale is an essential term of the contract. Breach of an essential term enables the vendor to terminate the contract. The buyer's failure to pay the deposit as at the making of the contract meant the vendor was justified in terminating the contract. Mr A did so and re-listed the property for sale.

Dispute and Court proceedings

Prime Lawyers commenced proceedings in the Local Court of New South Wales for recovery of the balance of the deposit unpaid together with a separate amount being Mr A's reasonable costs and expenses arising out of the buyer's default.

The buyer refused to accept that they were the purchaser under the contract. This was so as the buyer claimed to have been bidding on another's behalf. Examination of the signed contract revealed that the contract had been signed by the buyer after writing the name of a relative as the buyer. It was also said that the cash deposit was paid pursuant to a separate agreement, and as such not subject to the terms of the contract made on auction day. The buyer further submitted that any deposit forfeited should be credited against Mr A's costs and expenses, for otherwise such amount would constitute a penalty and be unenforceable.

The Law

The sale of real estate by way of auction is governed by the provisions of the Property, Stock and Business Agents Act 2002 and the regulations made under same.

Pursuant to the Regulations a bidder is taken to be bidding on the bidder's own behalf unless, before bidding, the bidder has given to the auctioneer a copy of a written authority to bid for or on behalf of another person. The buyer did not do so and as such the notation of writing a family member's name on the contract at the time of signing following the auction had no effect. The highest bidder was taken to be the buyer.

Clause 9 of the standard terms of a contract for sale provides that upon termination of the contract for the purchaser's default the vendor can keep or recover the deposit up to 10% of the purchase price, along with an election as to whether to sue for damages for breach of contract or for reasonable costs and expenses arising out of the purchaser's default. 

The forfeiture of deposit in these circumstances is not said to constitute a penalty and was recoverable (Luong Dinh Luu v Sovereign Developments Pty Ltd [2006] NSWCA 40).

Mr A's reasonable costs and expenses arising out of the buyer's default included the real estate agent's commission and marketing costs on the subsequent sale, rates and legal expenses (Hearse v Pallister [2008] NSWSC 504). These expenses are not classified as a penalty and are therefore recoverable. The deposit forfeited is not to be credited against the costs and expenses are are recoverable in full (June St Clare Buchanan v Catherine Elizabeth Dunstan [2007] NSWSC 248).

The Settlement

Prior to the hearing of the matter the buyer and Mr A came to a negotiated settlement favourable to Mr A. 

*. Some of the names and immaterial facts of this feature case study have been changed to safeguard the anonymity of our clients.