What does it mean for evidence to be ‘not admissible’?

In the case of Sandpiper Developments Pty Ltd v Main Beach Developments Qld Pty Ltd [2024] VSC 469, the plaintiff decided not to proceed with its claims. When the question of costs arose, the defendants sought a non-party costs order. The Court considered, and summarised, a number of principles relevant to that issue.

What to make of a clause in a contract specifying that an amount owing following a breach can be calculated according to the terms of the contract?

Often when seeking to imply a term in a contract, a party will claim that the term should be implied because it is ‘necessary to give business efficacy’ to the contract. What might this mean, in practical terms?

In the context of a property co-ownership dispute, the Victorian Civil and Administrative Tribunal rejected a claim that beneficiaries in a unit trust, which trust held land equally as between one pair of beneficiaries and another, themselves held an ‘interest in land’ for the purposes of standing to seek an order forcing its sale.

In civil cases, facts must be proven on the balance of probabilities to the court’s actual persuasion. How, then, should a court assess whether a witness is telling the truth? In this blog post, I describe some of the factors a court might consider.

The New South Wales Court of Appeal, in a split decision, has allowed an appeal against a judgment granting equitable set-off. The Court’s decision provides a useful overview of the law of equitable set-off. In overturning the trial judge’s decision, the Court also considered the scope and application of the so-called Brickenden principle which prohibits speculation by a defaulting fiduciary as to what would have happened had there been no default.

The defendants in a proceeding made a Calderbank offer to settle four days prior to trial — including a weekend. The plaintiffs rejected their offer, went on to lose at trial, and were ordered to pay indemnity costs as a consequence of the offer’s rejection. The decision in SSABR Pty Ltd v AMA Group Ltd (No 2) [2024] NSWSC 24 explains why.

Where a third party receives property following a breach of trust or a breach of fiduciary duty, equity may intervene to claw back what they have obtained — but only where the third party had the requisite knowledge of its source. In Goway Travel Pty Ltd v Critchley [2024] NSWSC 2, the Court identified the way in which a knowing recipient’s degree of knowledge at law can evolve, in this case progressing from constructive knowledge to actual knowledge.

Where an expert has used notes as the basis for expressing a verbal opinion to briefing solicitors, to the extent they are not necessarily used in the preparation of an expert report can those notes be privileged?

In Patel v Sengun Investment Holdings Pty Ltd [2023] VSCA 238, the Victorian Court of Appeal has held that a document styled as a ‘Heads of Agreement’ for the sale of land was capable of specific performance as a binding contract. This was in circumstances where the Court accepted the document’s characterisation as a contract not for the purchase of the subject property but for a ‘call option’ for its potential later purchase.

What does it mean to ‘ratify’ an agent’s breach of authority? And what might the consequences of ratification be for the principal, including in terms of the principal’s ability to later litigate a related claim? This case note explores those issues in light of the New South Wales Supreme Court decision in Shao v Crown Global Capital Pty Ltd [2023] NSWSC 820.