Practitioners may be aware of the ‘rule in Jones v Dunkel’ and the way this can impact the decision to call witnesses at trial. Practitioners might not be aware, however, of the intricacies of the rule and the way it ought be applied. A recent decision of the Supreme Court provides a useful caption of the rule and its relevant principles.

Among the more common forms of relief sought in civil litigation are claims for payment of debt and claims for damages. While these are distinct remedies with their own elements, they are at times liable to be conflated or confused. The decision of the Victorian Court of Appeal in Yang v Finder Earth Pty Ltd [2019] VSCA 22 illustrates how both the pleading of a cause of action and the framing of the relief sought can affect a party’s procedural rights. The decision serves as a reminder of the importance of clear and thoughtful pleading when formulating claims.

Where the owner of goods gives possession to a bailee and the bailee then wrongfully pledges the goods to a third party, is that third party liable to the owner for conversion of the goods? Will mere possession and control of the goods suffice to establish conversion, or is something more required? The Court of Appeal in Sell Your Gold Pty Ltd v Australian Diamond Trading Corporation Pty Ltd [2018] VSCA 355 considered those questions and, in doing so, raised concerns about the lack of clarity in the law and the pressing need for legislative reform.

In the context of contracts for the sale of land, it is quite common to see clauses permitting the purchaser to nominate a third party to which title is to be transferred. Less common (one would hope) are issues arising from this, such as whether a right to nominate has been validly exercised and whether the contract of sale ultimately has been novated. Such issues recently arose for the New South Wales Court of Appeal’s resolution in Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282.

Perhaps just as significant as the decision to commence a proceeding is the decision to discontinue it. While the discontinuing party may be liable to pay the other side’s costs, the matter is at the court’s discretion. The recent decision Supreme Court decision in Course v Hannan & Ors [2018] VSC 401 demonstrates some of the factors a court can consider when determining the question of costs of a discontinued proceeding.

An administrator appointed over a company is entitled to payment of his or her remuneration, expenses and costs incurred in carrying out the role. To that end, an administrator can be indemnified out of the company’s property and can hold a lien over that property to secure the indemnity if the company is subsequently wound up.

The Supreme Court has recently ruled on two questions arising from such a scenario: does the lien extend to all the company’s property, or only that which the administrator caused the company to hold? And where does the administrator’s indemnity rank with the company’s other debts?

The rules of most Victorian courts permit a party, in certain circumstances, to obtain discovery of material prior to commencing proceedings. This is especially vital in assisting a party to ascertain who, or by what cause of action, it can sue. Like many rule-based tests, there can be some confusion about the requirements, as well as the discretionary factors, for obtaining preliminary discovery. The Supreme Court in a recent appeal decision in Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391 has shed some light.

Legal professional privilege provides vital protection to communications passing between lawyer and client. It is no surprise, then, that the issue of waiver of privilege is often hotly contested. In a recent decision, the Victorian Court of Appeal considered whether the way a party had pleaded its case had resulted in an implied waiver of privilege. The Court’s decision provides a useful analysis of the law relating to waiver and the potential circumstances in which a pleading can give things away.

Where a party seeks to rely on another’s repudiation of a contract as a basis for suing, that party must show it has been ready, willing and able to comply with the contract. Matters can be complicated where the parties clearly disagree about how to interpret and comply with the contract, and even more so where the contract expressly requires the parties to use their best endeavours to see the contract fulfilled. The Court of Appeal in its recent decision in Bisognin v Hera Project Pty Ltd [2018] VSCA 93 has tackled these kinds of issues.

A caveator of land, when notified by the Registrar of Titles of the pending registration of an interest or transfer of the land, can seek a court order that such registration be delayed for a period of time. But what if the caveat itself is defective and cannot be fixed? The Supreme Court in TL Rentals Pty Ltd v Youth on Call Pty Ltd [2018] VSC 105 has recently clarified the law regarding the ability of the caveator to instead seek an injunction in such circumstances.

Where there has been a breach of contract, in what circumstances can the innocent party sue for damages for distress, anxiety and depression arising from the breach? What about the inconvenience caused by the breach? The Court of Appeal in the recent case of Archibald v Powlett [2017] VSCA 259 sheds some light on these issues.

Where seeking to recover land on the basis of a constructive trust arising from proprietary estoppel, when does that constructive trust arise? Does it arise when a court makes a declaration to its effect, or when the relevant cause of action accrues? And should the court consider a lesser remedy instead of declaring a trust? The Court of Appeal in McNab v Graham [2017] VSCA 352 answers those questions.