Name 5 things that an applicant for an urgent interlocutory injunction must establish to obtain the order.
The test is outlined in Castlemaine Toohey v South Australia and is:
- Urgency, otherwise the matter can wait.
- Make out a prima facie case / demonstrate that there is a serious question to be tried: American Cyanamid v Ethicon Limited;
- Identify the legal/equitable rights in respect of which relief is sought and for which damages will be inadequate; and
- Demonstrate that the balance of convenience favours granting relief.
Balance of convenience factors include:
- Necessity: How necessary is it that relief is granted?
- Utility: Will an order preserve the subject of the injunctive relief from destruction / harm?
- Fairness
- The nature of the rights in dispute: Is the dispute over something that might be destroyed or disposed of if the injunctive relief is not granted?
- The nature of the allegations: What is alleged will happen if the injunctive relief is not granted?
- The effect of the grant or refusal;
- The sufficiency of the alternatives.
What sections of the Supreme Court Act, Practice Notes and District Court Act govern granting injunctive relief?
s. 66 Supreme Court Act
SC PN CL 5
SC PN Eq 8
s 140 District Court Act, but only to prevent any apparent or threatened nuisance or prevent a breach of a negative covenant in a contract for which consideration is less than $20,000.
What sections of the Supreme Court Act, Practice Notes and District Court Act govern granting injunctive relief?
s. 66 Supreme Court Act
SC PN Eq 8
s 140 District Court Act, but only to prevent any apparent or threatened nuisance or prevent a breach of a negative covenant in a contract for which consideration is less than $20,000.
What must an applicant show to obtain a freezing order?
What are the key cases in relation to freezing orders?
The applicant must show that:
- They have a prima facie case against the defendant on an accrued or prospective cause of action: r 25.14(1); and
- There is a danger that the applicant, if successful in the primary proceedings, will not have the judgment / prospective judgment satisfied because the defendant will do something to dispose of / destroy the judgment sum: r 25.14(5) UCPR.
- Number two above requires consideration of the following factors:
(a) The level of control that the respondent has over the subject assets; and
(b) Whether there has been an expressed intention to dispose of the assets, whether specifically to frustrate judgment or just during the normal course of using the assets; and
(c) The rarity of the subject assets. - Under r 24.14(5) UCPR, where an order is sought against a third party, the applicant must show that there is a danger that judgment will be wholly or partly unsatisfied because:
(a) The third party has the power of dispossession over the assets; or
(b) The third party has control or influence over the subject assets; or
(c) As a result of the court process, the third party may be obliged to disgorge assets or contribute towards satisfying the judgment / prospective judgment.
The relevant cases are:
- Patterson v BDR Engineering; and
- Haydon v Taplizsky.
What type of evidence will a court look for to support an application for a Mareva (freezing) order?
A prima facie case of fraudulent misappropriation of assets or serious wrongdoing will readily support an application for a Mareva order, but mere assertions that the defendant is likely to put the assets beyond the reach of the plaintiff will not be enough: Patterson v BDR Engineering.
What should an affidavit in support of an Anton Piller (search) order set out?
Where is this outlined?
The requirements of an affidavit in support of an anton piller order are set out at paragraph 8 of SC Practice Note Gen 13 as follows:
- A description of the thing or category of things being searched for;
- The basis for the applicant’s belief that the thing is at the address identified;
- The basis for the applicant’s belief that the respondent will destroy or otherwise make that thing unavailable;
- The address to be searched, and whether it is residential or business;
- The details of likely occupants of the premises, including whether there are likely to be any “vulnerable people” at the premises when searched;
- The name, firm details and litigation experience of a solicitor who consents to supervising the execution of the search order and any ancillary orders made by the court; and
- The prejudice, loss or damage likely to be suffered by the applicant if the order is not made.
Note: SC PN Gen 13 also states that ordinarily, the order should be served between 9:00 am and 2:00 pm on a weekday to allow the respondent to obtain legal advice.
What are the 5 circumstances under which an appellate court will intervene in a decision of an inferior court.
What is the case authority?
The appellant must show that the judge in the inferior court did one of the following:
- Acted upon a wrong principle;
- Took into account an irrelevant consideration;
- Failed to take into account a relevant consideration;
- Made a relevant error of fact; or
- Reached a decision that is plainly unreasonable or unjust.
The authority is House v R.
Provide 6 examples of when leave to appeal from a decision of a single judge of the Supreme Court is required.
An appeal of a single judge of the Supreme Court requires leave in the following circumstances, as per s 101(2) of the Supreme Court Act:
- If the judgment sum is less than $100,000;
- From an interlocutory order or decision;
- From a decision on costs only, which are in the complete discretion of the court;
- From an order or judgment correcting a clerical error or mistake (i.e. the slip rule);
- From orders made with the consent of all parties; and
- An order refusing leave to a vexatious litigant to commence or carry on proceedings.
- A Judgment or order for the winding up of a corporation.
On what grounds may a party appeal from a civil decision of the Local Court as of right?
s 38 Local Court Act states that, subject to Division 4 LCA, all decisions of the Local Court in its civil jurisdiction are final.
In Division 4, s 39 states the following appeals lay as of right:
- s 39(1): A party may appeal from the General Division of the LC to the SC, but only on a matter of law; and
- s 39(2): A party may appeal from the Small Claims Division of the LC to the District Court but only on the basis of a lack of jurisdiction or denial of procedural fairness.
When can a party appeal from the Local Court with leave?
Section 40 Local Court Act governs those appeals that are available (only from General Division, not Small Claims Division) with leave (note they are to the Supreme Court):
- s 40(1): On a ground of mixed law and fact;
- s 40(2)(a) - (c): order/judgments in relation to costs, orders made by consent or interlocutory orders.
Appeals from the District Court.
Appeals from the District Court are governed by s 127 of the District Court Act.
s 127(1) DC Act states that an appeal from the District Court lies to the Supreme Court.
Under s 127(3), all appeals from the District Court are as of right, except for those appeals outlined in s 127(2) DC Act, which require leave.
The appeals that require leave from the District Court to the Supreme Court under s 127(2) DC Act are appeals from:
- Judgment/orders as to costs only;
- Interlocutory orders;
- Judgments for sums less than $100,000;
- Judgments made by consent of the parties; and
- Summary judgment.
What Part of the UCPR applies when seeking an order that a party submit to a medical exam, rehabilitation examine, or an order for the inspection of property?
Part 23 UCPR
What is a letter of request and what section of the UCPR applies to it?
A letter of request in this context is a letter to foreign judicial authorities requesting that evidence be taken of a person.
It is governed by rule 24.5 UCPR.
What UCPR Part and specific rules apply when an order is made for the examination of a person in some place other than a court (which could be within or outside NSW)?
UCPR Part 24 - Taking evidence otherwise than at trial.
The specific rules that apply are rules 24.1, 24.3, 24.4, 24.6 - 24.20 UCPR inclusive.
What rules outlines the ‘usual undertaking as to damages”?
Rule 25.8 UCPR
What rule can an applicant rely on when seeking an order for interim preservation before the commencement of proceedings?
Rule 25.2 UCPR
Can a court order that property in dispute in proceedings that is of a perishable nature be sold?
If so, what UCPR rule applies?
Yes.
Rule 25.4 UCPR.
What are the relevant cases and their principles that apply to Freezing Orders?
Mareva - the case for which the order is named after.
Ninemia Maritime Corp v Trave: A freezing order should be considered an extraordinary order and the applicant should have a good arguable case on an accrued or prospective cause of action.
Third Chandris Shipping Corporation v Unimarine SA: The type of evidence that the court will require to establish that there is a danger that the judgment will be partly or wholly unsatisfied includes a prima facie case of fraudulent misappropriation or serious wrongdoing, but mere assertions that the plaintiff is likely to put the assets beyond reach will not be enough.
Also quote Heydon v Taplizsky and Patterson v BDR Engineering when outlining the requirements at r 25.14(1) and 25.14(4).
What Supreme Court Practice Notes apply to urgent applications?
SC PN CL 5 - in the common law division and SC PN Eq 8 in the equity division.
Under what UCPR rule may the Supreme Court order a party to sell land?
What are the restrictions?
Rule 27.1 UCPR.
The restrictions are that:
- the proceedings must be in the Supreme Court in relation to land;
- Other than proceedings in the Common Law Division for possession of land.
What Part of the UCPR applies to the appointment of receivers?
Part 26.
Under what Part can a court order that questions of liability and quantum (or any other questions) be decided separately?
Part 28
Rules 28.1 - 28.4
Under what rule may the court order the consolidation of separate proceedings?
Rule 28.5 UCPR.
What rule will apply if you get to TRIAL and the opposing party has just not shown up?
Rule 29.7 UCPR
