Gooley v Gooley (No 2) [2020] NSWSC 1018

Supreme Court New South Wales

Medium Neutral Citation: Gooley v Gooley (No 2) [2020] NSWSC 1018 Hearing dates: 4 August 2020 Date of orders: 5 August 2020 Decision date: 05 August 2020 Jurisdiction: Equity - Expedition List Before: Williams J Decision: The plaintiffs are released from paragraph 1(a)(ii) of their undertakings given to the Court on 8 July 2020. The defendant's notice of motion filed on 29 July 2020 is dismissed. Catchwords: PRACTICE AND PROCEDURE – undertakings – compliance and enforcement – where Court permitted the plaintiffs to proffer certain undertakings, failing which the Court would appoint an administrator pendente lite – where plaintiffs proffered those undertakings, including an additional undertaking that was not included in the reasons for judgment – where additional undertaking formulated by defendant and proffered by mistake of the plaintiffs' legal representatives – where plaintiffs subsequently failed to comply with that additional undertaking – where defendant made further application for appointment of administrator pendente lite based solely on plaintiffs' failure to comply with additional undertaking – unjust for consequences of the failure to comply with additional undertaking to be visited on plaintiffs PRACTICE AND PROCEDURE – undertakings – application to be released from undertakings – where plaintiffs proffered certain undertaking to the Court by mistake – whether the plaintiffs should be released from undertaking proffered by mistake – plaintiffs released from undertaking Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Probate and Administration Act 1898 (NSW), s 73 Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 Gooley v Gooley [2020] NSWSC 798 Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8; [2018] HCA 51 Re Luck (2003) 203 ALR 1; [2003] HCA 70 Category: Procedural and other rulings Parties: Aleta Joy Gooley (First Plaintiff) Melinda Louise Foley (Second Plaintiff) Brett Raymond Gooley (Defendant) Representation: Counsel: Mr E G Romaniuk SC (Plaintiffs) Ms T Jonker (Defendant)