Nicholas Arthur Stokes v Molly Harriss Toyne [2021] NSWSC 1049

Supreme Court New South Wales

Medium Neutral Citation: Nicholas Arthur Stokes v Molly Harriss Toyne [2021] NSWSC 1049 Hearing dates: 18 August 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Jurisdiction: Equity - Duty List Before: Rein J Decision: See [26], [27], [31], [32] and [35] Catchwords: CIVIL PROCEDURE — Implied undertakings in respect of evidence served by the Defendant in these proceedings — Release from — Special circumstances — Plaintiff seeks to use that evidence in answer to proceedings in the Federal Circuit Court of Australia and District Court of New South Wales commenced by the Defendant — Consideration of whether the implied undertaking applies to the evidence — Consideration of whether, if the Harman undertaking applies to the evidence, the Plaintiff should be released from that undertaking — Held: Implied undertaking does not apply to the evidence — Plaintiff permitted to use the evidence in the Federal Circuit Court of Australia and District Court of New South Wales COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings — Consideration given as to whether a costs order should be made in respect of the Plaintiff's application — Held: there be no order as to costs Legislation Cited: Bankruptcy Act 1966 (Cth) Conveyancing Act 1919 (NSW) Cases Cited: Benecke v National Australia Bank (1993) 35 NSWLR 110 Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567 Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Frigger v Trenfield (No 5) [2020] FCA 827 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 Nicholas Arthur Stokes v Molly Harris Toyne [2019] NSWSC 274 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 R, On The Application of John Patrick Davey v Ronald David Silverstein [2020] VSCA 233 Riddick v Thames Board Mills Ltd [1977] QB 881 Springfield Nominees Pry Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 7) [2020] NSWLEC 140 Texts Cited: Nil Category: Principal judgment Parties: Nicholas Arthur Stokes (Plaintiff) Molly Harriss Toyne (Defendant) Representation: Counsel: Mr N Oram (Plaintiff)