Supreme Court New South Wales Medium Neutral Citation: Hancock v Rinehart [2015] NSWSC 788 Hearing dates: In chambers Date of orders: 18 June 2015 Decision date: 18 June 2015 Jurisdiction: Equity Division Before: Brereton J Decision: No further undertaking required Catchwords: ORDERS – undertakings – where order expressed to be upon undertaking – whether order records undertaking given or is conditional upon undertaking being given Cases Cited: Hancock v Rinehart [2015] NSWSC 646 Category: Consequential orders (other than Costs) Parties: John Langley Hancock (first plaintiff) Bianca Hope Rinehart (second plaintiff) Gina Hope Rinehart (first defendant) Ginia Hope Frances Rinehart (second defendant) Hope Rinehart Welker (third defendant) Hancock Prospecting Pty Ltd (fourth defendant) Hope Downs Iron Ore Pty Ltd (fifth defendant) Representation: Counsel: C Withers w N Zerial & A Hochroth (plaintiffs) N Hutley SC w B. McClintock SC, C Bova & J Hutton (first defendant) RG McHugh SC w PW Flynn (second defendant) M Deutsch (solicitor) (third defendant) DB Studdy SC w C Colquhoun (fourth & fifth defendants) Solicitors: Yeldhams Price O'Brien Lusk (plaintiffs) Corrs Chambers Westgarth (first, fourth & fifth defendants) Gadens Lawyers (second defendant) Deutsch Miller (third defendant) File Number(s): 2011/285907 Judgment 1. HIS HONOUR: The Court has been asked to clarify the intent of Order 1 made on 28 May 2015, insofar as it is expressed to be "upon her undertaking to the Court …". The first defendant apparently contends that the order does not take effect unless and until such an undertaking is formally given, while the plaintiffs contend that the undertaking has been given and the order has immediate effect. 2. Bianca's solicitors have confirmed that if a further undertaking is required, it would be given. It is clear that Bianca regards herself as bound by the undertaking. In any event, by taking the benefit of the orders, Bianca would assume the burden of the undertaking. 3. But the order was intended to record an undertaking that had already been given. It was not a conditional order contingent upon an undertaking being given. 4. It is commonplace for an order to be expressed to be made "upon the undertaking of …". Perhaps the most common instance of this is an interlocutory injunction, made "upon the plaintiff giving to the court the usual undertaking as to damages". When the Court so expresses an order, it is formally recording an undertaking which it regards as having been proffered, and not making a conditional order the ultimate effect of which would depend on whether or not the plaintiff subsequently decides to give the undertaking. If the relevant undertaking is not given, the court does not pronounce orders conditional on the undertaking being given, but refrains from making the orders at all. 5. I regarded the undertaking in question as having been proffered by Bianca's evidence, summarised in the principal judgment at [274]-[275]. Had I not done so, I would have sought confirmation that the undertaking was given before pronouncing the orders. The order records that it has been given, not that it is anticipated. The order is not conditional, and no further undertaking is required. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2015