Nitopi v Translawcom Pty Ltd t/as Brander Smith McKnight [2017] NSWSC 1156

Supreme Court New South Wales

Medium Neutral Citation: Nitopi v Translawcom Pty Ltd t/as Brander Smith McKnight [2017] NSWSC 1156 Hearing dates: 21 March 2017; 24 March 2017 Date of orders: 24 March 2017 Decision date: 24 March 2017 Jurisdiction: Common Law Before: Rothman J Decision: 1. Vacate order 2 of 30 September 2016 and in lieu thereof insert a new Order 2 in following terms:

"2a.The Plaintiff pay $63,801.91 into Court by 4pm 28 March 2017;

b. Upon payment into Court of the amount of $63,801.91 the Defendant shall produce to the Plaintiff the files and documents kept in regard to acting for the Plaintiff in this Division in proceedings 2015/94733 and in order to avoid any controversy, if payment is made in accordance with 2(a) above, the documents shall be produced on or before 12noon, 29 March 2017."

2. By 4pm, 29 March 2017, the Defendant shall file and serve a schedule of documents not produced to the Plaintiff as a result of the alleged compliance with Order 1 of the Orders of 30 September 2016 and all other evidence upon which the Defendant will rely on the motions.

3. By 4pm 29 March 2017, the Plaintiff shall file and serve all evidence upon which it would seek to rely in the hearing of the motions for the production of the remaining items.

4. By 4pm, 30 March 2017 the Plaintiff and Defendant shall file and serve a written outline of submissions.

5. The matter be listed for hearing before the Registrar at 9am Friday, 31 March 2017 for allocation of an urgent hearing.

6. Costs reserved.

7. Orders shall be entered forthwith. Catchwords: JUDGMENT & ORDERS – Consent Orders – Construction – Note to Orders was representation by party as to payment of money by stated date from which the party cannot resile – purposive construction to resolve substantive issues defeated if payment to which Note 7 refers is not obligatory. Legislation Cited: Civil Procedure Act 2005, s 67 Cases Cited: Cassaniti v Paragalli [2006] NSWSC 50 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 Grey v Pearson (1857) 6 HLC 61; 10 ER 1216 Hadkinson v Hadkinson [1952] P 258 Jorden v Money (1854) 5 HLC 185 Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited; Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited (2015) 256 CLR 104; [2015] HCA 37 Prenn v Simmonds [1971] 1 WLR 1381 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Purcell v Bacon (1914) 19 CLR 241; [1914] HCA 86 Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Category: Procedural and other rulings Parties: Christina Francesca Pirrello Nitopi Translawcom Pty Ltd t/as Brander Smith McKnight Representation: Counsel: A Dyurdjevic (Plaintiff/Respondent) M Maconachie (Defendant/Applicant) Solicitors: Streeterlaw (Plaintiff/Respondent) Brander Smith McKnight Lawyers (Defendant/Applicant) File Number(s): 2016/290524