Civil Litigation – Final Notes

Reflection on learning
1) Reflection on learning
a. learning process
b. individual strengths and weaknesses
c. opportunities for further development
d. relevance of learning to career

I think the civil litigation course has been very interesting for me. Very complex process, you’re trying to
navigate these court processes, client instructions, client expectations, the expectations of the court –
which could be very emotional but also very analytical process + strategic

 Made me realise that the advocacy aspect of civil litigation + navigating the appropriate avenues in
court is very strategic (the most appropriate forms, the most appropriate method of enforcing a
debt)
o Very strategic
o formalises client’s position, may impact on debtor if letter comes from lawyer.

 Being in an in-house graduate role at the moment, although there isn’t a lot of opportunity to be
exposed to Advocacy experiences in Court directly, I do feel like we deal with several disputes –
anything from an unpaid debt to persons alleging repudiation of contracts – civil litigation has been
v usual
 Made me realise that there are certain aspects of the civil litigation course that I enjoyed – or would
be more suited towards – than others.
o I think I definitely enjoyed the beginning stages of a case – analysing whether there are any
merits in the case, its strengths and its weaknesses, what the opposing party might be able
to argue  research element of different avenues of law  consideration of client’s
position, that they don’t want to spend a lot of time and money on litigation, want a speedy
and cost efficient solution (which lends to my interest in ADR, mediation, negotiation).

1.1 Assessing the merits of a case

Steps in litigation

1. Obtain instructions
- consider client conflict rules
- take all documents, exact amount of debt outstanding, account history, all details
- ASIC search, info search etc.
2. Send letter of demand (if no reply)
- formalises client’s position, may impact on debtor if letter comes from lawyer.
- debtors who are willing but unable to pay costs may be motivated to reach a settlement
- good faith attempt to resolve a matter
3. informal settlement negotiations/ADR options

Start the court process – originating process

4. Prepare a statement of claim (Form 3A, UCPR 6.2)
- party information
- material facts
 - issues to be decided by the court
- relief claimed by the plaintiff
- costs
5. File statement of claim (can be done online UCPR Part 3 and r 4.10)
6. Service statement of claim within 6 months of filing (UCPR r6.2(4) and rr10.20, 10.21)
- must be served personally
- substituted service if you can’t find the defendant
- you can put the document in front of them and say “you have been served”, if you identify the
defendant correctly
7. Prepare affidavit of service (Form 41, UCPR r 35.8)
8. Wait 28 days (UCPR r6.10)
9. Has any payment or acknowledgement been received? Has an Appearance or Defence been filed?
 If Yes, then;
o Proceedings are listed for hearing
o Interlocutory proceedings (e.g. particulars, discovery?)
o Hearing
o Judgement
o Payment or enforcement (Task 3)
 If No, then Default Judgement
o Prepare & File (UCPR r16.3)
 Form 38 Notice of Motion Default Judgement for Liquidated Claim
 Affidavit in support of application (part of Form 38)
 Form 41 Affidavit of Service of Statement of Claim
o Defend judgement
 request for further and better particulars
 can still file defence outside 28 days but risks creditor obtaiing default judgement
 can serve cross claim

Can amend pleadings within 28 days without leave of the court, but it is always a good idea to ask other
lawyer’s consent to avoid adverse judgements

10 – summary disposal
- plaintiff/ cross claimant obtains judgement without a defended hearing  occurs when there is evidence that
there is no defence to the claim
11 – frivolous or vexatious proceedings
- court can dismiss proceedings generally
12 – offers of compromise
- UCPR Pt 20 Div 4 and pt. 42 Div 3
- formal offer in writing to settle a matter

 For all, report to client, forward account

The Proof Making Model

The model encapsulates a systematic approach to analyses the cause of action, issues of fact and law on
the evidence available in a matter.

There’s 5 levels to the analysis

 Level 1: Legal source (common law or statute)
 Level 2: The cause of action (e.g. breach of contract, s18 ACL)
 Level 3: The component parts of the cause of action (elements)
 Level 4: The material facts only
o direct facts
 o indirect facts: don’t relate to the elements of a case but can be used to prove other facts
 Level 5: Evidence (oral, written, affidavit, other)
o Propositions of fact vs. propositions of law
o Proofmaking model and the defendant
 For the defence, all 5 levels apply (particularly in a civil claim where the defendant
also has responsibilities of proof)
 Consider:
 whether it’s necessary to respond to all the facts raised by the plaintiff; and
 identify the facts of any alternative defence

LPUL Application Act sch 2 cl 4(1): The provision of legal services by a law practice without reasonable
prospects of success does not constitute and offence, but is capable of being unsatisfactory professional
conduct or professional misconduct

CPA s99: Courts have the power to make a costs order against a legal practitioner where:
 There has been serious neglect, incompetence or misconduct by the practitioner; or
 costs were incurred improperly or without reasonable cause because of the actions of the practitioner

Task – Lyn Hoeben (t/a Trouble Free Events) v Happy Mercury Festivals Pty Ltd

 must have reasonable prospects of success  otherwise unsatisfactory misconduct or professional

misconduct (LPUL Sch 2 Cl 4(1))
 prospects of recovery
 GST consequences of court orders / settlements

The Parties
Individual acting on behalf of their companies
 ASIC Extract
 Happy Mercury Festivals is issued with an Australian Company Number to which Robert McGinty is
a Director and joint-shareholder
 Trouble Free Events (ABN)

Level 1: Source of law – law of contracts

Level 2: Cause of action – breach of contract

Level 3 Level 5
Level 4 Facts
Elements Evidence
Contract Offer and acceptance: Lyn Hoeben (“Plaintiff”) trading as Trouble Free 1 Statement of Lyn, paras 4
(elements of Events and Robert McGinty acting on behalf of Happy Mercury Festivals
Pty Limited (“Defendant”) met on the 2nd. Robert proposed Lyn provide
–9
formation) services in exchange for monetary compensation to which Lyn agreed. 2 Letter dated 3rd from Lyn
Hoeben laying out costs
Offer was received in the follow-up email attaching a formal contract
was sent by Lyn on 3rd. 3 Letter dated 7th from
Robert McGinty
That offer was accepted in a letter by Robert on the 7th
confirming agreement to
the services and enclosing
a cheque for the deposit
4 ASIC extract
Intention: The Plaintiff and Defendant are business entities acting in a 5 Letter dated 3rd
business context. The promises between the parties were made for
consideration. 6 Letter dated 7th
7 Statement of Lyn, paras
There was no express intention to be merely ‘honour’ bound.
 4–9

Consideration: The Defendant promised to pay the Plaintiff the sum of 8 Letter dated 7th
$163,212.50 (inclusive of GST) for the security and rubbish clean-up
services. 9 Statement of Lyn, paras
4–9

Consent: Satisfied and received via email 10 Letter dated 7th

Legal capacity: Assumed for both parties

Plaintiff would provide staffing, services and rubbish for Extravaganza 11 Letter dated 3rd
Folk at and one each of the days of the “Extravaganza Folk and Blues
Festival” from 20th – 24th (inclusive) 12 Letter dated 7th

1 45 security guards from 2pm to 1am (11 hours) at

$40.00 per hour
2 25 people for collecting and removing of rubbish
between 2pm and 1am (11 hours) at $25.00 per
hour
Terms of 3 Rubbish dumping at $3,000.00 per day
contract
Defendant would pay the deposit of $16,321.25 upfront prior to the 13 Letter dated 3rd
festival
14 Letter dated 7th
15 Statement of Lyn, paras 4
–9
Defendant would pay the remainder of the amount 15 days after the 16 Statement of Lyn, para 7 –
end of the event ($146,891.25)
12
17 Letter dated 3rd
18 Letter dated 7th

The Plaintiff provided the security and rubbish clean-up services at and 19 Statement of Lyn, para
on each day of the “Extravaganza Folk and Blues Festival” on 20 to 24th
September 2021 10 – 12
20 Letter dated 24th
4 45 security guards from 2pm to 1am
5 25 people for collecting and removing of rubbish between 2pm
Performance and 1am
(by both 6 Rubbish dumping
parties)
Defendant would paid the deposit of $16,321.25 upfront prior to the 21 Statement of Lyn, para
festival
10 – 12
22 Letter dated 7th

Defendant did not pay the balance of the purchase price of $146,891.25 23 Statement of Lyn, para
Breach of within 15 days after the end of the festival
contract 13 – 15

Damages Liquidated sum – because we are able to determine precisely what the 10 Tax invoice no. 0536
damages will be as set out below

7 45 security guards from 2pm to 1am (11 hours per day over 5 days)
at $40.00 per hour – loss of $99,000.00
8 25 people for collecting and removing of rubbish between 2pm
and 1am (11 hours per day over 5 days) at $25.00 per hour – loss
of $34,375.00
9 Rubbish dumping at $3,000 per day (5 days) – loss of $15,000.00

In addition to GST in the amount of $14,837.50, the total purchase price

 for the above services is $163,212.50.

There is no entitlement to claim interest, although there is a statutory

right

The Plaintiff’s liquidated damages are $146,891.25 (plus costs and

interests).

1.2 Drafting and initial letter of advice

- note Schedule of Limitation periods
- Note costs – must disclose (LPUL s 174) the basis on which legal costs will be calculated and an estimate
of total legal costs
o ordinary costs:
o party/party costs: one party pays the other party costs (LPUL Sch 1 Pt 2 Item 4)
o solicitor costs:

Court Limits
Local Court District Court Supreme Court Federal Circuit (not
- up to $100K civil - all motor accidents - pretty much NSW court)
(unless claim for - claims up to $750K  unlimited - shares
damages arising most appropriate for - civil claims jurisdiction with
for personal the Plaintiff here exceeding $750K family court; fed
injury or death (claiming under the court for admin,
where the limit is threshold, bankruptchy,
$60K) $163,,212.50) consumer
- small claims: up protection,
to $20K migration,
- general division: privacy laws etc.
$20K - $100K

ORIGINATING PROCESS: PLEADINGS

- Approved forms to use are in CPA s 17
o first impression of the judgement
o sets out all material facts (used in Local, District and Supreme)
o liquidated and unliquidated claims (UCPR r 6.3)
 liquidated: when the amount is known / can be estimated (e.g. debt)
 unliquidated: e.g. personal injury claim where quantum of damage and amount recoverable
needs to be assessed by thec ourt
o interest rate (specified in UCPR r6.12(8) or 4% above RBA rate)
o costs payable
o particulars  note that D can ask for further and better particulars (but this doesn’t stop the
time limit clock from running)

Statement of Claim (UCPR 6.3)

- Formal document that contains, in summary form, a statement of all the material facts that a party
relies on BUT not the evidence
- relief/remedy claimed
- any specific provision in an Act relied upon
- material facts only  use proofmaking model
The first paragraphs of any Pleadings (under “Pleadings and Particulars”) should establish that the Plaintiff
and Defendant have legal standing to sue and be sued.  private rights and interests will be effected
 Always include full and correct names of the parties with their ABN/ACN
 Failure to properly name the Defendant may mean they will not respond (e.g. it’s not me!)
 Do not use a narrative form of writing, no embellishment such as explaining what happened in detail
or suggesting what the Defendant may have felt or thought or an opinion as to how they behaved (e.g.
neglected/refused to pay)
 Bare facts only (Level 4 PPM)
 Level 5 PPM has no place in the SoC
 Here, evidence will consist of the invoice, correspondence exchanged between parties, affidavits of
conversations
 Particularise the Agreement/Contract and Loss and Damage
 In its defence, the Defendant can agree with the Plaintiff’s facts or object to them and put their version
of events in their Defence.
o Pleadings and Particulars: start by saying that they entered into a contract (i.e. on X (date),
by oral agreement and in writing the P and D entered into an agreement whereby the P
would provide cleaning and security services (a brief description)
o Then, under “particulars of agreement”, set out the agreement in detail as per the
information in your file.
 Say what happened (performance). What did P and D do
 Then say D breached the Agreement by failing to pay
 Then say, “as a result of the Defendant’s breach of the Agreement, the Plaintiff
suffered loss and damage”
o Under “particulars of loss”: list the loss in detail
o Final para: make the claim. e.g. Plaintiff claims loss and damage plus interest plus costs.

******

Summons (UCPR r 6.4)

o sets out the relief or orders sought. sometimes affidavits need to be filed e.g. rule 6.4
Applications
o generally a brief document summarising the action followed by more detail in the form of a further
pleading/affidavit evidence (e.g. used in Federal Court)

FILING AN APPEARANCE/DEFENCE
- served within the 28 days after statement of claim is served upon you (UCPR r 14.3)
- by the return date stated, if a summons is issued (UCPR r 6.10(1)(a))
- filed in the same registry and in which the originating process was filed (UCPR r 4.13)
- state either admit, not admit, deny, does not know or ‘does not know and therefore cannot admit or
deny’ in response to whatever is served upon you

DEFAULT JUDGMENT – If defence / interlocutory etc isn’t filed within the time limit
- Form 38 Notice of notion – default judgement (liquidated)
- Affidavit of service (Form 41)

CLAIMS AND CROSS CLAIMS

- Form 9/10 in Supreme/District/Local (statement of claim or summons)

AMENDING THINGS
- without leave at any time within 28 days after filing the statement of claim
- cannot amend after a date has been fixed for trial unless the court otherwise orders (UCPR r 19.1)
LETTER OF DEMAND
- done because you need to take genuine steps to resolve a dispute per Civil Dispute Resolution Act s
4(1A)
- go through proofmaking model on your own

letter of advice to client

proposed cause of action s 174(3) LPUL client has to understand the course of action (ASCR r7: assist client
to make informed choices about the action to be taken)

Task – Letter of Advice Structure

1. Background – about the client, what has happened, and if someone else picks up the file (sets the
scene for the advice to follow)

“Robert McGinty is the sole director of Happy Mercury Festivals Pty Ltd (HMF). You entered into a contract
for HMF for the supply of cleaning and security services for the Extravaganza Folk and Blues Festival to be
held over 5 days in Hamilton. There was no formal contract, however you have provided us with
correspondence and a statement which confirms that both parties had an agreement and is evidence that a
contract was formed. HMF paid a deposit and you duly performed the work as agreed. You gave HMF a
tax invoice for the balance of monies however Mr Mc Ginty, the sole directors of Happy Mercury Festivals
Pty Ltd indicated he did not intend to pay the invoice – it has not been paid to date. You have attempted
to contact Mr McGinty numerous times without success.

2. Our advice – do they have a claim, cause of action, what is the law, what can they claim (damages,
interest and costs), prospects of success (if known)

a. What is the law

i. Key issues in simple terms
ii. cause of actions
iii. eleemnts to be proved
iv. legal principles
v. application to facts
b. What can they claim? (damages, interest and costs)
c. Prospects of success + recommended course of action: areas of weaknesses, possible
defences,
d. Dispute resolution and litigation – ADR options, litigation as a last resort (ASCR 7.2)
e. court process
f. Time limits – limitation date and consequences if no proceedings filed
i. 6 years from the breach of contract in this case
ii. Consequence of not commencing proceedings in time  statute barred and
prevented from commencing court proceedings to pursue the matter if a Statement
of Claim is not filed within 6 years
iii. Lawyers have been found guilty of prof. neg. if the consequences have not been
explained to the client
3. Legal costs – cost agreement enclosed, % costs recoverable from defendant
a. Suggest to client that you have made a preliminary estimate and that you will notify your
client of any changes
Set out the damages claimed in full
4. Way forward – what am I going to do, what I want the client to do (bring in docs, witnesses) to progress the
matter
a. Give a time frame to compel the client to take action
 b. Tells the client you will be in touch with them again
c. e.g. please provide your financial records within 2 weeks. When done so, please contact the office to
make a further appointment to discuss.

Legal Solicitors
10 Smyth Street
Hamilton NSW 2303

14 March 2022
Ms Lyn Hoeben
Trouble Free Events
1 Smyth Street
Hamilton NSW 2303
Dear Lyn,
Re: Trouble Free Events -v- Happy Mercury Festivals Pty Limited – Breach of Contract
Thank you for your instructions to act on behalf of Trouble Free Events (“Trouble Free”) in your contract
dispute with Happy Mercury Festivals Pty Ltd (“Happy Mercury”).

We confirm that we have received your signed Costs Agreement (“Retainer”) on behalf of Trouble Free.
We reiterate that the scope of this Retainer is limited to the following:
1. to act for Trouble Free in relation to a breach of contract action against Happy Mercury including providing
advice on the prospects of success of the matter; and
2. if instructed, to prepare, issue and serve a Statement of Claim in the District Court of NSW; and
3. if the matter is undefended, obtain default judgement; or
4. if the matter is defended, prepare for hearing, and brief counsel (if necessary) to attend the hearing,
negotiated settlement or arbitration of this matter.

A. Background Lyn Hoeben t/as Trouble Free Events v. Happy Mercury [Note: sets the scene for the
advice to follow but informs the reader as to what the matter is about]

“Robert McGinty is the sole director of Happy Mercury Festivals Pty Ltd (HMF). You entered into a
contract for HMF for the supply of cleaning and security services for the Extravaganza Folk and Blues
Festival to be held over 5 days in Hamilton. There was no formal contract, however you have provided
us with correspondence and a statement which confirms that both parties had an agreement and is
evidence that a contract was formed. HMF paid a deposit and you duly performed the work as agreed.
You gave HMF a tax invoice for the balance of monies however Mr Mc Ginty, the sole directors of Happy
Mercury Festivals Pty Ltd indicated he did not intend to pay the invoice – it has not been paid to date.
You have attempted to contact Mr McGinty numerous times without success.

B. Your Instructions
You have instructed us as follows:
1. You entered into an oral agreement with Robert McGinty (director of Happy Mercury), to provide the
following security and clean-up services for his “'Extravaganza Folk and Blues Festival” (“Festival”) being
held from 20th to 24th September 2021 for the total sum of $163,212.50 (including GST):
 a. 45 security guards from 2pm to 1am (11 hours) for each of the five days of the Festival at
$40 per hour;
b. 25 people for collecting and removing of rubbish between 2pm and 1am (11 hours) for
each of the five days of the Festival at $25 per hour;
c. Rubbish dumping for each of the five days of the Festival at $3,000 per day.

2. Robert McGinty promised to pay an upfront 10% deposit ($16,321.25) prior to the commencement of the
Festival, and that the remaining balance of $146,891.25 would be paid within 15 days of the end of the
Festival.

3. Happy Mercury made the 10% deposit on 7 September 2021. However, Happy Mercury has not paid the
balance of the purchase price within the 15 days and has not made payment to date.
Please find enclosed your statement dated 13 March 2022 setting out these instructions in full. Kindly
contact office is you wish to amend your statement.

C. Breach of Contract
Based on the facts you have provided us, we believe that Trouble Free has good prospects of successfully
suing Happy Mercury for breach of contract. It will be our case that a contract was formed between
Trouble Free and Happy Mercury on 7 September 2021 by way of Happy Mercury’s letter of acceptance
enclosing the 10% deposit.
Happy Mercury partly-performed the contract when they paid the 10% deposit. Trouble Free then
fulfilled its obligations under the contract by providing the agreed services on each of the days of the
Festival. This performance gives rise to Happy Mercury’s obligation to pay the remaining balance. By
failing to pay the balance of the purchase price within 15 days after the end of the Festival, and
continuing not to pay, Happy Mercury has failed to perform its contractual obligations. This performance
gives rise to Happy Mercury’s obligation to pay the liquidated damages calculated in Part A.

D. Possible Defence & Potential Issues

Happy Mercury may potentially argue that due to poor weather, not all contracted services with Trouble
Free were required. However, on the available facts, no terms have been specified in this contract,
neither expressly nor impliedly, that provide for a variation of services, dependent on weather conditions
on the days of the Festival.
There is also a potential that even in the circumstance where Happy Mercury admits to this breach,
Happy Mercury may claim to be insolvent or bankrupt and unable to pay the liquidated sum. It may be
useful to consider freezing the company’s assets or obtaining an order from the Court which prevents the
unnecessary discharge of Happy Mercury’s assets.

E. Court Proceedings
4. Letter of Demand
The first step for us at present to send a letter of demand to Happy Mercury, requesting payment of the
outstanding sum within a set timeframe. This is a necessary and important step that evidences your good
faith in attempting to resolve the matter before commencing proceedings. If Happy Mercury responds to
the letter of demand in good faith, we advise that you arrange some informal meeting with a
representative of Happy Mercury to attempt to negotiate a mutually satisfactory solution.

This is important because while we do consider that you have reasonable prospects of success at the
District Court of NSW, proceedings may be lengthy, costly and deeply harm your business relations with
Robert McGinty. It is worth considering avenues of alternative dispute resolution and informal
settlement to resolve your claim prior to commencing proceedings. Such avenues include negotiations or
mediations with Happy Mercury. These processes are more appropriate and effective where both parties
are attempting to resolve the matter in good faith.
However, if Happy Mercury does not respond to the letter of demand and does not pay the liquidated
sum and all informal settlement routes fail, our next step will be to commence court proceedings.
 Note: ADR should not take a back seat but should be front and centre of the advice you give your client.
Ultimately litigation may be the course you are forced to take but it should be the last resort. You are
required to advise your client about ADR option under Rule 7 of the ASCR, you should also consider
Paragraph 11.1 of Practice Note 1.
 If court proceedings are necessary we will file a Statement of Claim in the District Court of NSW. The Court
will issue a timetable of court attendances and dates in which certain actions must be taken by the parties
and to which they must comply. If the matter does not settle, then ultimately it will be listed before a Judge
for hearing.

3. Commencing Proceedings at the District Court

In accordance with the Uniform Civil Procedure Rules (“UCPR”) we will need to prepare a statement of
claim and file it with the District Court of NSW. We will service it on Happy Mercury within 6 months of
filing. Happy Mercury then has 28 days from the date of service to file a defence.

If Happy Mercury does not file a defence, we will apply to the Court for a default judgement. This means
that the matter will not go to a hearing.

However, if Happy Mercury does file a defence, a hearing will be allocated for this matter, likely within
the next 12 months.

Please note that all District Court proceedings are bound by the District Court Practice Note. Per Section
1, the Court may dismiss actions or cross claims or strike out defences if orders are not complied with
and the Court may make costs orders against parties who fail to comply with its orders.
4. Statutory Limitation [Note: advice about the statute of limitations is essential.
 6 years from the breach of contract in this case
 Consequence of not commencing proceedings in time  statute barred and prevented from commencing
court proceedings to pursue the matter if a Statement of Claim is not filed within 6 years
 Lawyers have been found guilty of prof. neg. if the consequences have not been explained to the client

Given that this is a breach of contract matter, the statutory limitation for commencing proceedings is 6
years from the breach.

F. Costs and Litigation Risks

The estimate of our costs is detailed in our costs and disclosure statement and costs agreement, as
signed by you.
If Trouble Free is successful in this claim, then the Court may make an order entitling you to make a claim
as to costs. Happy Mercury will be required to pay a specified amount of the legal costs you have
incurred.
5. Note: Costs – We have provided an estimate of costs based upon our experience in conducting similar
matters. If there is any significant change to our estimate, we will keep you updated and inform you
accordingly.

If Trouble Free is unsuccessful in this claim, then the Court may make an order making you liable to pay
Happy Mercury a portion of their legal costs for defending the matter, further to all costs incurred by this
firm in acting on your defence.

We again reiterate that litigation is uncertain, and that there can be no guarantee on an outcome of a
matter, and encourage you to consider alternative dispute avenues.

G. Next Steps
We propose to start by sending Happy Mercury a formal letter of demand for of outstanding sum
(including interest). We may determine further action upon receipt of a response from Happy Mercury,
or by the end of the stipulated time frame for response.
Please instruct us if this is how you wish to proceed.
In the meantime, please advise whether you have any further information or documents relevant to your
claim, as their existence may affect our advice.
Please contact us if you have any questions in relation to the above.

Sincerely,

Jay Law
Legal Solicitors

1.3 Drafting Pleadings

Court fees here

District Court interest rates here

LPUL Application Regulation 2015 Sch 1 (Information about professional costs)

Filing fee for an individual and a corporation are different

AFFIDAVITS – UCPR FORM 40

- affidavit for default judgement for a liquidated claim (UCPR r 16.6(2)
o must state amount due
o particulars of any reduction in the amount
o amount of interest
o whether costs are claimed
 - witness’s sworn or affirmed evidence in chief, in writing and prepared prior to the hearing
- affidavits must be filed:
o all proceedings in NSWCCA
o all concerning the adoption of a child in the Equity Division
o Admiralty list of the equity division
o corporations list of the equity division
o probate list of the equity division
o protective list of equity division
o all involving an appeal to the court under UCPR PT 46 (accounts and inquiries)
- Person who gives evidence by way of affidavit is called a deponent
- jurat – statement found at the end of an affidavit – sets out where and before whom the affidavit is sworn or
affirmed
- annexure / exhibits
o exhibit is a stand-alone document that is linked to the affidavit
 usually testamentary documents – wills etc.
- direct speech
- no hearsay
- opinion evidence not admissible
- being a party to the swearing of an affidavit that you know is false is professional misconduct (Myers v
Elman [1940] AC 282)
- falsely witnessing documents

WITNESS STATEMENTS
- witness statement must be signed by the witness (UCPR 31.4(3))
- witness will be called and oath/affirmation. Then witness is shown the extract and asked to testify to the
truth of the witness statement

STATUTORY DEC
- Legal document
- authorising a declaration to be made (Acts Interpretation Act 1901 (Cth)
- cant use a stat dec as evidence in judicial proceedings (s 6(2))
- prepared for use in non-litigious matters

FEDERAL COURT - PROCEDURE

- must advise the parties to use a primary dispute resolution process
- FCC can adjourn proceedings to allow parties to attend primary dispute resolution
- genuine steps to resolve a dispute (s 4 Civil Dispute Resolution Act)
o notifying the other person about what the issues are and discuss a way to resolve
o respond appropriately to any notification
o provide relevant information
o ADR
- Proceeding are commenced by an application without pleadings (FCC act s 50)
o generally must file affidavit
- FCC may allow or direct an amendment (FCC Rules r 7.01)
- affidavit to be filed except for divorce and bankruptcy
- Docket system for proceedings
- if matter is dealt with before hearing – ask for discontinuance after Div 13.1A
- default orders if party fails to comply (R 13.03B)

ABOVE Task – SoC + Affidavit

Form 3A (version 7)
UCPR 6.2
 STATEMENT OF CLAIM
COURT DETAILS
Court District Court of New South Wales
Division Civil
List General
Registry Sydney
Case number 2022/0002022
TITLE OF PROCEEDINGS
Plaintiff Lyn Hoeben trading as Trouble Free Events
ABN 62 394 605 039
Defendant Happy Mercury Festivals Pty Ltd
ACN 230 045 231
FILING DETAILS
Filed for Lyn Hoeben Plaintiff
ABN 62 394 605 039
Legal representative Jay Law, Legal Solicitors
Legal representative reference XXXX XXX XXX
Contact name and telephone Jay Law
Contact email (02) 9965 7000
jlaw@legalsolicitors.com
TYPE OF CLAIM

Mercantile Law – Sale of Goods and Services

RELIEF CLAIMED

The Plaintiff claims:

1 the amount of $146,891.25 (inclusive of GST) for breach of contract;

2 costs not exceeding the amount calculated in accordance with clause 24 of the Legal Profession
Uniform Law Application Regulation 2015, being costs payable for recovery of a lump sum debt;
and

3 interest pursuant to section 100 of the Civil Procedure Act 2005 in the sum of $146,891.25:

a. from 9 September 2021 to 3 February 2022 (date of filing), at 4.1% per annum (147 days),
being an amount of $2442.02, and

b. from 4 February 2022 to date of payment or judgment, at the prevailing rate set pursuant
to section 100 of the Civil Procedure Act 2005.

Amount of claim $146,891.25

Interest $2442.02
 Filing fees $709
Service fees $70
Solicitor fees $904.20 (incl. GST)
TOTAL $151,016.47

PLEADINGS AND PARTICULARS

*************
1 The Plaintiff is Lyn Hoeben t/a Trouble Free Events (ABN 62 394 605 039).

2 The Defendant, Happy Mercury Festivals Pty Limited (ACN 230 045 231), was at all material
times, a company duly incorporated in the State of New South Wales and accordingly,
proceedings may be brought against the Defendant’s corporate name.

3 The Plaintiff entered into an oral agreement with the Defendant to provide the following
security and clean-up services for his “'Extravaganza Folk and Blues Festival” (“Festival”) being
held from 20th to 24th September 2021 for the total sum of $163,212.50 (including GST).

4 From 3 September 2021 to 7 September 2021, this oral agreement was formalised in writing.

5 In the contract, the Plaintiff’s obligations were noted as follows:

a. Provide 45 security guards from 2pm to 1am (11 hours) for each of the five days of the
Festival at $40 per hour; and
b. Provide 25 people for collecting and removing of rubbish between 2pm and 1am (11
hours) for each of the five days of the Festival at $25 per hour; and

c. Provide rubbish dumping for each of the five days of the Festival at $3,000 per day.

6 In the contract, the Defendant’s obligations were noted as follows:

a. An upfront 10% deposit, in the amount of $16,321.25, will be paid prior to the
commencement of the Festival; and
b. That the remaining balance of $146,891.25 would be paid within 15 days of the end of the
Festival.

7 On 7 September 2021, the Defendant made part performance of this contract when the 10%
deposit was made prior to the commencement of the Festival.

8 The Plaintiff then fulfilled all its obligations listed in paragraph 5 at and on each day of the
Festival from 20 September 2021 to 24 September 2021.

9 Following the Plaintiff’s fulfillment of their obligations and following the 15 days after the end of
the Festival, the Defendant did not make payment of the remaining balance of $146,891.25.
10 To this date, that balance remains unpaid by the Defendant.

11 As a result of the Defendant’s breach, the Plaintiff has suffered loss and damage.

12 The Plaintiff claims a liquidated sum calculated as being the total amount noted below plus
interests and costs.

Activity Loss (AUD$)

45 security guards from 2pm to 1am (11 99,000.00
hours per day over 5 days) at $40.00 per
hour
25 people from 2pm to 1am (11 hours per 34,375.00
day over 5 days) at $25.00 per hour
Rubbish dumping over 5 days at $3,000 per $15,000.00
day
Total Amount: $148,375.00

Always make the claim . Your final paragraph should state "The Plaintiff claims loss and damage, plus
interest plus costs".
SIGNATURE OF LEGAL REPRESENTATIVE

This statement of claim does not require a certificate under clause 4 of Schedule 2 to the Legal
Profession Uniform Law Application Act 2014.
I certify under clause 4 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 that
there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view
of the law that the claim for damages in these proceedings has reasonable prospects of success.
I have advised the Plaintiff that court fees may be payable during these proceedings. These fees may
include a hearing allocation fee.

Signature [My Signature]

Capacity Contact solicitor
Date of signature 15/03/2022
NOTICE TO DEFENDANT

If you do not file a defence within 28 days of being served with this statement of claim:
 You will be in default in these proceedings.

 The court may enter judgment against you without any further notice to you.

The judgment may be for the relief claimed in the statement of claim and for the plaintiff’s costs of
bringing these proceedings. The court may provide third parties with details of any default judgment
entered against you.
HOW TO RESPOND

Please read this statement of claim very carefully. If you have any trouble understanding it or require
assistance on how to respond to the claim you should get legal advice as soon as possible.
You can get further information about what you need to do to respond to the claim from:
 A legal practitioner.

 LawAccess NSW on 1300 888 529 or at www.lawaccess.nsw.gov.au.

 The court registry for limited procedural information.

You can respond in one of the following ways:

1 If you intend to dispute the claim or part of the claim, by filing a defence and/or making a cross-
claim.
2 If money is claimed, and you believe you owe the money claimed, by:
6. Paying the plaintiff all of the money and interest claimed. If you file a notice of payment under
UCPR 6.17 further proceedings against you will be stayed unless the court otherwise orders.
7. Filing an acknowledgement of the claim.
8. Applying to the court for further time to pay the claim.

3 If money is claimed, and you believe you owe part of the money claimed, by:
9. Paying the plaintiff that part of the money that is claimed.
10. Filing a defence in relation to the part that you do not believe is owed.

Court forms are available on the UCPR website at www.ucprforms.justice.nsw.gov.au or at any NSW
court registry.

REGISTRY ADDRESS
Street address Level 4 John Maddison Tower 86 Goulburn Street
SYDNEY NSW 2000
Postal address PO Box K1026
HAYMARKET NSW 1240
Telephone 1300 679 272

AFFIDAVIT VERIFYING
Name Lyn Hoeben
Address 1 Smyth Street, Hamilton NSW 2303
Occupation Event Organiser
Date 15 March 2022

I affirm:
2 I am the Plaintiff.

3 I live at 1 Smyth Street, Hamilton NSW 2303.

4 I have been running a business under the registered business name “Trouble Free Events” (ABN 62
 394 605 039). for the past 5 years. The business provides security, rubbish clean-up and other
services for sporting, music and community events.

5 My team of casual staff are all experienced in working at these varied events.

6 I knew Robert McGinty from when I was in the early days of running my business. I provided support
services for him and his then partner James Nguyen. I had a great relationship with the two of them
and they always paid their bills on time.

7 About 6 months ago, I ran into Robert at an industry event. Robert told me that himself and James
had parted company about a year ago and that he had been organising festivals by himself since
under his company “Happy Mercury Festivals Pty Limited”.

8 On 2 September 2021, I received a phone call from Robert McGinty. We met that same day to which
Robert requested my services in a festival that he was organising, “Extravaganza Folk and Blues
Festival”, that would last 5 days. Because of my long-standing relationship with Robert, I did not
organise a formal agreement for the first day of the Festival. We agreed on the rough terms of the
agreement for the rest of the 4 days of the Festival that day.

9 The next day, I wrote to Robert confirming these arrangements, specifying my costs and requesting
payment of a 10% deposit.

10 On 7 September 2021, Robert replied to my letter, confirming our arrangement and enclosed a
cheque fulfilling the 10% deposit.

11 Due to short notice, I had to work very hard to provide the staff but managed to find the right
numbers. My staff are experienced and reliable and they all turned up everyday of the festival, doing
a great job.

12 Unfortunately it rained for most of the five days of the festival and attendance averaged about 3,000
a day rather than the expected 10,000 attendees. These things happen with open air events and
everyone in the industry understands that security and rubbish removal has to go on, no matter how
many people turn up. If the weather improves, you could get a large number of people turning up
unexpectedly. Robert was relying on gate sales as only about 1,500 tickets a day had been sold prior
to the event. I think he lost a lot of money on that festival. He told me that all his musicians were
being paid in advance

13 I handed Robert my tax invoice on the last day of the festival for the sum of $146,891.25 but he was
very distracted and said something like “I never agreed to all of this”. I knew he was very stressed, so
I didn’t pursue it on the day, but I sent him another copy of the final account the next day.

14 I heard nothing from Robert for over 3 weeks. He was supposed to pay me 15 days after the festival
 was over, so at the end of the three weeks following the festival I rang him to find out what was
happening and he told me that there was no way he was paying the bill, as he didn’t need all the
staff and rubbish removal services because of the low attendance. He said that I should have
cancelled most of the staff to cut costs. That is not what would normally happen at such an event
and there was never any suggestion from Robert until the day of our conversation on [3 weeks after
the festival] that this was his expectation, which is what I said to Robert, but he ended the
conversation abruptly.

15 Since then, I have tried calling and e-mailing Robert a number of times, but he hasn’t answered my
calls or emails. At first I thought that perhaps he was short of money but I have since found out that,
after the Extravaganza Folk and Blues Festival, he has put on another three events around the state
and they had really good attendances, so he has done very well out of them.

16 I believe that the allegations of fact in the statement of claim are true.

AFFIRMED at Hamilton
Signature of deponent [insert signature]
Name of witness Jay Law
Address of witness 10 Smyth Street
Capacity of witness Solicitor
And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent):
1 I saw the face of the deponent.
2 I have confirmed the deponent’s identity using the following identification document:

Drivers licence number XXXXXX

Identification document relied on (may be original or certified copy) †

Signature of witness [insert signature]

Note: The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.

____________________________
[* The only "special justification" for not removing a face covering is a legitimate medical reason (at April 2012).]
[†"Identification documents" include current driver licence, proof of age card, Medicare card, credit card, Centrelink pension card, Veterans
Affairs entitlement card, student identity card, citizenship certificate, birth certificate, passport or see Oaths Regulation 2011.]

PARTY DETAILS

PARTIES TO THE PROCEEDINGS

Plaintiff Defendant
Lyn Hoeben trading as Trouble Free Events Robert McGinty trading as Happy Mercury
ABN 62 394 605 039, Plaintiff Festivals Pty Ltd (230 045 231), Defendant

FURTHER DETAILS ABOUT PLAINTIFF

Plaintiff
Name Lyn Hoeben trading as Trouble Free Events
(ABN 62 394 605 039)
Address 1 Smyth Street
Hamilton NSW 2303

Frequent user identifier

Legal representative for plaintiff

Name Jay Law
Practising certificate number XXXXXX
Firm Legal Solicitors
Contact solicitor Jay Law

Address 10 Smyth Street

Hamilton NSW 2303

DX address      
Telephone (02) 9965 7000
Fax (02) 9965 7001
Email jlaw@legalsolicitors.com
Electronic service address jlaw@legalsolicitors.com
DETAILS ABOUT DEFENDANT
Defendant
Name Robert McGinty trading as Happy Mercury Festivals Pty
Limited (ACN 230 045 231)
Address 24 George Street
Hamilton NSW 2303

2.1 Drafting court documents for an interlocutory application

Drafting Court Orders
 Draft in persom: The order should direct a person to do certain acts or things and must be sufficiently
clear and definite so that their effect is obvious.
 Active not passive voice: e.g. a letter was sent (not the applicant sent a letter0
 Make orders prescriptive not descriptive
 Insert time provisions where relevant
 Concise
 CPA ss98, 99 Consequences of a badly drafter order: if the order is drafted so badly that it cannot e put
into effect or is not capable of achieving the desired result, then a further application to the court may
be necessary for amendment or further orders.
 Consent orders and notations
o resolve a litigated matter by an agreed settlement between parties. Embodied in consent
orders. Orders must be acceptable to the court however the responsibility for precise
drafting rests with lawyers

Preparing interlocutory applications

1. Read supervisor instructions
2. Read allocated file
3. Review the model summary included in your allocated file
4. Proof making model
5. Draft affidavit(s), orders and submissions
a. make submissions on each element
b. identify the facts that establish each elemnt
c. pin point specific paragraphs in your affidavit that prove facts
d. back up your submission with case law
e. Do not include information in the Affidavit that does not go to the facts in dispute, to the
elements of the relevant Rule, or to the Orders you are seeking
i. e.g. conversations with your client’s lawyer, what your client thought or assumed
ii. Do not offend the rules of evidence against hearsay, opinion, relevance or material
f. Use short sentences
g. Do not given opinions or make assumptions
h. Set out the conversations that you intend to rely upon in evidence in full in your Affidavits.
This enables the judge to hear both parties’ version of the discussion nand to decide which
version they prefer
i. Do not summarise conversations
i. Do not use “indicated”, “knew”, “understood”, “was aware”, “he/she advised/told/informed
me” or “I heard”

Task – Notice of Motion

Ex parte interlocutory applications
 Ex parte means “with respect to or in the interests of one side only or of an interested outside party”
 the matter is being heard with only one party present
 Applications are made to the court after the initiating process and before the end of the proceedings
(where there is a verdict or judgement)
 In District Court, made by way of notice of motion  NoM requests the court to make Orders during
the matter. NoM must be supported by an Affidavit in support – evidence to persuade the Court as to
why the orders should be affected
 Affidavit: should address the elements of the Legislation you are relying on

 Keep in mind that the submissions are in respect of the interlocutory matter only – not the
substantive dispute.
  It may be necessary to outline what the case is about. But you are not arguing or putting evidence
to the court about the substantive issue.
 Your submissions should be confined to the affidavit evidence before the court, always reference
the evidence to support your submissions– in this case documents and affidavits.
 You cannot make unsupported statements or assumptions and should not mention matters that do
not go the elements of the rules/legislation you are relying upon. Rules 19.4 and 19.5  2.2 Task

In the Aqualand v Colorado matter (UCPR r36.16 – application to set aside a judgement)
 3 elements:
o Defence on the merits
o Adequate reason for not filing the Defence in time
o Delay in making the application
 The reasons for the defence having merit including having already paid Aqualand certain monies and
that the agreement for the other two developments were on a “slice of the action” basis and both did
not proceed
 Furthermore, there was no agreement for which the $35K has been claimed
 In relation to the 2nd element, mention the request for particulars
 3rd element: refer to Johannsen contacting the plaintiff shortly after the Statement of Claim was
received
Form 20 (version 3)
UCPR 18.1 and 18.3

NOTICE OF MOTION
COURT DETAILS
Court District Court of New South Wales
Division Civil
List General
Registry Sydney
Case number 2022/0002022
TITLE OF PROCEEDINGS
Plaintiff Aqualand Limited
ACN 721 076 549

Defendant Colorado Holdings Limited

ACN 902 101 576
FILING DETAILS
Person seeking orders Colorado Holdings Limited
Defendant
Legal representative Jay Law (Legal Solicitors)
Legal representative reference JL:2022202
Contact name and telephone Jay Law
(02) 9965 7000
Contact email jlaw@legalsolicitors.com
PERSON AFFECTED BY ORDERS SOUGHT
Aqualand Limited
Plaintiff
 HEARING DETAILS
This motion is listed at 9:30 a.m. on (in 12 days’ time) 8 April 2022 at the District Court of New South
Wales.
ORDERS SOUGHT
1 That pursuant to rule 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW), the default
judgement entered by the Plaintiff on 20 March 2022 be set aside.

2 That leave be granted to the Defendant to file a defence within 7 days.

SIGNATURE
Signature of legal representative Jay Law
Signature of or on behalf of
person seeking orders if not
legally represented
Capacity Solicitor
Date of signature 27 March 2022
NOTICE TO PERSON AFFECTED BY ORDERS SOUGHT
If you do not attend, the court may hear the motion and make orders, including orders for costs, in your
absence.
REGISTRY ADDRESS
Street address Level 4 John Maddison Tower 86 Goulburn Street
SYDNEY NSW 2000
Postal address PO Box K1026
HAYMARKET NSW 1240
Telephone 1300 679 272

FURTHER DETAILS ABOUT APPLICANT

Applicant
Colorado Holdings Limited
Address 51A Pitt Street
Sydney NSW 2000

Legal representative for applicant

Name Jay Law
Practising certificate number
Firm Legal Solicitors
Contact solicitor Jay Law
Address 10 Smyth Street
Hamilton NSW 2000
DX address
Telephone (02) 9965 7000
Fax (02) 9965 7001
Email jlaw@legalsolicitors.com
 Electronic service address jlaw@legalsolicitors.com
Contact details for applicant acting in person or by authorised officer
Name of authorised officer
Capacity to act for applicant
Address for service

Telephone
Fax
Email

FURTHER DETAILS ABOUT RESPONDENT

Respondent
Aqualand Limited
Address Level 32
51A George Street
Sydney NSW 2000

Task – Affidavit
Name Kenneth Bach
Address 51A Pitt Street, Sydney NSW 2000
Occupation Managing Director
Date 27 March 2022
I Kenneth Bach say on oath the following:

BACKGROUND

1 I am the Managing Director of Bach Corporation, a company incorporated in the State of Delaware,
United States of America. The registered address of Bach Corporation is at 14 East 74 th Street, New York.

2 The Bach Corporation is involved in the real estate investment business in the United States.

3 I frequently holiday to New South Wales and about five and a half years ago, I decided to enter the
Australian real estate market.

4 I registered one of Bach Corporation’s companies, Colorado Holdings Ltd (“Colorado”) as a foreign
company in New South Wales. The registered address for this company is 51A Pitt Street, Sydney NSW
2000.

5 Colorado is a wholly owned subsidiary of the Bach Corporation.

6 I am the sole director of Colorado.

LITTLE COVE PROPERTY AND OTHER SERVICES

7 I was planning to purchase, develop, sub-divided a sell a seaside property on the south coast by
Colorado in the amount of $300,000.00. I expected that given the reputation of Bach Corporation,
financing would not have been difficult to obtain and accordingly, signed an Option Agreement with the
vendor.

8 Contrary to this however, there were several issues with the purchase. First, my solicitors Temple & Co.,
were engaged in a legal dispute as to land title with the vendor’s solicitor’s, Smith Robson and Co. Part
of the proposed zoning land consisted of a national park and Crown Land tenure. Second, regarding the
form of the Option Agreement and the proposed form of Contract, it became apparent that Colorado
would be locked into the Contract unless we were prepared to commence proceedings in the Supreme
Court. Finally, all the banks that we spoke to were reluctant to finance the purchase given the ongoing
issues as to title, and Colorado was experiencing difficulty being able to access funds from America to
Australia.

9 Colorado had already engaged approximately $200,000.00 to different contractors in this development
project, yet as the land issue was ongoing, I had to cease this project until we found a solution.

10 My agent, McKenzie and Smith, then recommended me to Desmond as a “good operator”.

11 It was at that time that I become aware that Desmond had business as an investment consultant in
Sydney. His company was called Aqualand Limited. He is the sole director and shareholder of Aqualand.

12 I talked to Desmond about my difficulties obtaining financing in Australia, and Desmond accordingly
contacted the Foreign Investment Review Board (“FIRB”). He seemed to be of the opinion that the
situation could be amended fairly efficiently. I was impressed with Desmond’s work and the set-up of his
business.

13 Therefore, as at the time I had to return to America, I agreed that Desmond should look after my affairs
while I was gone. We orally agreed on a set fee of $5,000.00 which I paid for in cash in advance. There
was no written agreement for this. This was also the only other agreement I had with him regarding the
payment of money for services. In general I prefer gentlemen’s agreements over written agreements.

14 The $5000.00 fee included Desmond attending to Colorado’s company documents, tax returns, accounts
for the Little Cover project. Desmond also said that he would attend to the Foreign Investment Review
Board problem and do what he could to solve the impasse over the Little Cove project as a gesture of
good faith and in anticipation of being involved in future New South Wales projects with Colorado.
Again, this agreement was made orally and was the only agreement we made regarding the payment of
money for services.

15 Desmond and I therefore agreed that all our other businesses together would be completed on a project
basis – that is, we would work together on projects and Desmond would have “slice of the action” of our
New South Wales projects. This agreement was also made orally.
16 I also authorised Desmond to consult lawyers and accountants as necessary and left Desmond with a
power of attorney. I recall he used a firm of accounts called Mitchell & Co.

17 Around this time, I met Jonathon Arena who was running a real estate business, concentrating on
development projects. He worked closely with Desmond and with teams of surveyors and government
personnel.

18 When I returned from America to New South Wales, the financing issue had been resolved, with FIRB
resolving the matter and three banks, Westpac, National Bank of Australia and ANZ being interested in
our business. The Little Cove land title issues had also been resolved and the project was going ahead.

19 I was very pleased with Desmond’s work and paid him another $2,500.00 as a kind of ex gratia bonus for
his efforts. I also decided to take him and his business on board for our New South Wales projects.

LAYCOCK PROPERY

20 A luncheon was soon arranged to discuss business between Desmond, Arena and myself (“team”) on
behalf of Colorado. An oral arrangement was made as follows:

a. Desmond would find and advise the team of suitable properties for development in New South
Wales and liaise with banks and private investors.

b. Arena would prepare feasibility studies and plans while dealing with local governments.

c. Colorado would finance the scheme.

21 We also agreed on payment arrangements at the meeting:

a. Arena would be paid out of pocket for his work at agreed rates.

b. As Desmond had a “slice of the action”, Desmond would receive a substantial cut successful
developments that had yet to be determined. Accordingly, Desmond was also aware that if the
developments were unsuccessful, Desmond would not receive payment.

22 The first project that his team tackle as a property at Laycock. I signed an Option Agreement with the
vendor, Felix Overlander. Unfortunately, the vendor received a better offer in the amount of
$425,000.00. Desmond instructed solicitors to enter caveats over the Laycock property and all of a
sudden, proceedings had commenced by the vendor’s solicitors, Michaels and Sweeney. The vendor
sought damages of approximately $115,000.00.

23 Relying on Desmond’s advice, we briefed a barrister named Hamilton and Q.C. named Deer. While the
dispute was eventually resolved, there were immense legal fees that were incurred. Desmond did not
mention any fee for himself to me.

24 At that point in time, the only agreement between Desmond and myself for payment of money was
services was the $5,000.00 which had been fulfilled in addition to a $2,500.00 goodwill bonus.

POINT DIAZ PROPERY

25 The second project that the team entered into was a bigger project – a property at Point Diaz. Jonathon
planned the property to be a big urban housing scheme and he was involved in liaising with several
government bodies regarding development applications.

26 Relying on Desmond’s advice, Colorado was being partly financed by a company named Credit
Corporation Limited (“CCL”). However, CCL went into liquidation and receivers were appointed. At this
time, we had already decided to sell the project as a going concern to a company called Georgeson
Investment Pty Limited.

27 However, just when we were in the process of finalising the deal, CCL crashed and we were limitation by
the receivers of that company. The deal with Georgeson Investment Pty Limited stalled and we were
stuck. I am still dealing with the financial ramifications of this project.

28 At that point in time, the only agreement between Desmond and myself for payment of money was
services was still only the $5,000.00 which had been fulfilled in addition to a $2,500.00 goodwill bonus.

FOLLOWING EVENTS

29 Approximately two and a half months ago, I received a letter from Aqualand’s lawyers demanding a
large payment sum in the amount of $103,600.00. A copy of the letter is annexed and marked “A”.

30 I remember calling Desmond and expressing a lot of confusion about this sum. Desmond had previously
not provided me with any indication that he had outstanding fees nor had he provided me with any
invoices. In the first place, the spirit of my agreement and business arrangement with Desmond should
not have included Desmond’s right to bill Colorado. I accordingly did not agree to pay this sum and told
Desmond that I did not owe him anything.

31 I did not hear from Desmond further until about just over 4 weeks ago when our Sydney office was
served with a Statement of Claim. A copy of the Statement of Claim is annexed and marked “B”.

32 Our Colorado Holdings Manager, John Johannsen, wrote a letter to Law & Co Solicitors within a week of
receiving the Statement of Claim, seeking further particulars on the matters alleged. A copy of the letter
is annexed and marked “C”.

33 I had not heard back from neither Law & Co Solicitors or Desmond. The Plaintiff’s solicitors advised that
they never received this letter. I was concerned that perhaps our letter to Law & Co Solicitors was sent
to the wrong address. However, I have double-checked the details on the Statement of Claim and am
satisfied that they match the address to which we posted our letter.

34 Still having heard no response to our letter, John contacted the Defendant’s solicitors to which we were
advised that that Defendant obtained a default judgement without contacting myself or my solicitors.

35 I believe there are adequate reasons and merits for this default judgement to be set aside and for leave
to be granted so that the Plaintiff has a fair opportunity to file a defence.
 SWORN at Sydney
Signature of deponent Kenneth Bach
Name of witness Jay Law
Address of witness 10 Smyth Street, Hamilton NSW 2010
Capacity of witness Solicitor
And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent):
1 I saw the face of the deponent.
2 I have known the deponent for at least 12 months.

Signature of witness JayLaw

Note: The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.

2.2 Preparing oral submissions

Task – Chronologies
Note that a chronology must be a correct statement of “the principal events leading up to litigation” and
should not be a chronology merely of those matters of assistance to one party or the other- Woods v.
Harwin *unreported CA (NSW) Mahoney ADP, Clarke and Meagher JJA, 5/11/93.

 Too much detail in the chronology can appear self-serving.

 Try to understand what the court needs to know about the timeline, not what is important to your
client but what is important overall.
 If you include evidence or unnecessary information your chronology it will be objected to by other
side. Sometimes both parties get together and agree upon a chronology. Of course, if one attempts
to include self-serving information or evidence the other party will not agree to the joint chronology.

Keep the chronology free of commentary, it is for the judge to understand when the events occurred it's
not an opportunity to put evidence before the court. For an example of a chronology see CL205.130.

Task – Submissions
SUBMISSIONS – The Submissions you will be making should refer to the Rule or legislative provision relied
upon in your Notice of Motion.

 Keep in mind that the submissions are in respect of the interlocutory matter only – not the substantive
dispute. It may be necessary to outline what the case is about. But you are not arguing or putting
evidence to the court about the substantive issue. Your submissions should be confined to the
affidavit evidence before the court, always reference the evidence to support your submissions– in
this case documents and affidavits. You cannot make unsupported statements or assumptions and
should not mention matters that do not go the elements of the rules/legislation you are relying upon.
Rules 19.4 and 19.5

UCPR r19 Frankness in court

19.4 A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all
factual or legal matters which:
 19.4.1 are within the solicitor's knowledge,
 19.4.2 are not protected by legal professional privilege, and
 19.4.3 the solicitor has reasonable grounds to believe would support an argument against granting the
relief or limiting its terms adversely to the client.

19.5 A solicitor who has knowledge of matters which are within Rule 19.4:
 19.5.1 must seek instructions for the waiver of legal professional privilege, if the matters are protected
by that privilege, so as to permit the solicitor to disclose those matters under Rule 19.4, and
 19.5.2 if the client does not waive the privilege as sought by the solicitor:
o (i) must inform the client of the client's responsibility to authorise such disclosure and the
possible consequences of not doing so, and
o (ii) must inform the court that the solicitor cannot assure the court that all matters which
should be disclosed have been disclosed to the court.

SUBMISSIONS OF THE DEFENDANT

Orders Sought
1. The Defendant seeks:
a. to set aside the default judgement entered by the Plaintiff on 20 March 2022 pursuant to rule
36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); and
b. that leave be granted to the Defendant to file a defence within 7 days.

The Court has jurisdiction to set aside a default judgement

2. Under rule 36.16(2)(a) UCPR, the Court has power to set aside or vary a default judgement after it has
been entered into if the following is satisfied:
a. there is a “defence on the merits”; and
b. there is an adequate reason why the Defendant did not file a defence in time.
3. The Defendant contends that there is an adequate “defence on the merits” and that there is an adequate
reason for the delay in filing a defence in response to the Plaintiff’s Statement of Claim dated 13 February
2022 (“Statement of Claim”).

Defence on the Merits

The Plaintiff and Defendant were partners in a partnership. No valid contract existed between the Plaintiff and
Defendant that enabled the Plaintiff to claim the relief in the Statement of Claim
4. It is the Defendant’s position that there was only ever one valid contract made between the two parties
for the payment of money for services five-and-a-half years ago. The terms of this oral agreement were
that the Plaintiff would complete services addressing the Defendant’s Foreign Investment Review Board
(“FIRB”) situation at the time which barred the transmission of funds overseas, in exchange for the
Defendant’s upfront payment of $5,000.00. This contract was affirmed when both parties performed their
obligations under the agreement, with the Defendant paying an upfront fee of $5,000.00 and the Plaintiff
liaising with FIRB to permit the transmission of funds overseas.
5. It is the Defendant’s position that from then on, no other valid contract was formed between the parties,
neither oral, written, express nor implied, that entitled the Plaintiff to claim costs and charge for payment
of their services at the specified rate.
 6. Rather, it is the Defendant’s position that following on from the initial payment-for-services contract, the
relationship between the Plaintiff and Defendant was that of a Partnership.
7. Section 1 of the Partnership Act 1982 (NSW) (“Partnership Act”) notes three essential elements that must
be present for a business to be considered a partnership (“elements”). That is the:
a. carrying on of a business;
b. in common; and
c. with the view of making a profit.
8. Here, the Defendant refers to paragraph 15 at page 3 of the Affidavit of Kenneth Bach (“Affidavit”) where
Desmond states he was hoping to get “a slice of the action” on the Defendant’s development projects. This
demonstrates the Plaintiff’s intention to function on behalf of both the Plaintiff and Defendant in a
property development capacity in New South Wales with the view of improving each other’s financial
position. All three elements of a partnership are satisfied.
9. The Defendant also refers to paragraphs 20 and 21 at page 4 of the Affidavit where an oral agreement was
made between the Plaintiff and Defendant, together with Jonathon Arena as to the responsibilities of each
party in the development projects and their method of payment. The Defendant notes that the payment
arrangement made with Jonathon Arena at paragraph 21(a) on page 4 of the Affidavit notes that Arena
“would be paid out of pocket for his work at agreed rates”. Here, while the first and third elements are
satisfied, Jonathon is not working “in common” with the Defendant and is a not a partner to the
partnership.
10. This contrasts to paragraph 21(b) at page 4 of the Affidavit where the Plaintiff “would receive a substantial
cut of successful developments”, while also being aware that if “the developments were unsuccessful,
Desmond would not receive payment”. It demonstrates the Plaintiff’s intention to work “in common” with
the Defendant.
11. The development projects were also “not an isolated act” as per Smith v Anderson (1880). As noted in
paragraphs 20 to 28 at pages 4 to 5 of the Affidavit, the first project at the Laycock was soon followed by
the Point Diaz property project and should that have been successful, it is not unlikely that the partnership
relationship would have continued.
12. Accordingly, the Defendant claims that both the Defendant and the Plaintiff are partners in a partnership
and that per section 9 of the Partnership Act, each partner is jointly liable for all debts and obligations
incurred. The Plaintiff is not entitled to claim the costs listed in the Statement of Claim or to charge for the
payment of services.
13. As the Defendant also claims that aside from the initial payment-for-services contract in the amount of
$5,000.00, no valid contractual relationship had arisen between the parties that enabled the Plaintiff to
claim the costs listed in the Statement of Claim.
14. The Defendant further notes that no written invoice or mention of costs or charge rates was provided by
the Plaintiff throughout the entire duration of the relationship.

The Defendant did not request the services in the “Particulars” of the Plaintiff’s Statement of Claim
 15. The Defendant claims that the Plaintiff’s Statement of Claim for relief for work and labour by the Plaintiff
was not requested by the Defendant, contrary to paragraph 3 of the Plaintiff’s Pleadings and Particulars.
16. Apart from FIRB work with which the Defendant paid the Plaintiff $5,000.00 as noted in paragraph 4
above, the remainder of the services listed at paragraph 3(i) in the Statement of Claim was completed by
the Plaintiff as a gesture of good faith. This is noted at paragraph 14 at page 3 of the Affidavit.
17. Regarding paragraph 3(ii), the caveat over the Laycock properties was entered by Michaels and Sweeney
under the Defendant’s instructions. It was also in reliance of the Defendant’s recommendations that
Barrister Hamilton and Deer Q.C were briefed. See paragraph 22 and 23 at page 4 of the Affidavit.
18. Regarding paragraph 3(iii), it was also upon the Defendant’s recommendations that the Plaintiff be partly
finance by Credit Corporation Limited. Negotiations with Government Departments and various town
planning and engineering activities were completed by Jonathon Arena. See paragraph 20 at page 4 of the
Affidavit and paragraphs 26 to 28 at page 5 of the Affidavit.
19. Regarding paragraph 3(iv), while there was an existence of a contract for payment of services signed by
the Defendant, the Defendant claims that no consideration was given for the contract, the contract was
not performed and in any case, the contract was breached by the Plaintiff’s.

Reasons for failure of filing a defence

20. As per paragraph 30 at page 30 of the Affidavit, the Defendant expressed shock and confusion upon
receiving the Statement of Claim in line with rule 14.14(1) UCPR. Per UCPR rule 15.1, the Defendant claims
that it was difficult to draft a defence from the Pleadings and Particulars given in the Statement of Claim.
The necessary details such as the nature of the contract, whether oral or in writing, the date that it was
formed, the terms of the agreement, or the nature of the requests made by the Defendant were all
deficient.
21. Accordingly, the Defendant sent a concise request for further and better particulars to the Plaintiff within
the 28 days of service of the Statement of Claim to which no response was received from the Plaintiff. See
Annexure B of the Affidavit.
22. It only on 23 March 2022 when the Defendant called the Plaintiff’s solicitors for an update that the
Defendant was made aware of a default judgement entered against them as per paragraph 32 at page 6 of
the Affidavit.
23. The Plaintiff’s Solicitor’s advised that they did not receive the letter at Annexure B. The Defendant
however notes that the address at Annexure B aligns with the address specified on the Statement of
Claim.
24. Overall, the Defendant claims that the deficiency of particulars “necessary to enable the opposite party to
plead or to define questions for trial to avoid surprise” as per rule 27.04 of the High Court Rules 2004 (Cth)
is an adequate reason for the delay in filing a defence.
3.1 Setting proceedings and enforcing a judgement

Settling and enforcing judgement

Task: Enforcement method table

Office Owned by Approx Mortgage to Sections 104 of the Civil Procedure Act 2006 (NSW)
Premises debtor $1.3mil HBVO (“CPA”): Writ for possession of land via notice of
company approx.. motion (Form 59), writ for the possession of land
$800K owing (Form 60) and supporting affidavit

Debtor company solely owns the asset. Compared to

a writ for the levy of property, no consent from
debtor company or sheriff is required. Judgement
debt will only be paid once the mortgage has been
satisfied
Business Name of $30k per last Rule 39.34 UCPR: Apply for a garnishee order by
bank debtor co month’s notice of motion (Form 69), garnishee order (Form
account statement 70) and supporting affidavit.

As per a Garnishee Order, money owed to the

debtor from the bank can attach directly to the
creditor instead of the debtor. This includes a
business bank account.

Section 117 CPA: All existing debts due from the

garnishee to the judgement debtor at the time of
service may be “attached”.
Fixed term Name of $25K Rule 39.34 UCPR: Apply for a garnishee order by
deposit debtor co. notice of motion.
Car Europe $65K Under Sections 106(1) and 106(2) of the Civil Procedure Act
Cars finance - 2006 (NSW) (“CPA”): notion of motion (From 65),
Finance Ltd $43K owing writ for levy of property (Form 66) and supporting
affidavit.

Judgement debt will only be paid once the owing

balance has been satisfied
Debt (ticket Owed to $130K Garnishee
sales debtor
owing) company
Office Owed to $50,500.00 Could be garnisheed but might be minimal
equipment the debtor
Co. Section 106(3) CPA and UCPR r39.46: prohibits the
seizure of furniture or tools of trade not exceeding
$2,000 used by the debtor

Task: Memo to supervisor

When considering enforcing a judgement debt, the idea is to target the most vulnerable and available
assets, using the most cost effective and expeditious method. Recommend Garnishee Orders (cheap,
efficient and effective)
- Debt owed by Ballina Blues Festival, business bank account and the fixed term deposit can all be
subject to a Garnishee order
 - Disadvantage: Value of the office equipment is minimal, and in view of the other assets which can
be garnished, would not be warranted.  also, if we didn’t know how much money was in a bank
account …….

Don’t recommend a Writ of Execution (particularly Writs for Levy of Property). Cumbersome, expensive and
time consuming to execute.

A Writ for Possession of Land is possible in relation to the commercial premises owned by the JD however
UCPR r39.6 Order in which property to be sold
(1) If it appears to the Sheriff that the value of the property affected by a writ for the levy of property
is greater than the amount outstanding under the judgement debt, the Sheriff may not cause to be
sold any more of the property than is sufficient to satisfy the judgement
a. therefore unlikely to consent to sell any of th real estate
(2) Don’t need the consent of either the Debtor or the sheriff for the land to be sold. Asset One’s jointly
ownership by Robert and Josephine McGinty provides a reason to the Sheriff as to why the property
should not be sold.

Motor vehicle is under finance and accessing equity will be difficult

Also possible to issue a Statutory Demand in respect of payment of the Debt

- Can be issued upon a company without a court judgement (ss459E and 459F CA and s509G if there
is no judgement)

FUrther Evidence of the debt must be produced and if the debt is not paid the creditor can commence
winding up proceedings on the basis that the corporation cannot pay its debts and is therefore insolvent

Charging order: rare. takes effect once it is made, however, a disadvantage is that the creditor cannot
commence proceedings to enforce the charging order until 3 months after it has issued

Items
As you are aware, we obtained a default judgement against the Debtor today to commence recovery
proceedings in the amount of $163,212.50 plus any other accrued interest and costs.
In the event that the Debtor does not make payment of the judgement debt within 21 days, I have
considered the following methods of enforcement that we may pursue (further to the attached table).

Garnishee Order – Attachment of Debt Who is responsible for complying with orders?
THIRD PARTY

A garnishee order can be used to compel a third party to pay a debt (owing to the judgement debtor)
directly to the judgement creditor. All debts due or accruing to the judgement debtor at the time of service
of the garnishee order may automatically attach to the judgement creditor, per section 117 CPA. These
debts can include:
- cheque and savings accounts
- term and fixed deposits
- rent, wages or contract payments due to the judgement debtor
- any other payments owed to the judgement debtor.

Procedure Pt 8 CPA/Part 39 UCPR: The process for enforcing a garnishee order is to:
- File a notice of motion (Form 69) UCPR r39.34;
- File a garnishee order (Form 70) or a garnishee order for wages or salary (Form 71)  Garnishee
may make a statement specifying that there is no debt or that no wage/salary becomes payable;
and
 - Attach a supporting affidavit that satisfies the requirements under rule 39.35(2) UCPR, including the
grounds relied upon and the amount payable.

WRIT OF EXECUTION 
allows the Sheriff of the Court to seize all property. (1) writ for the levy of property, (2) writ for the
possession of land, and (3) writ for the delivery of goods
- judgement creditor must know of the property
- 12 year period to serve notice
- common features: property must be first put up for sale and sold to the highest bidder, solder
promptly etc. and then proceeds will first go to satisfying the sheriff’s fees and expenses, then to
the judgement creditor to satisfy debt, then any remaining to the judgement debtor
- writs won’t be good if the property is owned jointly, there is security interest in the goods

Need Court’s leave before issuing (UCPR r39.1(1)). Leave is required if:
- Change in persons entitled to execution under the judgement
- the judgement is against the assets of a deceased person
- if the person’s entitlement under the judgement is subject to fulfilment of a condition
- writ is for the possession of land
- writ is against property in hands of a receiver
- writ is against property in hands of a sequester
- writ is in the aid of another writ of execution

Writ for the Levy of Property (UCPR Pt 39, Div 1)

Per sections 106(1) and 106(2) of the Civil Procedure Act 2005 (“CPA”), a writ for the levy of property may
be used to seize property belonging to or held by the judgement debtor. Property can include:
- any goods in which the judgement debtor has a beneficial interest
- money belonging to the judgement debtor
- cheques, bills of exchange, promissory notes, bonds or other securities
- choses in action or equitable interests in goods or land held by the judgement debtor
- land

s106 CPA: Cannot seize clothing, bedroom or kitchen furniture, tools of trade < $2k.
r39.3(4) UCPR: must state the amount payable and addresses which the property may be located

The procedure for enforcing a writ for the levy of is as follows:

- File a notice of motion (Form 65); and
- For goods, file a writ for the levy of property (Form 66); or
- For land, as is in this case, a writ of execution against the land; and
- An affidavit in support which clearly states the:
o amount payable judgement the judgement; and
o the location of the property (rule 39.3(4) of the Uniform Civil Procedure Rules (“UCPR”)).

For property/goods (CPA s112)

- any location in NSW, sheriff will seize goods but no more than he thinks will be sufficient to satisfy
the debt.
- Must register a copy of the writ with the LRS (RPA s105 )
- cannot sell or mortgage land within 6 months of judgement
o s 113(3) JD can sell or mortgage the land during registration period of judgement with
consent of judgemen creditor (JC)
o 1. affidavit rule 39.21 verifying it has been registered
o 2. form 66
 SELLING PROPERTY:
 must lodge notice with JD saying the writ has been registered and that it will be sold
after 4 weeks
 MUST FILE AFFIDAVIT
 FILE ORIGINAL NOTICE AND GIVE 6 COPIES TO SHERIFF SO HE CAN INSERT DATE OF
SALE
 SERVE A COPY OFSEALD NOTICE TO JD ATLEAST A WEEK BEFORE SALE
 GIVE SHERIFF PROPERTY VAL

In the case of Asset One, it is important to note that a writ for the levy of property cannot be executed
unless the judgement debtor consents, or the sheriff is satisfied that the land should be sold.

Writ of Possession for Land

Per section 104 of the Civil Procedure Act 2005 (“CPA”), a writ for the possession of land may be used to
take possession of land in satisfaction of a debt. In practice, it operates similarly to a writ for the levy of
property against land, with the exception that leave of the court is required (rule 39.1 UCPR).

Disadvantage: Evidence of the debt must be produced and if the debt is not paid the creditor can
commence winding up proceedings on the basis that the corporation cannot pay its debts and is therefore
insolvent

The procedure for enforcing a writ for the possession of land is as follows:
- File a notice of motion (Form 59); and
- File a writ for the possession of land (Form 60); and
- Attach a supporting affidavit that satisfies the requirements in rule 39.3(2) UCPR, including the
identity of any persons who have occupied the land (other than the judgement debtor) if any, and
confirming that their occupation will not be disturbed.

Here, if Asset One is occupied by any persons with other land interests – say a tenant – then those interests
must not be disturbed. It is also important to note that rule 37.2 UCPR allows the judgement debtor to
circumvent this enforcement methods if they make a successful application to pay by instalments.

Charging Order

A charging order operates to charge specified property in favour of the judgement creditor to satisfy the
judgement. Per section 126 CPA, this order restrains the judgement debtor from dealing with security
interests other than in accordance with directions from the judgement creditor. It can be used in relation to
the following security interests:
- stock or shares in a public money
- money on deposit in financial institutions
- any equitable interests in property

Procedure
- form 74 charging order
- form 73 notice of motion
- affidavit in support (not more than 14 days prior to filing), stating amount payable, what has already
been paid off by other writs/garnishee/charging orders

The process for enforcing a charging order is to file a motion of motion, attaching a supporting affidavit
(rule 39.45 UCPR).
It is important to note that a charging order cannot be enforced until three months have expired from the
date of the order.

General knowledge in practice area

You will also be asked about ADR processes – please be familiar with them, what are the main ones? Also
see ASCR's Rule 7.

1) Knowledge of practice area

advising on costs of litigation and negotiating settlements

Costing litigious matters

 LPUL s6: legal costs are defined to include charges payable to a law practice, including disbursements
but not including interest

Disclosure of costs (LPUL ss174(1), (2) and (6))

o As soon as practicable after instructions are given, a law practice must provide a client with
written information disclosing:
 the basis on which costs will be calculated in the matter
 estimate of the total costs
 client’s right to negotiate a costs agreement
 client’s right to negotiate the billing method
 client’s right to receive a bill from the law practice
 client’s right to require an itemised bill after receiving a bill that is not itemised or
only partially itemised
 client’s right to seek the assistance of the designated local regulatory authority in the
event of a dispute about costs
 Ongoing obligation to disclose
o LPUL s174(1)(b): Law practice must disclose any significant change to anything previously
disclosed, including a sufficient and reasonable amount of information about the impact of
the change on the legal costs that will be payable, to allow the client to make informed
decisions about the future conduct of the matter
o LPUL s174(3): law practice must take all reasonable steps to satisfy itself that the client has
understood and given consent to the proposed course of action for the conduct of the
matter and the proposed costs
 LPUL ASCR r7.1: outlines that solicitor must provide clear and timely advice to assist
a client to understand relevant legal issues and to make informed choice about
action to be taken
 Disclosure thresholds
o LPUL sch 4 cl 18(3): disclose of costs not required where the estimated total legal costs are
less than $750
o LPUL sch 4 cl 18(4): if legal costs < $3,000, then law practice can
 make full disclosure to the client re s174(1), (2); or
 provide the client with a completed uniform standard disclosure form for the matter
(General Rules Sch 1, reg 72, LPUL s174(5A))
 Costs agreements
 o LPUL s180: the standard form of costs agreements includes a contract for the provision of
legal services. Must set out:
 amount of costs and disbursements;
 client’s right to receive a bill of costs (LPUL ss186-193); General Rules rr73, 74); and
 client’s right to request a review of the costs charged

BILLS OF COSTS – LPUL S 186-193

Types of costs

o Uniform law costs: solicitor/client costs; and

 the cost to the client for the work performed pursuant to the retainer.
 costs are those charged pursuant to your Costs Agreeement with the client
(personal)
 Client is responsible to pay their solicitor these costs in accordance with the retainer
whatever the outcome of the proceedings (unless no win/no fee)
 Successful party won’t be able to recover all costs from the other side (only
party/party)  will have to pay the solicitor/client portion themselves
 LPUL AA, LPUL Application Regulation: restrictions on what can be charged
 obtaining or enforcing a default judgement
 legal services and/or non-legal services in WCC
 Probate matters (non-contentious)
 Law practice will not be entitled to be paid for uniform law costs in excess of the fair
and reasonable costs fixed by the regulations (LPULs172(3))
o Ordered costs: party/party costs
 The costs to which one party to the proceedings is entitled to recover from another
party to the proceedings
 (court ordered costs – I define party/party costs as costs incurred in the pursuit of
litigation and/or dispute resolution –this includes anything to do with court
procedure such as drafting docs and attendances, correspondence with opponent
etc)

Power of the court to awards costs (CPA s98, Part 42 UCPR)

 Cost awards and assessment of ordered costs:
 Losing party usually ordered to pay the winning party’s costs
 But the winning party si still responsible to pay the Uniform Law costs
incurred to their own solicitor and will be reimbursed ordered csots received
from the losing party, and therefore will be out of pocket for the difference
 Losing party will be responsible for Uniform Law costs + ordered costs
awarded to the winning party
 Amount of ordered costs:
 Generally determined by the court, by agreement (e.g. after a court has made
an order for payment), or if an agreement is not reached, by a costs assessor
or by taxation
 Costs assessment
 Procedure for referring an ordered bill of costs for assessment
 Assessor must consider:
o LPUL s172 what is fair and reasonable for the services provided; and
o whether or not it was reasonable to carry out the services to which
the cosets relate
o Indemnity costs
 Client does not have the funds to pay fees.
  Legal aid, pro bono scheme, conditional fee agreements (agree to take on cases, fees
conditional on a successful outcome, litigation funding
 LPUL s171: Litigation funding: funder bears the risks and costs

Terminology
 Costs reserved:
o Costs of the hearing will be determined at a later occasion
 Costs in the cause
o Costs of an application will be payable by the party who is ordered to pay the costs at the
final hearing
 Costs to follow the event
o Costs will be payable by the unsuccessful party at the “event (e.g. interlocutory hearing)
 Costs to be the (party’s) in any event
o Party is entitled to the costs of the application (whatever the outcome of the final hearing),
but is not entitled to payment/assessment of the costs until the event
 Costs thrown away to be the (party’s) in any event
o Party is entitled to the costs they have incurred as a result of an action or omission by
another party
 No order as to costs
o Court makes no order. Each party pays their own costs
 Each party to pay their own costs (as above)
 Costs to be assessed taxed or agreed
o The party in whose favour the costs order is made will submit a bill to the paying party
o If the costs cannot be agreed, the costs will be assessed by a costs assessor
o Costs will be assessed on a party/party basis unless the court otherwise orders
 Costs to be paid on an indemnity basis
o More generous than party/party costs
o Awards in exceptional circumstances  where the conduct of a party justifies a departure
from the usual order

ADR
 Letter of demand from creditor
o Could be followed some sort of offer from the debtor to settle the matter (without prejudice)
 Informal settlement negotiations not successful then
 District Court’s mediation (CPA Pt 4; UCPR Pt 20 Div 1)

o Section 25 of the CPA defines mediation as: a structured negotiation process in

which the mediator, as a neutral and independent party, assists the parties to a
dispute to achieve their own resolution of the dispute

 Arbitration (CPA Pt 5; UCPR Pt 20 Div 2)

Negotiating settlements
unform state wide civil procedure to facilitate the just, quick and cheap resolution of real issues in the proceedings
(CPA s 56)

MAKING AN OFFER TO SETTLE

- Calderbank Letter Calderbank v Calderbank
o made without prejudice except as to costs
o costs are paid on ordinary basis and further agreement/assessment required
- can be expressed either inclusive or on a “plus costs” basis
- Formal offer of compromise can be used in prescribed form pursuant to Rr 20.5 – 20.32
 - if plaintiff makes formal offer and defendant does not accept  then plaintiff subsequently obtains
judgement no less favourable  plaintiff is entitled to an order that D pay P’s costs:
o assessed on ordinary basis up until offer was made
o from offer was made – trial: on an indemnity basis
o if offer made on first day of trial: from 11am on the day after
- Defendant makes offer that plaintiff rejects and then judgement as or less favourable
o plaintiff entitled to an order for D to pay P’s costs on an ordinary basis up until claim was made
o P pay D’s costs on an indemnity basis from day offer was made
o P pay D’s costs on an indemnity basis from 11am + 1 day after offer, if offer was made on first day of
trial
- Defendant makes offer, P rejects, D obtains favourable judgement (Rule 42.15A):
o P pay D’s costs on ordinary basis up until D’s offer
o P pay D’s costs on indemnity basis from when offer was made
o “”
ACCEPTING AN OFFER TO SETTLE
- Consent orders approved by Court: UCPR Form 44
- may also have to sign private deeds
- accepted without cost provisions? the party in whose favour judgement was entered is entitled to an order
for its costs to be paid by the other party assessed on an ordinary basis up until the offer is made (UCPR
42.13A)

RES JUDICATA AND RELEASES

- judgment that has occurred cannot be re-litigated
- normally a settlement agreement will provide for judgement, a full release or mutual releases so that the
issue cannot be re litigated
o claim preclusion  barring a suit from being brought again
o issue preclusion  bars the litigation of factual issues that have already been determined by a court
as part of an earlier claim

DOCUMENTING SETTLEMENT
- when proceedings not commenced: written agreement (deed of settlement and release used)
- proceedings commenced: need to file to end court proceedings by filing either terms of settlement or
consent orders, or a notice of discontinuance
o court has power pursuant to CPA s 73 to determine any question in the dispute between the parties
as to the terms of the settlement and make any appropriate orders
- notice of discontinuance does not effect a res judicata or a release – technically unless a release is signed
between parties it can be re-litigated
- when terms of settlement / court orders are granted they become orders of the court – need to make sure
they have jurisdiction
- separate or collateral agreement usually used for commercial terms or confidential things, or if the party
wishes to not have an adverse credit rating if it were recorded
** when drafting
 issues to be covered by the release or mutual releases
 cause of action
 factual scenario
 whether or not liability is admitted
 results

Ethics (EPR)
1) Ethics and professional responsibility
a. issues likely to arise in this practice area
b. governing principles and appropriate responses

 administration of justice as our paramount consideration (ASCR r3)

  through high standards of honesty, integrity, fairness, competency, respect and diligent (ASCR
r4.1.2, 4.1.3, 4.1.4 (independence) and 4.1.5 comply)
 across all dealing in the profession, when advancing our client’s best interests within the bounds of
the law (ASCR r 4.1.1)
 This is because the public and wider community place their trust and reliance in legal practitioner to
execute their professional and ethical obligations

Also look at the benefits of early negotiated settlement – it is not just about time and money – what do you
think might be some other benefits of a negotiated settlement?
 civil procedure to facilitate the just, quick and cheap resolution of real issues in the proceedings (CPA s 56)
 Client can move on with their life – closure quicker
 relationship with the opposing party is not as damaged – relationship is not beyond repair
 can be scarring to go to court

Rules 19.4 and 19.5 relating to ex parte matters that you looked at in Task 2. What do they mean and why
is it necessary to address them in an ex parte matter?
 ASCR r19: solicitor must not deceive or knowingly or recklessly mislead the court
 19.2: Solicitor must take all necessary steps to correct any misleading statement as soon as possible,
after the solicitor becomes aware that the statement was misleading

 Keep in mind that the submissions are in respect of the interlocutory matter only – not the
substantive dispute. It may be necessary to outline what the case is about. But you are not arguing
or putting evidence to the court about the substantive issue. Your submissions should be confined
to the affidavit evidence before the court, always reference the evidence to support your
submissions– in this case documents and affidavits. You cannot make unsupported statements or
assumptions and should not mention matters that do not go the elements of the rules/legislation
you are relying upon. Rules 19.4 and 19.5
o ASCR r3 and r4