Marello and Marello (No 2)

This matter concerned an application by the Husband to discharge an interlocutory undertaking given by the Wife. The dispute arose in the context of family law proceedings, with Kent J presiding.

The central legal issue before the court was whether it possessed the power to release a party from an interlocutory undertaking, particularly in the absence of the other party's consent or a mistake operative at the time the undertaking was given. The court was required to consider the principles governing the discharge or modification of such undertakings, and the circumstances under which such relief might be granted.

Kent J, applying the principles established in *Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc* and followed in subsequent authorities such as *Mitty v Mitty & Ors*, affirmed that a court retains control over its interlocutory orders, including those based on undertakings. The court has the power to discharge or modify an undertaking if new facts emerge or are discovered that render its enforcement unjust, or if good grounds are shown. This power is not limited to cases of mistake, but rather reflects the court's ongoing discretion to make orders that are just and equitable. The court noted that such an application is not an attempt to set aside a contract, but rather an exercise of a right reserved by the terms of the undertaking itself. However, a party cannot relitigate a matter already decided unless there has been a significant change in circumstances or new facts have become known.

The Husband's application was dismissed. The Wife was ordered to pay the Husband's costs of the application on a party and party basis. Furthermore, the Wife was directed to remedy her admitted breach of undertaking within thirty days, with the quantum of any further breach to be reserved for the trial of the substantive proceedings.