Nicholls v Hertslet

In the case of Nicholls v Hertslet, the parties involved were Nicholls, the applicant, and Hertslet, the second respondent. The dispute centred around the use of documents produced by a consent order in proceedings in the Supreme Court of New South Wales. The legal issues to be decided were whether an implied undertaking not to use these documents for a purpose outside those proceedings applied to the Trustee in bankruptcy in relation to documents used for the administration of an estate to which the bankrupt is a beneficiary, and whether special circumstances existed to warrant the grant of leave to use the documents. The court had to determine if the Trustee's failure to seek leave before using the documents was justified under the circumstances.

The court ruled that the implied undertaking did not extend to the Trustee in bankruptcy in relation to documents used for the administration of an estate. It further held that the Trustee's use of the documents without seeking leave was not justified as there were no special circumstances present. The court emphasised the importance of seeking leave before using such documents and the consequences of failing to do so. The court granted leave to discontinue the substantive proceedings but required the second respondent to pay the applicant's costs of the interlocutory application and any other costs of the substantive proceedings.

The final orders of the court were that the second respondent must pay the applicant’s costs of the interlocutory application as taxed or agreed. Additionally, leave was granted to the applicant to discontinue the part of the application filed on 15 December 2015 brought against the second respondent. The second respondent was also ordered to pay the applicant’s costs, including reserved costs, of the application filed on 15 December 2015 brought against the second respondent as taxed or agreed. These orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.