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Stokes v Toyne

Stokes v Toyne

Case [2021] NSWSC 1049 20 August 2021

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Abuse of Process

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Nicholas Arthur Stokes v Molly Harriss Toyne [2021] NSWSC 1049
Hearing dates: 18 August 2021
Date of orders: 20 August 2021
Decision date: 20 August 2021
Jurisdiction: Equity - Duty List
Before: Rein J
Decision:
See [26], [27], [31], [32] and [35]

Catchwords:
CIVIL PROCEDURE — Implied undertakings in respect of evidence served by the Defendant in these proceedings — Release from — Special circumstances — Plaintiff seeks to use that evidence in answer to proceedings in the Federal Circuit Court of Australia and District Court of New South Wales commenced by the Defendant — Consideration of whether the implied undertaking applies to the evidence — Consideration of whether, if the Harman undertaking applies to the evidence, the Plaintiff should be released from that undertaking — Held: Implied undertaking does not apply to the evidence — Plaintiff permitted to use the evidence in the Federal Circuit Court of Australia and District Court of New South Wales
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings — Consideration given as to whether a costs order should be made in respect of the Plaintiff’s application — Held: there be no order as to costs

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919 (NSW)

Cases Cited:
Benecke v National Australia Bank (1993) 35 NSWLR 110
Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Frigger v Trenfield (No 5) [2020] FCA 827
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104
Nicholas Arthur Stokes v Molly Harris Toyne [2019] NSWSC 274
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R, On The Application of John Patrick Davey v Ronald David Silverstein [2020] VSCA 233
Riddick v Thames Board Mills Ltd [1977] QB 881
Springfield Nominees Pry Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 7) [2020] NSWLEC 140

Texts Cited:
Nil

Category: Principal judgment
Parties: Nicholas Arthur Stokes (Plaintiff)
Molly Harriss Toyne (Defendant)
Representation:
Counsel:
Mr N Oram (Plaintiff)
Solicitors:
Baker Deane & Nutt Solicitors (Plaintiff)

File Number(s): 2017/205679
Publication restriction: Nil

Judgment

The Court has before it a Notice of Motion filed on 11 August 2021, by which the Plaintiff, Mr Stokes, seeks to be able to use evidence served in these proceedings in proceedings in the Federal Circuit Court of Australia and the District Court of New South Wales. Mr Stokes recognises that there may be a restriction by reason of the implied undertaking recognised in Harman…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stokes v Toyne

Details

AGLC: Stokes v Toyne [2021] NSWSC 1049
Case: [2021] NSWSC 1049
Decision Date: 20 August 2021

CaseChat Overview and Summary

In the case of Stokes v Toyne, the plaintiff sought to use evidence that the defendant had served in the proceedings before the Federal Circuit Court of Australia and the District Court of New South Wales. The plaintiff argued that the defendant had impliedly undertaken not to rely on the evidence, and sought to use it in answer to proceedings brought by the defendant. The primary issue before the court was whether the implied undertaking applied to the evidence and, if it did, whether there were special circumstances that should release the plaintiff from that undertaking.

The court found that the implied undertaking did not apply to the evidence in question. The court reasoned that the evidence had not been relied upon in the initial proceedings, and therefore no undertaking had been given in respect of it. The court also considered whether there were special circumstances that should release the plaintiff from any implied undertaking, but found that there were none. The court held that the plaintiff was not bound by any implied undertaking in respect of the evidence and was therefore permitted to use it in the Federal Circuit Court of Australia and the District Court of New South Wales.

The court also considered whether a costs order should be made in respect of the plaintiff's application. The court noted that the proceedings were complex and involved significant legal issues, but ultimately decided not to make a costs order. The court found that there were no exceptional circumstances that warranted a departure from the general rule that costs follow the event. Therefore, there was no order as to costs in the proceedings.

Orders