In civil cases, facts must be proven on the balance of probabilities to the court’s actual persuasion. How, then, should a court assess whether a witness is telling the truth? In this blog post, I describe some of the factors a court might consider.

The New South Wales Court of Appeal, in a split decision, has allowed an appeal against a judgment granting equitable set-off. The Court’s decision provides a useful overview of the law of equitable set-off. In overturning the trial judge’s decision, the Court also considered the scope and application of the so-called Brickenden principle which prohibits speculation by a defaulting fiduciary as to what would have happened had there been no default.

The defendants in a proceeding made a Calderbank offer to settle four days prior to trial — including a weekend. The plaintiffs rejected their offer, went on to lose at trial, and were ordered to pay indemnity costs as a consequence of the offer’s rejection. The decision in SSABR Pty Ltd v AMA Group Ltd (No 2) [2024] NSWSC 24 explains why.

Where a third party receives property following a breach of trust or a breach of fiduciary duty, equity may intervene to claw back what they have obtained — but only where the third party had the requisite knowledge of its source. In Goway Travel Pty Ltd v Critchley [2024] NSWSC 2, the Court identified the way in which a knowing recipient’s degree of knowledge at law can evolve, in this case progressing from constructive knowledge to actual knowledge.

Where an expert has used notes as the basis for expressing a verbal opinion to briefing solicitors, to the extent they are not necessarily used in the preparation of an expert report can those notes be privileged?

In Patel v Sengun Investment Holdings Pty Ltd [2023] VSCA 238, the Victorian Court of Appeal has held that a document styled as a ‘Heads of Agreement’ for the sale of land was capable of specific performance as a binding contract. This was in circumstances where the Court accepted the document’s characterisation as a contract not for the purchase of the subject property but for a ‘call option’ for its potential later purchase.

What does it mean to ‘ratify’ an agent’s breach of authority? And what might the consequences of ratification be for the principal, including in terms of the principal’s ability to later litigate a related claim? This case note explores those issues in light of the New South Wales Supreme Court decision in Shao v Crown Global Capital Pty Ltd [2023] NSWSC 820.

The Victorian Supreme Court has recently clarified an area of law otherwise ‘not highly defined or clearly stated’: the equitable doctrine of ‘marshalling by apportionment’. In the case of Callisi Pty Ltd v Sterling & Freeman Advisory Pty Ltd [2023] VSC 300, M Osborne J addressed competing arguments regarding the application of the rule of equity capable of impacting the ability of a first-ranking secured interest-holder to realise its security across multiple assets.

The Full Court of the Federal Court has ruled on the question of whether or not a person seeking to trace money or property must first establish the existence of a fiduciary relationship. In analysing the divergent views evident in a number of cases, the Court in RnD Funding Pty Ltd v Roncane Pty Ltd [2023] FCAFC 28 unanimously held that a fiduciary relationship is not a precondition.

Typically, a plaintiff suing for breach of trust or breach of fiduciary duty must elect between different and inconsistent equitable remedies: either equitable compensation or an account of profits. The New South Wales Court of Appeal has considered the question of whether a plaintiff can overcome this need for choice when suing multiple defendants, and the Court’s decision in Xiao v BCEG International (Australia) Pty Ltd [2023] NSWCA 48 sets out the guiding principles for when a plaintiff may make a ‘split election’.

In the case of Pugwall Pty Ltd v Arthur McKenzie Investments Pty Ltd [2022] VSCA 272, the Court of Appeal ruled on the question of whether a director of a company, in signing a guarantee on the company’s behalf, was personally bound by that guarantee. More broadly, the Court considered the question of whether, and in what circumstances, a person objectively has intended to be bound by a contract even if — and the Court’s decision serves as a potent reminder of this — that person may not (subjectively) have intended so.

The decision in Break Fast Investments Pty Ltd v Sclavenitis [2022] VSC 288 involved a plaintiff, as corporate trustee in liquidation, claiming to be assignee of a right to recover a debt paid for by a guarantor and seeking to enforce that right. In ruling on the question of whether or not the plaintiff had standing to bring its action, the Court addressed the law governing the power of a former trustee as bare trustee to deal with trust assets and the powers of a liquidator of a bare trustee in similar respects.