Solicitors:
Marsdens Law Group (defendants/applicants)
Bartier Perry (first respondent)
(second respondent)
File Number(s): 2012/00169096
Decision under appeal File Number(s): 2012/00169096
[2]
Judgment
The factual background to these proceedings is described in earlier judgments of 27 July 2015 [1] ("the principal judgment") and 2 February 2016 [2] ("the consequential judgment"), with which these reasons should be read.
On 25 June 2012, following interlocutory proceedings between the parties (in which Aquatic sought to restrain the taking of steps by the Siewerts in exercise of their rights under the Security agreement, including pursuant to the Call Option which they purported to have exercised), a consensual interlocutory regime was established by orders of that date, relevantly as follows:
Upon the undertakings to the Court by the plaintiffs set out below and given by their counsel, the Court orders that:
Caveat number AG 914346 is extended until further order.
The defendants are restrained from transferring the property known as 2/13B Pearl Bay Avenue, Mosman, being Lot 2 in Strata Plan 55795 ("the property"), where 'transfer' means the act set out in order 1(a) and (b) made on 30 May 2012.
UNDERTAKINGS BY THE PLAINTIFFS
The usual undertaking as to damages.
The plaintiffs undertake to pay all outgoings and not default on any liability which would cause a breach of any agreement in relation to the property, including, but not limited to, the National Australia Bank mortgage, payment of council rates, water rates, strata fees, any such payments made being without prejudice to any rights the plaintiffs may have against the first and second defendants and as an interim measure only.
The plaintiffs by their solicitors will, upon request from the defendant's solicitor, provide any and all information relating to the liabilities in order 4 above, including confirmation that payment has been made.
The plaintiffs undertake not to transfer or deal with the property, including entry in any residential tenancy agreement or use it or allow the property to be used as security and will not encumber or draw on any present encumbrance or security in relation to the property in any way.
Aquatic Air undertake to remain in possession of the property and keep it in good maintenance and repair.
The present application is founded on the undertaking contained in paragraph 4 of the 25 June 2012 orders ("undertaking 4").
By 1 December 2014 - with the final hearing fixed to commence in February 2015 - it had become apparent that there had been default in respect of undertaking 4 since early 2014, in respect of amounts payable to the National Australia Bank under the mortgage of the Pearl Bay Ave property, and also as to outgoings for land tax, rates and strata levies, which by 18 December 2014 amounted in all to about $104,000, with the consequence that the equity in the property had been eroded by increasing the amount secured on it from $1.8 million to $1.904 million, and events of default under the mortgage were thereby committed, consequent upon which the National Australia Bank (as mortgagee) instituted proceedings for and ultimately obtained a judgment for possession, and exercised its mortgagee's power of sale. [3]
By motion of 24 November 2014, the Siewerts sought dismissal of the substantive proceedings on account of the default in respect of undertaking 4, and in a judgment given on 1 December 2014, I ordered that the proceedings be stayed unless the default was remedied by 15 December 2014. [4] On 10 December 2014, I dismissed an application by Aquatic and Mr Seller to be relieved from the undertaking. [5] As the default had not been remedied by 15 December 2014, the proceedings were stayed by the order of 1 December 2014.
However, on 18 December 2014, on the application of Aquatic, I dissolved the stay upon terms that included: [6]
The plaintiffs' filing, by 23 January 2015:
1. A written undertaking by Mr Seller to the Court and to the defendants that he will personally indemnify the defendants in respect of any loss which they are ultimately found by the Court to have suffered by reason of any default in respect of undertaking 4 given on 25 June 2012, and
2. Security for that undertaking by way of an unregistered second mortgage over the Mandemar property (or such alternative security as may be acceptable to the defendants or to the Court).
Contemporaneously, I discharged the injunction in paragraph 2 of the 25 June 2012 orders, for the reason that the balance of convenience had now shifted as the undertaking was no longer to be performed. [7]
The registered proprietor of the Mandemar property was Mr Seller's partner Ms Tankard, who was also a beneficiary of the Aquatic Trust and thus stood to gain from any success achieved by Aquatic as plaintiff in the proceedings. A written undertaken ("the indemnity undertaking") was provided by Mr Seller within the time specified, in the following terms (emphasis added):
Pursuant to the Orders of His Honour Mr Justice Brereton made on the 18th of December 2014, I personally undertake to indemnify Dieter Siewert and Liesolette Siewert in respect of any losses which may ultimately be found by the Supreme Court that they have suffered by reason of any breach by me of an undertaking given to the Supreme Court by Aquatic Air Pty Ltd and myself on the 25th of June 2012.
Ultimately - though not within the time specified - a mortgage by Ms Tankard of the Mandemar property was proffered, but in terms which did not comply with the order of 18 December 2014. This issue was ultimately resolved on 10 February 2015 (the first day of the final hearing), and on the following day, a mortgage by Ms Tankard dated 10 February 2015 was provided ("the Mandemar mortgage"), which was relevantly in the following terms:
The Mortgagor pursuant to the Orders of Brereton J of the Supreme Court of New South Wales made on the 18th December 2014 hereby:
(A) Mortgages and charges the property subject of this mortgage with all monies with respect to which Ross Edward Seller has undertaken to meet in favour of Dieter and Liesolette Siewert according to the document annexed and marked "Z".
Annexure "Z" was a copy of the undertaking in the form referred to in paragraph 8 above.
As a result, the stay was dissolved, and Aquatic's claims proceeded to trial in February 2015.
After the hearing, but before judgment was delivered, the National Australia Bank completed the mortgagee sale of the Pearl Bay Ave property. Upon completion of the sale, the mortgage liability exceeded $1.8 million by $148,965.68, and a further $63,334.43 was deducted from the proceeds on account of unpaid council rates, water rates, land tax and strata levies. After discharge of the mortgage and the payment of those liabilities, the surplus of $392,370.77 was paid into court.
The principal judgment [8] was delivered on 27 July 2015. Aquatic's claims to set aside the Share Sale agreements and the Security agreement failed. However, there was further argument as to the consequences, following which the consequential judgment [9] was delivered on 2 February 2016, when orders were made as follows:
The Court therefore:
Gives judgment that the first and second defendants pay the third plaintiff the sum of $81,486.95 (inclusive of interest);
Declares that the purported exercise by the first and second defendants of the Call Option granted by the third plaintiff to the first and second defendants by Deed of Call Option dated 13 October 2011, by notice of exercise dated 12 February 2012, was not valid or effective;
Gives judgment that the third plaintiff pay the first and second defendants, pursuant to Uniform Civil Procedure Rules, r 25.8, by way of compensation in connection with the interlocutory order made on 25 June 2012, the sum of $604,670.88;
Orders that the judgments in paragraphs (1) and (3) be set off, so that there is a net judgment that the third plaintiff pay the first and second defendants the sum of $523,183.93;
Orders that, from the moneys standing in court to the credit of these proceedings, the sum of $392,370.77 paid into court by the National Australia Bank on 10 July 2015 together with interest attributable to it be paid out to the first and second defendants in part satisfaction of the judgment referred to in paragraph (4);
Orders that the third plaintiff pay 80% of the first and second defendants' costs of the proceedings;
Orders that, from the moneys standing in court to the credit of these proceedings by way of security for the defendants' costs, the further sum of $110,000 be forthwith paid out to the first and second defendants, on account of and without prejudice to the costs to which they are entitled pursuant to order (6), subject to the first and second defendants' undertaking to the court that they will reimburse any sum by which the amount so received by them may exceed the amount ultimately allowed to them on assessment under that order;
Orders that there be liberty to apply in respect of the moneys remaining in court, and in the event of any difficulty arising in the implementation of these orders.
The Court notes that:
The undertaking referred to in order 7 is given.
The Court further orders that:
There be liberty to apply in respect of the security given to the court by Ms Susan Jean Tankard and any undertaking in connection therewith.
An appeal (and a cross-appeal) has been filed. Orders 3 and 7 have been performed. On 19 April 2016, following the hearing of the present application, and without opposition, I made an order staying, upon conditions, execution under the judgment insofar as it remained outstanding, pending the hearing of the appeal or further order.
The present application
By motion originally filed on 7 March 2016 and subsequently amended on 21 March 2016, the Siewerts now seek, by way of enforcement of the indemnity undertaking and the Mandemar mortgage, judgment against Mr Seller for $126,848.19, an order that Ms Tankard pay them $126,848.19, and judgment for possession and orders for judicial sale of the Mandemar property. Because of the pendency of the appeal, they are content not to press at this stage the claims for possession and sale, but seek to have the liability, which the Mandemar mortgage secures, determined and quantified.
Although proceedings for judicial sale against a person not a party to the original proceedings might usually more appropriately be brought in new proceedings, or at least require the joinder of Ms Tankard, the terms of the liberty to apply reserved in order 10 of 2 February 2016 may well render it not inappropriate to bring them in these proceedings, provided that due notice of the application and an opportunity to be heard is afforded to Ms Tankard and Mr Seller, as it has been. That is all the moreso where the application (at least in so far as it concerns Mr Seller) is one that essentially invokes the court's jurisdiction to enforce in a summary way an undertaking given to it in the proceedings in which the application is brought, as well as the jurisdiction to order a judicial sale to enforce an equitable mortgage given to secure an obligation incurred in connection with the substantive proceedings. In any event, ultimately no objection was taken to the present application being brought by motion in the substantive proceedings.
Essentially what the Court is presently asked to do is to determine, as a preliminary step to a judicial sale, the liability that is secured by the Mandemar mortgage, and in the course of doing so to give a judgment against Mr Seller in enforcement of the indemnity undertaking. Although the motion claims an order for the payment of a sum of money by Ms Tankard personally, that claim is misconceived because she assumed no personal liability: while she provided security for Mr Seller's indemnity undertaking, she gave no personal undertaking or covenant. Thus, while her property secures the indemnity undertaking and the Siewerts may (if otherwise entitled) have recourse to it by way of security, they have no personal remedy against her, and Mr DeBuse accepted that a claim for a monetary judgment against her personally could not be sustained; rather, what was sought was a declaration as to the amount that is secured by the Mandelmar mortgage, as a precursor to an ultimate judicial sale.
Mr Seller, however, did assume personal liability, both by the original undertaking 4 to which he was party as a plaintiff, and by the indemnity undertaking. At the time of the 25 June 2012 orders and undertakings, Mr Seller (as well as Aquatic) was a plaintiff, and although he subsequently ceased to be a plaintiff, that did not have the effect of relieving him from those undertakings.
Mr Bruckner submitted that it was too late now to seek such a judgment against Mr Seller (and Ms Tankard). This argument was put on several bases, in particular that the Court was functus officio, and that liability under the indemnity undertaking (and thus the Mandemar mortgage) was conditioned upon there being a prior finding of the Court of the amount of the loss occasioned by the default in respect of undertaking 4, reflected in a judgment or order made in the substantive proceedings against Mr Seller.
As to the first, I do not accept that the Court is functus officio, or that it is not now open to the Siewerts to seek a further judgment against Mr Seller in respect of the indemnity undertaking or judicial sale in respect of the Mandemar property. Such relief could not have been obtained against either of them in the substantive proceedings: Mr Seller had ceased to be a party to the principal proceedings before the indemnity undertaking was given, well before the final hearing, and Ms Tankard was never a party. The indemnity undertaking was effectively one by a third party, and the mortgage to secure the indemnity undertaking was a third party mortgage by a person not party to the proceedings. Whether loss was occasioned by a default in respect of undertaking 4 would not be capable of determination until the outcome of the substantive proceedings was known. Moreover, the liberty to apply reserved in paragraph 10 of the 2 February 2016 orders expressly contemplated such an application.
As to the second, I do not accept that liability under the indemnity undertaking (and thus the Mandemar mortgage) is conditioned upon there being a prior judgment in the substantive proceedings against Aquatic and/or Mr Seller for the amount of loss occasioned by any default in respect of undertaking 4. The indemnity undertaking was expressed to be in respect of loss found by the Court to have been suffered, but that does not require that any prior judgment or order have been given or made in respect of that loss. The reference in the indemnity undertaking to "any loss which they are ultimately found by the Court to have suffered" is analogous to the terms of the "usual undertaking". In my view, such a "finding" might be made on an inquiry after judgment, or in connection with proceedings for judicial sale by way of enforcement of the Mandemar mortgage.
The Mandemar mortgage secures only the liability of Mr Seller under the indemnity undertaking. The indemnity undertaking is in respect (only) of any loss which the Siewerts are ultimately found by the Court to have suffered by reason of any default in respect of undertaking 4. In order to invoke the indemnity undertaking (and consequently the Mandemar mortgage) the Siewerts have to establish (1) that there has been a breach of undertaking 4, (2) that that breach has caused them loss, and (3) the quantum of that loss.
Breach of undertaking 4
As to breach, while I do not accept Mr Bruckner's submission that this involves proof of a breach of the undertaking to the standard that would be required on a contempt application, there appears no real doubt about the question of breach here: from early 2014, until completion of the mortgagee sale in mid-2015, the routine mortgage instalments, land tax and other outgoings including council rates, water rates and strata levies were not paid as and when they fell due. Although upon completion of the mortgagee sale, the mortgage liability exceeded $1.8 million by $148,965.68, and a further $63,334.43 was deducted from the proceeds on account of unpaid council rates, water rates, land tax and strata levies, there is force in the submission that the undertaking continued only until 18 December 2014, when the injunction in connection with which it was given was discharged, although the undertaking was not expressly released; the best evidence is that at that stage, approximately $104,000 payable under undertaking 4 had not been paid. [10]
Focusing on the words "breach by me" in the indemnity undertaking, Mr Bruckner submitted that the indemnity undertaking was confined to a breach by Mr Seller personally of undertaking 4, and that as payment of the outgoings was a liability of Aquatic, there was no breach by Mr Seller personally. However, undertaking 4 was given by "the plaintiffs", who then included Mr Seller; as I have previously observed, his ceasing to be a plaintiff did not relieve him from that undertaking. Thus, undertaking 4 was a joint and several undertaking that the outgoings would be paid, which imposed liability on Mr Seller personally as much as on Aquatic. Mr Seller thereby incurred a personal obligation to pay the outgoings, and not merely one as a director of Aquatic to do what he could to cause Aquatic to pay them. But even if, as Mr Bruckner contended, it imposed liability on him only as a director of Aquatic to cause Aquatic to pay (which I do not accept), he failed to cause Aquatic to pay. Moreover, although the words "by me" appear in the terms of the undertaking as given, the condition imposed by the Court on 18 December 2014 was not so limited and, by taking the benefit of the order, Mr Seller must be regarded as having accepted its terms.
For these reasons, I am satisfied that there has been a breach by Mr Seller (and default in respect) of undertaking 4, such as to trigger the indemnity undertaking, in that, from early 2014 until 18 December 2014, outgoings in respect of the Pearl Bay Ave property totalling approximately $104,000 - including routine mortgage instalment repayments, council rates, water rates, strata levies, and land tax of about $45,000 - were not punctually paid, with the consequence that events of default under the National Australia Bank mortgage were committed, and the equity in the property was eroded by increasing the amount secured on it from $1.8 million to $1.904 million.
Did default in respect of undertaking 4 cause loss?
The real issue is whether the Siewerts have suffered loss by reason of that default. Mr DeBuse argued that in the context that undertaking 4 and the indemnity undertaking were undertakings to the Court, the Siewerts ought not have to demonstrate that their judgment would not or could not otherwise be satisfied by Aquatic; and that the purpose of the security requirement was to ensure that additional assets beyond those of Aquatic would be available. The second element of that argument is correct, but only to a limited extent: the purpose was to ensure that additional assets would be available to satisfy any liability that might arise in respect of loss caused by breach of undertaking 4, in circumstances where Aquatic and Mr Seller were seeking to be relieved of the consequences of not having performed that undertaking by having the stay of the main proceedings dissolved, it appearing that Aquatic was impecunious. The purpose of the indemnity undertaking and the security requirement was endeavouring to ensure that if it transpired that failure to comply with undertaking 4 occasioned loss to the Siewerts, then they would be able to have recourse against assets additional to those of Aquatic to satisfy any award of compensation for that breach. However, the additional assets were not made available for any other purpose - such as satisfying any loss compensable under the undertaking as to damages. Thus, only to the extent that the Siewerts could demonstrate that they had suffered loss because of the default in respect of undertaking 4, were they to have the additional comfort of the indemnity undertaking and the Mandemar mortgage to secure that loss. It would be wrong to answer the question whether loss was suffered as a result of a breach of undertaking 4 by assuming the availability of those additional resources, because to do so would overlook the essential questions: what if any difference would performance of undertaking 4 have made, and is the loss claimed within the scope of that against which the undertaking was intended to protect.
Nor do I accept that the approach espoused in European Bank Ltd v Evans [11] is apt in these circumstances. Evans was concerned with the scope of liability under "the usual undertaking as to damages", in determining what losses could be said to be occasioned by an interlocutory injunction. In that context, one is concerned to identify what an interlocutory injunction has prevented, and how that has occasioned loss or damage; no question of loss flowing from a breach arises. In the present context of the indemnity undertaking, the question is not what loss of damage flowed from the giving of the undertaking, but what flowed from its breach.
When the undertaking was given, it was in contemplation that the Siewerts had, or at least may have, an equitable interest in the property under the Security agreement and/or the Call Option. In that context, allowing the mortgage to exceed $1.8 million, and not paying outgoings, had obvious potential to cause loss to the Siewerts by eroding the equity in the property to their detriment. The purpose of undertaking 4 was to avoid that detriment; and by doing so, it weighed in the balance of convenience in favour of restraining the Siewerts from exercising their contractual rights under which they could have acquired and/or sold the property pending the hearing, because it was intended to have the effect of preserving the equity. The undertaking was given, as part of the price for an interlocutory restraint on the Siewerts exercising their powers under the power of attorney and Call Option, to preserve the equity and to maintain the balance of convenience.
That the Siewerts did not have an equitable interest did not really emerge as a possibility until after the principal judgment, during argument about the consequential orders, and was resolved only in the judgment of February 2016. But as it eventuated, although Aquatic's application to set aside the Share Sale agreements and the Security agreement failed, the Siewerts had no equitable interest in the property, and, by the time of the mortgagee sale, their contractual rights had also expired. Accordingly, the surplus proceeds of sale, after discharge of the National Australia Bank mortgage, belonged beneficially to Aquatic.
The Siewerts were held entitled to damages, pursuant to the undertaking as to damages - not pursuant to undertaking 4 - because the interlocutory restraint had (wrongly) denied them the opportunity to exercise their contractual rights in respect of the property under the Call Option and/or the power of attorney, which they otherwise would have exercised. The result was a judgment against Aquatic for damages - not an interest in or security on the property. It is important to appreciate that the funds in court were paid out to the Siewerts in part satisfaction of that judgment, not as a matter of beneficial entitlement, but as a matter of convenience: it was a shortcut for payment out to Aquatic and enforcement proceedings against Aquatic by the Siewerts. [12]
The outgoings in question were in respect of a period after 31 October 2012 when the Siewerts' rights in respect of the Pearl Bay Ave property expired, and were not the responsibility of the Siewerts under the Security agreement; [13] in the events which happened, they were always the responsibility of Aquatic. And when the Pearl Bay Ave property was sold by the National Australia Bank as mortgagee, all the arrears of unpaid outgoings were deducted from the net proceeds before the balance - to which Aquatic was beneficially entitled - was paid into Court. Thus ultimately, although belatedly, the outgoings were in fact paid by Aquatic, by deduction from the proceeds of sale to which Aquatic was otherwise beneficially entitled.
In that light, the Siewerts could not sustain an argument that they had suffered loss through erosion of equity in the property. Their case became that had the outgoings been paid in a timely manner in compliance with undertaking 4, the deductions from the sale price upon settlement would have been less, the funds in court would have been correspondingly enhanced, and there would have been a greater fund in Court available to satisfy the judgment in their favour. Thus the Siewerts' case was, in essence, that had the outgoings been paid when they ought to have been paid in compliance with undertaking 4, "there would have been more money available"; or alternatively put, that the failure to pay them punctually meant that at the time of sale, the net proceeds available to pay out the Siewerts were reduced, or that there was "a loss in the available funds to meet the undertaking as to damages".
This is illustrated by the manner in which the Siewerts sought to quantify their loss, by reference to the amount of the net judgment in their favour which has not been satisfied by payment out of the funds formerly in Court: Mr DeBuse submitted that the approach taken in the quantification judgment in respect of the loss arising from the usual undertaking as to damages was applicable, namely that Siewerts' loss was not less than $604,670.88 - being the sum of (a) the amount of the net proceeds paid into court by the National Australia Bank (being $392,370.77), plus (b) the amount by which the mortgage at the time of the mortgagee sale exceeded $1.8 million (namely $148,965.68), and (c) the net amounts deducted by the mortgagee for council rates, water rates, land tax and strata levies ($63,334.43) [14] - and that after giving credit for receipt of the payment out of court of $392,370.77, and setting off the judgment in favour of Aquatic, that left an unpaid balance of $126,848.19, which was claimed from Mr Seller on the indemnity undertaking and as the sum secured by the Mandemar mortgage.
Thus, the Siewerts' case was that failure to perform the undertaking resulted in there being a smaller fund available to satisfy the Siewerts' judgment for damages on the undertaking as to damages than would have been available had the undertaking been performed. Understanding the case that way is important in appreciating its faults.
So understood, the case is about Aquatic's capacity to satisfy an (unsecured) liability, and in particular whether that capacity has been reduced by the default in respect of undertaking 4. There is no evidence that, save for the payments out of court, there has been any unsuccessful attempt to enforce the judgment; in any event, execution is now stayed pending the appeal. Whether Aquatic is unable to satisfy the judgment is thus not clearly established, although there is good reason to suppose that it is impecunious, as its impecuniosity was the foundation of the applications for relief from undertaking 4 and dissolution of the stay in late 2014. [15] But assuming that Aquatic does not have the capacity to satisfy the balance of the judgment, the question is whether it would have been in a better position to do so had there been no default in respect of undertaking 4.
In my view, Aquatic could not and would not have been in any better position to satisfy the judgment in favour of the Siewerts had undertaking 4 been fully performed. This is because, to pay the outgoings as and when they fell due, it would and could have done so only from its own resources (other than the Mosman property, adverse dealing with which was restrained), or by borrowing (in which case it would have incurred a commensurate liability for the loan). If Mr Seller had paid the outgoings on behalf of Aquatic from other resources, he would have become a creditor of Aquatic to that extent (and, because the outgoings were secured liabilities, probably a secured creditor by subrogation). Thus, either Aquatic's assets would have been reduced, or its liabilities increased, by performance of the undertaking. Upon completion of the sale of the property, its ultimate net asset position available to satisfy the Siewerts' unsecured judgment would have been no better. Contrary to Mr DeBuse's submission, there would not have been more money available; performance of undertaking 4 would not have resulted in there being a greater fund ultimately available to satisfy the Siewerts' judgment.
Moreover, the requirement for the undertaking was not directed to preserving Aquatic's net assets to satisfy such a judgment, but to avoid the eroding of equity and the committing of an event of default which might trigger a mortgagee sale. The Siewerts have not sought to establish that they suffered loss by reason of the mortgagee sale. They did not suffer loss by the erosion of equity, because as it transpired they had no equitable interest. Such loss is outside the scope of what was sought to be preserved by the undertaking.
If it had transpired that the Siewerts were entitled to an equitable interest in the property, then they would have suffered loss of the kind in respect of which they were intended to be protected by undertaking 4, because the equity would have been eroded by the accrual of the unpaid outgoings. But they were not.
Accordingly, in my view, the Siewerts have not established that they have suffered loss by reason of any default in respect of undertaking 4. It follows that the indemnity undertaking is not engaged, and the Mandemar mortgage secures no liability.
Other issues
That conclusion renders it unnecessary to consider a number of other arguments raised by Mr Bruckner. However, had the loss claimed by the Siewerts been causally attributable to default in respect of undertaking 4, then I would not have accepted that they were precluded by any principle concerning double recovery from recovering it under the indemnity undertaking and the Mandemar mortgage, even though it overlaps loss for which they have been compensated by the judgment in respect of the usual undertaking as to damages - although to the extent that judgment in respect of one was satisfied, they would not be entitled to recover under the judgment of the other.
Conclusion
In my view, the Siewerts have not established that they have suffered loss by reason of any default in respect of undertaking 4. It follows that the indemnity undertaking is not engaged, and the Mandemar mortgage secures no liability. It would also apparently follow that Ms Tankard is entitled to a discharge of the Mandemar mortgage.
The Court therefore orders that:
1. the defendants' motion filed on 7 March 2016 and amended on 21 March 2016 be dismissed with costs;
2. the defendants execute and deliver to Ms Tankard a discharge of the Mandemar mortgage.
[3]
Endnotes
Aquatic Air Pty Limited v Siewert [2015] NSWSC 928.
Aquatic Air Pty Limited v Siewert (No 2) [2016] NSWSC 10.
AT Air Group Pty Limited v Dieter Siewert (No 7) [2014] NSWSC 1826 at [17].
AT Air Group Pty Ltd v Siewert [2014] NSWSC 1709.
AT Air Group Pty Ltd v Dieter Siewert (No 6) [2014] NSWSC 1777.
AT Air Group Pty Limited v Dieter Siewert (No 7) [2014] NSWSC 1826.
AT Air Group Pty Limited v Dieter Siewert (No 7) [2014] NSWSC 1826 at [29].
Aquatic Air Pty Limited v Siewert [2015] NSWSC 928.
Aquatic Air Pty Limited v Siewert (No 2) [2016] NSWSC 10.
See AT Air Group Pty Limited v Dieter Siewert (No 7) [2014] NSWSC 1826 at [17].
[2010] HCA 6; (2010) 240 CLR 432 at [18] and [29].
See Aquatic Air Pty Limited v Siewert (No 2) [2016] NSWSC 10 at [16]-[18], [38], [45], [48].
See Aquatic Air Pty Limited v Siewert (No 2) [2016] NSWSC 10 at [23].
See Aquatic Air Pty Limited v Siewert (No 2) [2016] NSWSC 10 at [35].
See AT Air Group Pty Ltd v Dieter Siewert (No 6) [2014] NSWSC 1777; AT Air Group Pty Limited v Dieter Siewert (No 7) [2014] NSWSC 1826.
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Decision last updated: 29 April 2016