LWZ317 Civil Procedure Assessment 2 – Australia.

Subject Code & Title: LWZ317 Civil Procedure
Word Count: 3,000 words (+/- 10%).
This assessment will be given a mark out of 60 and is worth 60% of your marks for the unit.The assessment is comprised of Part A, Part B and Part C. You must answer all three parts.Submit your answers to all three parts together in one word document through learn line.Make sure each part is clearly labelled.The word limit for the three parts combined is 3,000 words (+/-10%).Create a header for your assignment. In your header include your name, student number,date submitted, total word count, and ‘LWZ317 Civil Procedure Assessment 2’. For example, a header will look similar to this;
LWZ317 Civil Procedure Assessment 2 – Australia.

Extension requests are not processed by individual lecturers – they are processed centrally by the College. Please see Law Central 2021 for the extension request policy and late submission penalties, and direct any extension related queries to law@cdu.edu.au. Please
also make sure you are familiar with the penalties for late submission.

You must use AGLC referencing where appropriate. Reasonable references in footnotes do not count towards the total word count. Reasonable headings and subheadings do not count towards the word count. Your answers must use complete sentences (other than headings).

Please refer to the relevant Northern Territory Supreme Court Rules, Practice Directions and authorities in your answers.

Part A:
1.On 13 June 2021 the plaintiff in a civil proceeding made an offer of compromise pursuant to Order 26 of the Supreme Court Rules (NT) to settle the plaintiff’s claim against the defendant. The defendant rejected the offer. On 29 September 2021 the plaintiff received judgment in her favour. The judgment was more favourable than the amount of the defendant’s offer of compromise. The plaintiff has paid your solicitor’s costs in the amount of $250,000 inclusive of GST. The Court has made orders in
respect of costs as follows:

(i) The defendant is to pay the plaintiff’s costs up to 13 June 2021 on a standard basis, to be taxed or agreed.
(ii) The defendant is to pay the plaintiff’s costs from 14 June 2021 on an indemnity basis, to be taxed or agreed.

Provide your client with a written letter of advice in relation to the costs order, in particular:

a.The difference between costs on an indemnity basis and costs on a standard basis, including an explanation as to why the costs are payable from 14 June 2021 on an indemnity basis;
b.What procedure is available to the plaintiff if there can be no agreement reached between the parties as to costs and explain that procedure; and
c.Whether the client will likely recover $250,000 in costs given the orders made, and if not, why not.

2.Discuss the advantages and disadvantages of alternative dispute resolution (ADR) methods, with particular reference to at least 3 ADR methods.

Part B:
In or about January 2017 Peter loaned his brother Cameron, and Cameron’s wife, Stacey, the sum of $200,000 so they could purchase a house in Darwin. Cameron and Stacey separated in September 2020 and sold the Darwin house in 20 November 2020. On or about 30 November 2020 Peter, having discovered that the Darwin house had sold, demanded repayment of the moneys from Cameron and Stacey.

Cameron and Stacey deny any moneys are owing and allege that the $200,000 was in fact a compromise of an earlier claim for moneys paid by Cameron to Peter in 2015 to help him establish his landscaping business.

Peter commenced proceedings in the Supreme Court NT seeking judgment against Cameron and Stacey.

Peter alleges that the agreement with Cameron and Stacey in January 2017 was that Cameron and Stacey were both jointly and severally liable and the loan was to be repaid to Peter on 2 January 2021 or upon the sale of the Darwin house, whichever was the earlier. He alleged the agreement was documented by Stacey at a family meeting but he doesn’t have a copy of the document Stacey prepared. Peter does recall transferring the monies to Cameron’s bank account partly by EFT transfer and by way of cheques given to Cameron and Stacey.

Cameron and Stacey allege that the moneys were either a gift, or a repayment of monies loaned to Peter in 2015 for his landscaping business. Cameron and Stacey allege that the moneys that were paid in 2015 were paid by way of $50,000 instalments and while there was no formal loan agreement, there were communications via email, letters and text messages,between Stacey and Peter that demonstrated that Peter would repay the money at some stage
in the future.

LWZ317 Civil Procedure Assessment 2 – Australia.

(a) Prior to the commencement of proceedings, the parties participated in the PD6 of 2009 process.

What categories of essential documents should have been exchanged?

(b) During the proceedings, the Associate Judge agrees to make an order for discovery in accordance with the Supreme Court Rules as the parties are dissatisfied with the exchange of documents during the PD 6 of 2009 process. Cameron’s List of Documents doesn’t include any of the documents relevant to the monies paid to
Peter in 2015 or the documented agreement prepared by Stacey. Explain what steps are open to Peter pursuant to the Supreme Court Rules to seek discovery of the relevant documents.

(c) Assume that Cameron and Stacey are now estranged. Assume that you act for Peter and that you have filed a Writ and statement of claim on his behalf in the Supreme Court. Stacey is named as a second defendant as Peter alleges that Cameron and Stacey are jointly and severally liable. Your process server, Joe Smith, has conducted the usual searches to locate Stacey in order serve her with the Writ but has been unable to effect service. Peter is aware that Cameron and Stacey have 2 adult daughters, Melanie and Jessica, who both reside in Perth. You are also aware that Stacey’s parents reside in Perth. Social media searches of Melanie and
Jessica reveal that in the last 2 months Stacey was with Melanie. Draft an application for substituted service together with the supporting affidavits you consider necessary to succeed on this application.

Part C:
You act for Penny Jones, an owner of property in Cullen Bay, NT. Penny engaged Fred Crawley (architect) to design a luxury mansion for the property. She subsequently engaged Cavill Builders Pty Ltd (building company) to build the mansion on the property. Ted Cavill is the sole director and shareholder of Cavill Builders Pty Ltd. Following the construction of the mansion, it became apparent that due to poor design and construction, Penny’s house needed major rectification works to rectify various defects. Penny sued both Crawley and Cavill Builders Pty Ltd and obtained judgment against both defendants. Neither Crawley nor Cavill Builders Pty Ltd had sufficient insurance to cover the total amount of the judgment. Crawley was personally liable for $250,000 and Cavill Builders Pty Ltd was liable for $800,000.

During the Trial it became evident that Mr Cavill was evasive and you suspect that he has structured his assets to guard against these types of judgments. During cross-examination he gave evidence that he mostly subcontracted to Cordial Constructions Pty Ltd for whom he did most of his work. Cavill Builders Pty Ltd would receive regular work and payments from Cordial Constructions Pty Ltd.

Mr Cavill lives in a palatial home in Night cliff which he owns as tenants in common with his wife.

LWZ317 Civil Procedure Assessment 2 – Australia.

Mr. Crawley was an employee of a local architectural firm. He also has a gambling addiction and you become aware that a local bookie owes him $155,000 which is due to be paid in 6 weeks.

Advise Penny of her legal options in respect of enforcing the judgments and what steps you will be taking to recover the judgment from the defendants. Refer to authorities and the
Supreme Court Rules NT in your answer.

Marks will be awarded on the following three criteria, in equal measure.