Hancock v Rinehart

HIS HONOUR: The Court has been asked to clarify the intent of Order 1 made on 28 May 2015, insofar as it is expressed to be “upon her undertaking to the Court …”. The first defendant apparently contends that the order does not take effect unless and until such an undertaking is formally given, while the plaintiffs contend that the undertaking has been given and the order has immediate effect.

Bianca’s solicitors have confirmed that if a further undertaking is required, it would be given. It is clear that Bianca regards herself as bound by the undertaking. In any event, by taking the benefit of the orders, Bianca would assume the burden of the undertaking.

But the order was intended to record an undertaking that had already been given. It was not a conditional order contingent upon an undertaking being given.

It is commonplace for an order to be expressed to be made “upon the undertaking of …”. Perhaps the most common instance of this is an interlocutory injunction, made “upon the plaintiff giving to the court the usual undertaking as to damages”. When the Court so expresses an order, it is formally recording an undertaking which it regards as having been proffered, and not making a conditional order the ultimate effect of which would depend on whether or not the plaintiff subsequently decides to give the undertaking. If the relevant undertaking is not given, the court does not pronounce orders conditional on the undertaking being given, but refrains from making the orders at all.

I regarded the undertaking in question as having been proffered by Bianca’s evidence, summarised in the principal judgment at [274]-[275]. Had I not done so, I would have sought confirmation that the undertaking was given before pronouncing the orders. The order records that it has been given, not that it is anticipated. The order is not conditional, and no further undertaking is required.