Mark Ashhurst SC

Senior Counsel

Called to the Bar: 26 September 1992

Areas of Practice

  • Appellate
  • Building & Construction
  • Commercial
  • Corporations
  • Equity
  • Insolvency
  • Trusts

Selected Decisions:

Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd

Citation: (2016) 18 BPR 35,759
Issues: The appellant as vendor entered into a contract for sale with the respondent as purchaser. The contractual date for completion having passed, the appellant issued a notice to complete requiring completion on or before 17 February 2015. The appellant terminated on 26 February and the respondent commenced proceedings for specific performance. The sole director and secretary of the appellant company was one Mr Barrack who executed the contract in accordance with s 127(1) of the Corporations Act 2001 (Cth) but failed to execute the transfer in like manner. The purchaser’s agent rejected the transfer on settlement as improperly executed. The primary judge found that it was the obligation of the purchaser to provide a transfer with an execution clause capable of being signed by a corporation. Mark successfully argued that any breach by the purchaser was of an non-essental obligation and that the vendor remained responsible for passing good title on completion.

Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd

Citation: [2015] NSWSC 1916; BC201512423
Description: In this matter Mark was successful in defending a builder from a $50 million defects claim that involved allegations of defective façade, mechanical services, fire services and waterproofing.

Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd

Citation: [2010] NSWCA 283
CONTRACTS — Building and construction contracts — Performance bonds — Whether entitlement of principal to call on performance bonds conditioned upon the objective fact of material non-compliance by the contactor with its contractual obligations — Clough Engineering v Oil & Gas Corporation (2008) 249 ALR 458 considered — Grant of interlocutory injunction — Whether contractually unjustified call on bonds likely to damage reputation and financial standing of contractor.
EQUITY — Injunction to restrain breach of negative stipulation in contract — Exercise of equity’s auxiliary jurisdiction — Need to demonstrate inadequacy of relevant legal remedies including an award of damages — Test for grant of interlocutory injunction.

Thomson v Golden Destiny Investments Pty Ltd

Citation: [2015] NSWSC 1176
This dispute involved disputed equitable rights to a commercial development site in Northern Sydney. Mark was successful in arguing that his client was the rightful holder of the development rights and that the other claims either failed on the facts or were contrary to equitable principles.

Simic v New South Wales Land and Housing Corp

Citation: [2015] NSWCA 413; BC201512521
In this matter Mark was not successful in pursuading the NSW Court of Appeal that a misdescribed bank guarantee could not be claimed by the intended recipient because to all such a claim would be contrary to the principles of strict compliance that bank guarantees and other performance bonds are subject. The High Court of Australia has however granted Mark’s client special leave to appeal this decision and the results of that appeal are pending.


About Mark

Mark has over 25 years experience in equity/commercial, building and construction, trade practices and insolvency law. Mark spent the first five years of his legal career as a solicitor for Clayton Utz in Sydney before coming to the NSW Bar in 1992. Mark was appointed silk in 2007. Since coming to the bar Mark has appeared in over 40 decisions of the NSW Court of Appeal as junior counsel and in over 50 decisions of that Court as senior counsel. Mark has also appeared in over 70 hearings of the Federal Court of Australia and in over 300 final hearings of the Supreme Courts of New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. Mark has also been Chairman of the Sydney Junior Rugby Union Judiciary since 2010.