Cases and authorities

PROCEDURE - Contempt, attachment and sequestration - Company fails to answer a notice to produce - Having determined to abandon opposition to the threshold issue on the third defendant's security for costs application, the director believed the company did not have to produce documents that were thus irrelevant - Director swore there were no tax returns of the company - The company was a trustee and another company conducted the business - The director believed that the other company lodged the relevant tax returns - Consequent upon advice to the contrary by an accountant and advice by counsel documents were produced in answer to the notice - A reasonable doubt raised by authorised director from the bar table - Whether the company was entitled to costs - No principles involved

PROCEDURE - Costs - Rival cross-claims dependent upon success of a third party's cross-claim - Third party's cross-claim unsuccessful - Rival cross-claims therefore dismissed - Appropriate order for costs between rival cross-claimants

PROCEDURE – Stay of execution – Judgment for possession – where no risk of capital loss to plaintiff – where last minute offer of refinance – when plaintiff has shown sustained tolerance and patience in affording time and opportunity to refinance – stay refused.

RESTRAINT OF TRADE - Employer and employee - whether reasonable - legitimate protectable interest - customer connection - confidential information - whether excessive in duration - where restraint period would be longer than duration of employment - duty of fidelity - where arguable breach - whether injunctive relief available - whether perpetual injunction would be available - appropriate duration of interlocutory injunction - "springboard" doctrine

INJUNCTIONS – interlocutory mandatory injunction – for delivery up of shop fitout – where strongly arguable case for final relief – where undertakings proffered which would preserve ultimate rights of competing claimant if established.

PROCEDURE – Pleadings – Particulars - Summary dismissal and striking out – where allegation in claim is a possible explanation of circumstances but particulars so far provided are insufficient if proved to sustain allegation – where facts relevant to allegation are known to defendants but not to plaintiff – where plaintiff will require discovery to further particularise allegation - obligation of a party to supply particulars is only to supply the best particulars that they can give – party may be required to supplement particulars after discovery.

PROCEDURE - Miscellaneous Procedural Matters - Adjournments - Matter conducted in ECM Court - Parties sign consent orders vacating hearing - Whether matter should be adjourned into open court - Whether parties at liberty to make such a decision - Whether efficient disposal of court business under the Civil Procedure Act 2005, s 57(1)(b) and the efficient use of available judicial resources under s 57(1)(c) should be taken into account - Key witness booked to go to Mecca - Whether justice between the parties outweighs court administration considerations - Changed instructions by plaintiff to oppose application and seek order for costs thrown away

COSTS - where defendant separately represented - whether costs should be apportioned between defendants

INJUNCTIONS – Interlocutory injunction – ex parte injunction – duty of disclosure – balance of convenience.

PARTNERSHIP - Dissolution – appointment of receiver – ordinary rule that where partnership and dissolution not in contest receiver will be appointed - discretion - where limited assets – where no practical alternative - COSTS – Partnership dispute - ordinary rule that costs be paid out of partnership assets

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contract - Defendant sells land to plaintiff with reservation of a specified lot to be retransferred upon creation by subdivision and to be held in trust in the meantime - No time for completion of subdivision - No suggestion plaintiff in breach of contract - Scheme substituted for lodgement of caveat by defendant - Bank guarantee to be called on earlier of two months after registration of plan of subdivision or 30 June 2006 - Defendant call on guarantee after 30 June 2006 - No mechanism to transfer equitable interest in lot to plaintiff - whether serious issue of construction to be tried - Whether injunction should issue to restrain breach of negative stipulation

Fishing regulations - undersized abalone purchased by wholesaler - honest belief that abalone not undersized - honest belief that suppliers had measured and would not supply undersized product - mistake of fact - acquittal upheld

CORPORATIONS - winding up - winding up by the court - current liquidators of prospective plaintiff companies contemplate litigation in which related companies of which they are also liquidators may become subject to cross claims - need for additional liquidator of those related companies with powers confined to such matters

PROCEDURE [81]- Undertakings- Voluntary undertaking by plaintiffs to court to pay sum of money into court- Plaintiffs unable to secure loan for sum of money without discharging mortgage subject to current proceeding- Default- Insufficient evidence to show reason for discharge of undertaking.

REAL PROPERTY - Torrens title - Caveats against dealings - application to extend operation of caveat - whether caveatable interest - interest claimed pursuant to oblgiation in mortgage - mortgage had already been discharged - held, no seriously arguable case.

Practice and Procedure - Defendant seeks stay in order to invoke arbitral provision - Case management - Order that defendant file defence pending possible appeal from order refusing a stay

PROCEDURE - Discovery and Interrogatories - Application by defendants in District Court proceedings for discovery of material filed in Supreme Court proceedings to which they were not parties for the purpose of cross examination of witnesses in the District Court proceedings - Whether application should be heard ex parte

PROCEDURE - Stay of Proceedings - Application for stay of possession pending determination of appeal from Associate Justice - Whether serious question raised - Applicants terminated franchise agreement for alleged repudiation - Whether under the Trade Practices Act 1974 (Cth), s 87(2)(g) they entitled to an order restropectively varying the terminated agreement to allow them to retain possession

EVIDENCE - Admissibility and Relevancy - Declaration sought that 3rd defendant as agent for 1st and 3rd to 32nd defendants settled District Court defamation actions - Affidavit of plaintiff contained details of earlier unsuccessful attempt to settle the District Court proceedings - Whether admissible in absence of any evidence that person had any authority to negotiate on behalf of defendants - Whether admissible to rebut defence claim that they never offered to pay money to plaintiff

Security for costs - Multiple defendants - Need for position of all putative applicants for security to be ascertained before any security amount is determined

SUCCESSION [310][317]- Testator's family provision and maintenance- Plaintiff was de facto partner of 30 years- Testatrix 's will provided plaintiff with right to reside in testatrix's house for life- Testatrix had no other assets- Testatrix made statutory declaration giving reasons for will- Plaintiff left with insufficient provision- Order made.

CONTRACT - breach of negative stipulation, not to sell certain assets – remedies – injunction – construction – whether exposure to injunction to restrain prospective breach is liability for a breach

SUCCESSION - Family provision – claims by 3 of 6 adult children of deceased – estate of $347,000 left to defendant eldest son – no claims by surviving former spouse – no needs-based claim by beneficiary – claim by first plaintiff compromised for $47,000 – circumstances of second plaintiff change adversely after death – substantial need for maintenance established – third plaintiff establishes modest contribution-based claim for advancement – priority of obligation to provide for maintenance over obligation to provide for advancement – legacies of $80,000 to second plaintiff and $25,000 to third plaintiff – COSTS – where small estate with multiple claims – relevance of “rule of thumb” that plaintiff’s costs in such claims should be limited to $35,000 – relevance of amount recovered – recoverable costs capped – Indemnity costs – where plaintiff betters offer of compromise – indemnity costs from date of offer.

PRIVATE INTERNATIONAL LAW – FAMILY LAW – Adoption – recognition of foreign adoption – non-convention country – not a prescribed overseas jurisdiction – whether presumption that Adoption Act s 116(1) applies rebutted – Adoption Act ss 116, 117. PROCEDURE – service – service outside jurisdiction – leave to proceed.

Practice and Procedure - Joinder - Principles - Application by Insurer to be joined to proceedings to apply for proceedings to be dismissed

PROCEDURE – adjournment – ill-health of principal of party – desirability of presence to instruct as well as give evidence – unsatisfactory medical evidence.

LEASE [33]- Tenant leased part of roof upon which was a commercially valuable sign- Lease expired- Tenant's right to remove sign- Trade fixture- Ownership of sign- Whether landlord must give consent for tenant's development application for removal of sign- Tenant entitled to remove sign and receive landlord's consent.

DAMAGES - damages paid in 1977 for negligence which occurred in 1971 - attempt to reopen proceedings - whether the settlement was effective and binding - relevantly disabled at the time of settlement of damages - effective service and substituted service

COSTS – Interlocutory application brought in respect of retail lease proceedings in ADT – application wholly unsuccessful – whether costs question should be determined by court or remitted to ADT

REAL PROPERTY - Torrens Title - Caveats against dealings - removal by court order - formal requirements - insufficiency of claim of "equitable interest" - whether application by borrower of funds to pay stamp duty gives lender equitable interest - held it does not - balance of convenience - where equity in property exhausted by higher priority claims

FAMILY PROVISION AND MAINTENANCE - Practice - Applicant for provision under Family Provision Act 1982 seeking compensation for deceased's death under Workers' Compensation Act - Intention to appeal against finding that she not entitled - Application to vacate hearing until after workers' compensation proceedings finalised - Opposed by applicant - Whether can make provision to be adjusted for receipt of workers' compensation without knowing the amount of the compensation

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Application to extend caveat - Respondent owned house into which applicant moved and established a relationship that lasted 2.5 years - In that time applicant contributed $8,000 to mortgage repayments and an unspecified amount on repairs and renovations - Caveat claimed a constructive trust - No evidence that house to become a joint investment - No evidence of intention of respondent to hold in trust for applicant to extent of his contributions - Whether unconscionable for respondent to sell her house unencumbered - Whether caveat should be treated as protecting a resulting trust or an equitable charge - Whether a serious issue to be tried - Whether balance of convenience favoured extension of the caveat

INJUCTIONS – Interlocutory injunctions - Interlocutory mandatory injunctions for delivery up of images - PROCEDURE - Discovery - appointment of Court expert to inspect computers

CONVEYANCING [191]- Caveat- Extension- Money owed to builder for work done- Building contract for residential building purported to create charge over property at moment of contract- Act generally avoiding creation of charges- Significance of "hereby charges", "subject to the Act"- Charge not valid- Extension of caveat refused.

INJUNCTIONS - Interlocutory injunctions - prima facie case or serious question - where defendant purports to terminate agreement for fraud - where onus will be on defendant at trial - what plaintiff must show to establish serious cause for final relief - where plaintiff will encounter obvious but not necessarily insurmountable credit difficulties - where plaintiff affirmatively establishes defence to some allegations of fraud

EVIDENCE – Privilege – litigation privilege – communications between lawyer and potential expert witness – Waiver – where document produced by expert on subpoena and access granted without objections – whether “knowing and voluntary disclosure”. - PROCEDURE – Amendment – late amendment – where no prejudice. - EVIDENCE – prior representation – statement made in Building Adjudication between same parties – not admissible under ss 64 or 69.

EVIDENCE - Expert Evidence - Leave to put on further report after court appointed expert's report under the Uniform Civil Procedure Rules 2005, r 31.33 - Reports of experts obtained before court appointed expert's report - Leave granted to plaintiff for further report and leave to court appointed expert to respond - Plaintiff's application for a further expert report by Hydraulics expert as distinct from Hydrology expert

BUILDING AND CONSTRUCTION – Resolution of dispute – Adjudication – Determinations – Judicial Review – basic and essential requirements – construction contract – whether jurisdictional fact – held, it is and can be reviewed by court – natural justice – failure to give party opportunity to comment on additional submissions obtained from other party – held, denial of that measure and procedural fairness prescribed by Act.

DEEDS [13][14] Deed in settlement of proceedings after mediation- Deed executed by defendant- Defendant claimed misapprehension and misrepresentation as to plaintiffs' claims on the estate- Defendant sought to withdraw consent before final party signed- Final party signed within reasonable time- Deed binding at law- Insufficient material to set it aside in equity.

DAMAGES - General Principles - Quantum of cross-claim - Whether cross-claimant entitled to rely on portions of files not admitted in evidence - Whether case should be re-opened after principal reasons for judgment published - PROCEDURE - Costs - Equitable set-off pleaded in defence - Cross-claim for damages for breach of contract - Whether proceedings as a whole the event for the purpose of the principle that costs follow the event

PROCEDURE – Injunctions – Expedition – Interlocutory injunctions and undertakings – interlocutory undertaking not to publish documents in which plaintiff claims public interest immunity – application for release from undertaking to permit issue of subpoenas, production of documents on discovery and provision of particulars in related defamation proceedings – where release may irretrievably prejudice plaintiff and proceedings can be expedited – modification of or release from undertaking refused and expedition ordered.

PROCEDURE – Consolidation – Cross-vesting – whether family law proceedings transferred from Family Court should be heard with equity proceedings which may affect pool of matrimonial property - FAMILY LAW – COSTS – Interim provision for litigation expenses – relevant considerations on an application for interim or preliminary costs – whether limited to scale costs – whether limited to future costs - INJUNCTIONS – Interlocutory injunctions – Mareva injunctions – variation to provide for litigation expenses – third parties – relevance of impact of injunctions on third parties.

CONTEMPT - Interference with administration of justice - interference with persons having roles in administration of justice - witnesses - attempt to influence witness in relation to giving evidence - where no threat but subtle influence - Punishment - where apology tendered - general deterrence.

Exclusion of conduct involving the holder of an office relating to a court exercising the court's judicial functions from the Privacy and Personal Information Protection Act 1998

PROCEDURE - Miscellaneous procedural matters - Amendments - Application to further amend statement of claim at hearing raising unjust enrichment and a Quistclose collateral purpose - Adjournment inevitable - Whether amendments should be allowed - Whether costs should be reserved - Whether costs thrown away should be paid forthwith

INCOME TAX DEBT - claim for money owed to the Commissiner of Taxation - whether the liability should have been remitted - timing of service of Director's Penalty Notices - whether company was placed in administration within 14 days - rebuttal of presumption notice arrived in the ordinary time for mail to arrive

EMPLOYMENT LAW - The contract of service and rights, duties and liabilities as between employer and employee - Restrictive covenance - 12 month restriction on obtaining customers past, current, or propspective of the employer - Whether unreasonable - Effect of Restraints of Trade Act 1976, s 4(1) - Whether should be determined at interlocutory stage - 9 of in excess of 1,400 customers obtained - Whether damages as sufficient remedy

PROCEDURE [99]- Admissions- Formal admissions- Discretion to give leave to withdraw- Principles.

CONVEYANCING - Land Titles under the Torrens system - Caveats against dealings - Parties in de facto relationship decide to purchase and renovate a house as a joint venture - Contract in both names - Subsequent decision to purchase in the name of defendant alone - Plaintiff a builder - He carries out restoration work - He invoices defendant for work, mostly with a margin on cost, but a low one - Defendant pays invoices until she runs out of money - Plaintiff pays third parties $42,360 because of strong business relationship with them - Relationship breaks down - Plaintiff lodges caveat claiming equitable interest as "beneficial interest by way of contribution to acquisition and improvement of property" - Plaintiff made no contribution to acquisition of property - Order made extending caveat until further order - Whether caveat justified by way of estoppel in that plaintiff, upon assertion of joint venture, acted to his detriment by working for a low margin - Whether defendant received an "equitable windfall" - Whether property subject to a constructive trust - Whether plaintiff entitled to an equitable lien - Defendant filed no notice of motion

PROCEDURE - Summary termination - Failure to comply with orders of Registrar to serve proposed further amended statement of claim on four occasions - Sole practitioner who suffered heart attack and later underwent triple bypass operation during the relevant period - Whether the proceedings should be dismissed - Document ready for service within short space of time