Cases and authorities

EVIDENCE – Relevance – Provisional relevance – Evidence Act, s 57 - EVIDENCE – Admissions – Authority – Evidence Act, s 87 - EVIDENCE – whether unduly prejudicial – Evidence Act, s 135 - EVIDENCE – rectification suit – evidence of post-contractual facts

PROCEDURE - Contempt, attachment and sequestration - Whether respondent breached injunctions in December 2005 - Whether his signature appeared on hiring agreements - Whether charges proved beyond reasonable doubt - Whether unexplained delay in bringing contempt proceedings should be taken into account - Whether in the circumstances an order to pay indemnity costs was a sufficient penalty

defamation - amendment of statement of claim to extend dates of alleged publication - new causes of action out of time - whether amendment should be permitted - relationship of amendment to pleaded cause of action - leave granted

INJUNCTIONS – Interlocutory injunctions – asset preservation orders – whether sufficient risk of dissipation

Practice and procedure - Indemnity cost - Principles

CONTEMPT – civil contempt – failure to comply with order for production – by solicitor – penalty – relevant consideration

REAL PROPERTY – Torrens system – caveats against dealings – where caveat claims excessive interest – where tenant clearly has arguable caveatable interest of lesser extent – balance of convenience – where interest of tenant disclosed in contract for sale – where purchaser would be protected against notice

CORPORATIONS – oppression – remedies – share purchase order – whether to be made against majority or against company – relevant considerations if to be made against company. - COSTS – where plaintiff abandons some pleaded issues at opening of trial – where those issues factually overlap those on which plaintiff succeeded – whether costs to be awarded for or against directors.

EVIDENCE - Admissibility and Relevancy - Leave sought to read affidavit sworn the day before trial - Issues raised in affidavit of husband sworn two months earlier, his affidavit having been rejected because he was required for cross examination and not in attendance at Court

FAMILY LAW – De facto relationship – alteration of property interests – enforcement – writ of possession – whether available in aid of adjustive property order.

PROCEDURE - Injunctions - Application to restrain the defendant Protective Commissioner from selling a property - Property owned by plaintiff's mother - Her estate administered by the defendant - Order for possession previously made against plaintiff - Whether plaintiff had an equitable interest in the property because he had taken the role of his ill father and made substantial contribution to the family and the property - Whether an order shall be made to reinstate a lapsed caveat over the property - Whether an order shall be made granting the plaintiff reposition of the property

EVIDENCE – affidavits – late service – where reasonable opportunity to investigate and respond denied. - EVIDENCE – hearsay – exceptions – notice under Evidence Act s 67 – dispensing with notice.

EQUITY - Equitable Estates and Interests - Life tenant under a testamentary settlement seeking inspection of documents in the possession of the trustees - Documents passing between counsel and solicitors for the trustees and between the solicitors for the trustees and accountants - Trustees claiming client legal privilege - Life tenant suing trustees for alleged breaches of trust - Whether Re Londonderry's Settlement [1965] 1 Ch 918 still good law - Whether Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 should be followed in Australia - EVIDENCE - Client legal privilege - Consent and Waiver - Opinion of counsel made available to life tenant - Whether withholding of documents passing between counsel and solicitors for the trustees inconsistent with the maintenance of confidentiality for legal advice

PROCEDURE - Costs - Appeal from Associate Justice - Neither party totally successful

FAMILY LAW – Defacto relationships – proceedings for adjustment of property interests – interim sale of property

CORPORATIONS – Corporations Act 2001 (Cth) (“the Act”) Ch 2K - Company charges – Memorandum of discharge lodged by chargee on basis of agreement that chargor would make certain payments which it failed to make – Whether s 266(4) or s 1322(4)(d) of the Act available to reinstate charge – Whether s 274 or s 1322(4)(b) available to rectify Register of Company Charges – Relief not available

PROCEDURE – Pleading – Particulars – Agency – Where plaintiff alleges one defendant was agent of other defendant – where relationship between defendants within their means of knowledge and not plaintiffs’ – sufficiency of particulars

CONTRACT – Specific performance – formation – intention to be legally bound – where lessee’s agent and lessor agree in writing on commercial terms to apply but “subject to lease” – whether intention to be bound before formal lease is settled executed and exchanged – relevant considerations.

RESTRAINT OF TRADE – employer and employee – sales manager – confidential information – reasonableness of 6 month restraint – where employee resigned after only one day – INJUNCTIONS – contractual injunctions – to restrain breach of negative stipulation – whether discretion to decline – factors informing discretion

COSTS – whether unsuccessful defendant should indemnify plaintiff in respect of liability for successful defendant’s costs – where plaintiff fails on Contract Review claim against mortgagee but succeeds on professional negligence claim against solicitor

[SPECIFIC PERFORMANCE] – Defendant obliged under Deed of Release to allow the plaintiffs to have access to his property to remove wind monitoring equipment – failure to provide access – whether specific performance should be ordered - [EXEMPLARY DAMAGES] – Whether defendant’s conduct high-handed or in contumelious disregard of his obligations – [INJUNCTION] – Whether injunction should be granted to restrain interference with removal process – [COSTS] – Whether plaintiffs should be awarded indemnity costs.

PROCEDURE - Miscellaneous Procedural Matters - Adjournments - Whether an application for an asset preservation order over the proceeds of sale of a property should be adjourned at the instance of the applicant upon the defendant’s late service of an affidavit annexing three agreements evidencing the property was an asset of the defendant - The agreements were executed by the sole director of the plaintiff companies - (No principles involved)

CORPORATIONS – winding up – whether registrar has power to adjourn hearing of proceedings for winding up pursuant to s440A(2), Corporations Act 2001. - PRACTICE AND PROCEDURE – review of registrar’s decision – principles on which review undertaken – whether reviewable error shown.

Procedure – Separate Questions – whether order should be made – where hearing will be part-heard – whether separate questions will achieve substantial economies

ASSOCIATIONS & CLUBS [6]- Gift by will to non-charitable unincorporated association- Membership and management structure uncertain- Gift fails. CHARITIES [45]- Non-charitable purposes- Gift of house by will to "Free Papua Movement"- Aims of movement political- Gift fails as a charitable gift. SUCCESSION [166]- Wills- Gift to non-charitable unincorporated body- Body's membership and internal structure uncertain- Gift fails.

CORPORATIONS – Application brought under one of ss 459H(1)(a), 459J(1)(a) or 459J(1)(b) of the Corporations Act 2001 (Cth) (“the Act”) for an order that a statutory demand be set aside – Statutory demand addressed to and served on two judgment debtor companies – Whether genuine dispute as to existence of debt where judgment initially unclear as to whether given against plaintiff but subsequently amended under the “slip rule” to affirm this – Corrections under “slip rule” speak from date of original judgment – Where debt is a judgment debt there cannot be genuine dispute as to its existence within meaning of s 459H of the Act – Uncertainty of terms of judgment nonetheless constitutes “some other reason” why demand should be set aside under s 459J(1)(b) of the Act – Prescribed form 509H makes no provisions for a demand on more than one company – Not permissible to serve single combined statutory demand on more than one company – Defect in demand which would cause substantial injustice within meaning of s 459J(1)(a) of the Act unless set aside

PROCEDURE – stay of execution – where writs recorded on land under Real Property Act – whether recording should be removed – REAL PROPERTY – Torrens Title – effect of recording a writ on title.

CORPORATIONS – Application to set aside statutory demand – Terms of alleged oral agreement entered into before loan agreement signed sufficient to establish low threshold required for finding of genuine dispute

PROCEDURE [89]- Joinder and addition of parties- Proceedings relating to charitable trust- Charity for benefit of the public in a particular locality- Whether local interest group may be added as defendant- Attorney-General taking neutral stance- Held group has sufficient interest in subject matter of action to be joined.

Case management - failure of defendant to comply with directions

PROCEDURE - Costs - Action settled before hearing on the merits - Whether Court should entertain a shadow hearing of issues on an application for costs - Appropriate principles

Equitable lease - negotiations for lease - apparent but not actual agreement on rent and area - whether lease created - refusal to pay "agreed" rent - invitation to lessor to obtain new lessee or sell property - lessor contracts to sell with vacant possession - notice to vacate whether lessee entitled to remain in possession

CORPORATIONS – COSTS – Liquidators of company successful in obtaining order against Commissioner of Taxation under s 588FF of the Corporations Act 2001 (Cth) (“the Act”) – Admissions by Commissioner of insolvency of the company and on other issues but no consent to judgment – Commissioner successful against one director and partially successful against another director under s 588FGA(2) of the Act – Order for costs against the Commissioner in favour of liquidators and against directors in favour of the Commissioner – Whether Commissioner’s liability under that costs order is “loss or damage resulting from the order” within the meaning of s 588FGA(2) in respect of which directors are liable to indemnify Commissioner – Costs payable by Commissioner because of costs order in proceedings not loss or damage resulting from the order referred to in s 588FGA(2) of the Act

CORPORATIONS - Winding up - Application under s 436B (2) Corporations Act 2001 by liquidator for leave to appoint himself as administrator and for ancilliary orders under s 447 A (1) to avoid duplication

ADMINISTRATION OF ESTATES – where one of two joint executors refuses to sell property – where evidence establishes that offer is a proper one and refusal is misconceived – other executor authorised to sell

PROCEDURE - Ceasing to act - Leave to file a notice of ceasing to act - No notice of intention - Application shortly before hearing date - Failure of client to put solicitor in funds - Opposed as causing prejudice by adjournment - Representative of defendant in Court - Whether application distinct from adjournment application

PROCEDURE - Setting aside orders - Orders striking out plaintiff's summons and giving judgment on a cross claim made in plaintiff's absence - Orders entered - Defendant had written advising plaintiff of hearings - Plaintiff's evidence that he did not receive mail after eviction from premises - Wife corroborated that evidence

COSTS – default application to strike out defence for default of directions to serve affidavits – where default since remedied – application premature - PROCEDURE – APPEALS – appeal from decision of Associate Judge summarily dismissing claim – whether the Associate Judge erred in acceding to third defendant's application for dismissal on a ground not advanced by the third defendant – whether the Associate Judge erred in finding that the statement of claim did not plead a cause of action – whether the Associate Judge exceeded the assistance permitted to be given to an unrepresented litigant by raising an argument not advanced by the third defendant – whether the Associate Judge erred by refusing the plaintiff an opportunity to replead a cause of action where the third defendant allegedly did not oppose such a course – whether the Associate Judge of his own motion was entitled to decide whether the pleadings disclosed a reasonable cause of action – whether the Associate Judge erred in not acting on an assertion of fact made by counsel from the bar table in the absence of admitted evidence – whether the Associate Judge erred in finding that there was no evidence that demonstrated a reasonable prospect of success – where plaintiff is an executrix and does not possess relevant evidence herself – what evidence required to disclose a reasonable prospect of success – where the Associate Judge re-opened the trial pursuant Uniform Civil Procedure Rules, r. 36.16, to consider further evidence of the plaintiff – whether the Associate Judge erred in rejecting the tender of an affidavit file in another proceeding - COSTS – where plaintiff succeeded on only one of eight grounds of appeal, and plaintiff’s case salvaged on re-opening.

PROCEDURE – application for leave to reopen – general principles – whether or not the material sought to be adduced is of probative value and is relevant to the issues in the proceedings

Managed investment schemes - winding up of unregistered scheme - liquidator forms opinion that money held by him is not scheme money - application by liquidator to pay money into court - court's power to give directions under s 601EE(2) - whether liquidator justified in deducting costs of investigation from fund to be paid into court

POWERS OF ATTORNEY - Where declaration sought that plaintiff has validly revoked power of attorney - where defendant attorney doubts plaintiff’s competence and whether subject to undue influence - where plaintiff’s assets still held by defendant - application to have some assets transferred to control of plaintiff’s current solicitor as an interim measure to fund expenditure - Held: application for interim relief granted

Civil Law - Supreme Court Procedure - New South Wales - application for leave to withdraw admissions - action by bank under Guarantee - allegation of mistake in making admission - suggested defence not credible.

PRACTICE and PROCEDURE - orders made and entered - application to set aside orders - slip rule does not apply - time for making of application - applicant seeks, in effect, not that orders should not have been made, but that other or different reasons should be given for the making of those orders - whether judicial officer is functus officio. COSTS - whether successful respondent is entitled to indemnity costs, and to have those costs paid forthwith.

REAL PROPERTY – Caveats – Removal – where resisted by Registered Proprietor – whether Registered Proprietor entitled to resist removal on application of mortgagee, consented to by caveator – remedies for sale by mortgagee at alleged undervalue

BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act - validity of payment claim - whether made with respect to a reference date the subject of previous claims - whether this aspect of Brodyn decided incorrectly - whether estoppel created by adjudication of earlier payment claims - whether claims replicated by separate entities - whether an abuse of process.

TAXES AND DUTIES - Land Tax - at hearing of a review the Chief Commissioner sought to justify his rejection of the plaintiffs' notice of objection on the basis that there were other occupants of the premises thereby excluding intended use of as deemed actual use of a principal residence under the Land Tax Management Act 1956, s 10T(2)(c) - s 10T(2)(c) not relied upon in objection decision - Chief Commissioner sought leave to call further evidence of occupation

CORPORATIONS - financial services licences and managed investment schemes - suspected contraventions of the Corporations Act - substantial and continuing investigations by ASIC - passport control order - whether orders should be extended for a substantial period - defendant's evidence that he needs to be able to travel to pursue his vocation in sales and marketing in international markets - relevant considerations

CORPORATIONS – Statutory derivative action – who should bear costs of prosecuting action in first instance

REAL PROPERTY - application to extend caveat - agreement to mortgage creating caveatable interest not stamped - agreement unenforceable as equitable mortgage - application refused.