Cases and authorities

CONVEYANCING - Land Titles under the Torrens System - statutory trust for sale - trustees authorised one co-owner to carry out renovations - other co-owners opposed - no consultation with them by trustees under Conveyancing Act 1919, s 66H - whether trustees had power to authorise renovations

Practice and procedure - Complex commercial litigation - Responsibility of parties, through their legal representatives, to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute and to participate in the processes of the Court to that end - Trolley load litigation, namely practice of a party in litigation with little or no notice, to flood its opponent with materials and then to insist that whilst its opponent is entitled to a period in which to endeavour to absorb new materials, that period should be miniscule - Trolley load litigation to be discouraged but when it has clearly been deployed and has the capacity to wrong foot the opposing party, the Court utilises its many powers to right the imbalance - Compulsory mediation

POSSESSION OF LAND - Stay of writ of execution - Undertaking not to make further applications - Ex parte application contrary to undertaking

PROCEDURE [740]- Contempt- Number of sequestrators required for writ of sequestration- Two suffices.

COSTS – where plaintiff seeks leave to discontinue proceedings in light of action taken by defendant after proceedings instituted which removes need for further proceedings – where plaintiff’s success is only partial – whether to depart from ordinary costs consequences of discontinuance.

CORPORATIONS - voluntary administration – sole director of a group of companies who became disqualified from managing corporations under s 206B(4) of the Corporations Act 2001 (Cth) (“the Act”) and consequently ceased to be a director of any of the companies, then purported, as director, to appoint the plaintiffs as voluntary administrators of the companies – plaintiffs applied to the Court to validate their appointment as administrators – held that under s 447A(1) of the Act the Court has the power to order that Pt 5.3A of the Act could henceforth operate in relation to the companies, as if the plaintiffs’ appointment as voluntary administrators of the companies should be validated

EVIDENCE – expert evidence – where plaintiff seeks to tender report of an additional expert after other expert witnesses have been involved in conclave and have produced joint report – where additional expert was not involved in conclave – held: to allow plaintiff to tender report would frustrate purpose of Court’s management of expert evidence

CONTRACTS - breach of contract - whether contract validly terminated - whether appropriate to make a declaration that contract was validly terminated. - COSTS - 'reasonable legal costs and expenses' - whether appropriate to assess reasonableness of costs incurred on an interlocutory basis prior to final determination of the matter.

PROCEDURE – application for further and better particulars of defence – defendant not required to give particulars why information not confidential – whether identity of admitted confidential discloser material – application to strike out defence – defence of iniquity to allegations of breach of confidence – where at least arguable that there is no equity in circumstances where disclosure of information is in public interest – where defendant asserts there is a public interest in disclosure – application to set aside subpoenas – relevance – application for further and better discovery – material masked on discovery to avoid disclosure of a confidential source – whether newspaper rule applies to actions for injurious falsehood and breach of confidence – held, newspaper rule does not apply – further and better discovery granted. STAY – in aid of interlocutory appeal – where final hearing imminent - where issue of principles of importance – where no irredeemable prejudice from refusing stay.

TRUSTS AND TRUSTEES – exceptional circumstances jurisdiction - Proceeding by beneficiary against third party where trustee will not sue – application for leave to amend to make clear basis on which plaintiff claims standing – where sufficiently arguable that liquidator which controls trustee will not bring proceedings – where leave under Corporations Act, s 237, previously refused - whether determined on preliminary application. AMENDMENT – Whether claim must fail due to limitations defence – where limitation is at least arguably not applicable – arguably limitation issue should not be determined at preliminary stage – whether amendment adds an additional cause of action – (NSW) Civil Procedure Act 2005, s 64, s 65(2)(a), (c). ESTOPPEL – Whether proceedings barred by Anshun estoppel arising out of failure to raise issue in earlier District Court proceedings – where previously held that no clear case of Anshun estoppel given District Court’s lack of corporations and limited equitable jurisdiction – held: not reason to reject amendment. AMENDMENT – Discretionary grounds – where no additional prejudice will be occasioned by allowing amendment that simply clarifies basis upon which standing is claimed

PROCEDURE - Miscellaneous Procedural Matters - Amendments - amendment sought on first day of a four day trial to extend from 65 to 196 the number of entities said to have been solicited by the defendant to take their work to another firm of chartered accountants he was to join and to bifurcate the hearing into one as to liability and one as to damages - defendant would seek adjournment if amendments allowed - no explanation of delay in bringing the application - clear prejudice if proceeding bifurcated - Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (2009) 83 ALJR 951 considered

REAL PROPERTY [315] – Partition of land – Statutory trust for sale or partition – Discretion of Court – Existence and extent of discretion – Contractual limit on disposal of interest

CONSENT ORDERS - Where parties draft a consent order for disclosure of information - Parties represented - Presumption of informed consent when no evidence otherwise - CONTEMPT - Preliminary application that order ambiguous and unable to sustain a finding of contempt

MORTGAGES - specific performance of agreement to give mortgage. - PRACTICE - order that Registrar execute mortgage if defendant does not comply with order to do so.

EQUITY – application for specific performance for contract for sale of shares and loan agreement – where contract has been part performed – where defendants have failed to pay all moneys under contract to plaintiff – where plaintiff has accordingly not transferred shares in company to the defendant – where plaintiff seeks specific performance – where shares in company have since been devalued by actions of defendant while company was under defendant’s control – where it would not be possible to find an alternative purchaser for the shares – where there is difficulty in calculating damages arising from defendant’s actions – where loan was for special purpose of paying plaintiff – Quistclose trust – whether loan agreement should be specifically performed

COURTS & JUDGES – apprehended bias – previous advice given by judicial officer to party seeking disqualification – advice said to be on matter relevant to application – judicial officer not to descent into factual contest – requirement on counsel to advise of application prior to hearing to assist administration of justice – application to disqualify granted

PRACTICE - cross-vesting - whether 'interests of justice' served by transferring proceeding - no question of principle.

REAL PROPERTY – caveat – claim for caveatable interest - where a right to share in the surplus of a deceased estate, after liabilities have been discharged, is not a caveatable interest

DEFAMATION - practice and procedure - motion for separate trials for questions of defamatory imputations and damages - motion rejected

CRIMINAL LAW - mental illness defence

BUILDING AND ENGINEERING CONTRACTS – whether contract for provision of architectural services was a construction contract – whether payment claim complied with requirements of s13(2) Building & Construction Industry Security of Payment Act 1999 – whether adjudicator’s decision on sufficiency of information in payment claim is open to review.

EVIDENCE – EXPERT EVIDENCE – admissibility of report of licensed security consultant on security regime of first defendant – whether report sufficiently discloses facts or assumptions upon which opinions are based – whether permissible for an expert to express opinions based on facts that he or she has deduced from reading a body of evidentiary material – whether deduced facts are disclosed in a way which enables the Court to ascertain whether or not they have been otherwise proven – whether opinions disclose underlying rationale demonstrating that they are founded in specialised knowledge or which permit them to be tested – whether opinions expressed are mere ipse dixit.

SUCCESSION [74]- Administration- Testator died intestate- Contest between children as to who should obtain grant- Guidelines considered.

EVIDENCE - Witness - Prior inconsistent statement - Leave for party calling witness to cross examine

MORTGAGES - claim by mortgagee for possession of land following mortgage default - default judgment entered and writ of possession issued - writ of possession executed and Plaintiff takes possession of property - Defendants re-enter property - Plaintiff obtains writ of restitution - Defendants seek stay of execution of writ of restitution and apply to set aside default judgment - McKenzie friend - claim to right of trial by jury - relief refused - Plaintiff entitled to proceed with writ of restitution

CORPORATIONS – (CTH) Corporations Act 2001, s 1274B – whether plaintiff director of company – whether written consent required pursuant to Corporations Act, s 201D – where ASIC national database records plaintiff as director – whether plaintiff removed as director. - DEEDS – election to sue on deed – where no defence to the deed. - PROCEDURE – whether defendants had notice of proceeding.

CORPORATIONS – directors’ duties – cross-claimant sought damages for breach of a director’s fiduciary and statutory duties in respect of expenses incurred by the director – verdict for company – no issues of principle

REAL PROPERTY – CAVEATS – application to extend caveat until further order and to adjourn proceedings – where lapsing notice served on applicant caveator – where no discernable caveatable interest in land – whether Registrar General has discretion to extend operation of caveat once lapsing notice served – where caveat would lapse in intervening period if adjournment were granted

PROCEDURE – leave granted to adduce oral expert evidence in chief.

PROCEDURE – application by plaintiff to merge common law proceeding into equity proceeding – where facts and issues raised by common law proceeding closely interwoven with equity proceeding. - PROCEDURE – DISMISSAL FOR WANT OF PROSECUTION – where proceeding has long procedural history – where both parties have failed to comply with Court directions.

REAL PROPERTY – EASEMENTS – right of carriageway servicing residential dwellings – where carriageway over servient land has been asphalt for many years – where servient owner replaces asphalt with reinforced turf – where reinforced turf though inferior to asphalt could provide reasonable access to dominant land – where existing asphalt surface was a reasonable user of the carriageway – rights of dominant and servient owners in respect of rights of carriageway – whether servient owner can unilaterally change surface of right of carriageway – where it was recommended that the reinforced turf not be used for a growing season and could be slippery when wet before that time – whether that amounted to a “psychological obstruction”. - INTERLOCUTORY INJUNCTIONS – mandatory interlocutory injunctions – application for injunction to return turfed carriageway to asphalt surface – strongly arguable case – Courts should attempt to settle questions of law on interlocutory applications when possible – balance of convenience.

GUARANTEE AND INDEMNITY - co-sureties - where one co-surety enters into deed of release with creditor - whether release or covenant not to sue - whether remaining co-sureties have continuing right to contribution - whether any common obligation remains - summary dismissal.

CORPORATIONS – creditor’s statutory demand – application to set aside demand – where debt arose under (NSW) Building and Construction Industry Security of Payment Act 1999 – offsetting claim – where parties are head contractor and sub-contractor – test for determining whether there is a genuine offsetting claim – where plaintiff alleges that defendant is liable under contract for damage to neighbouring properties due to inadequate construction work – where preliminary expert evidence suggests that defendant may have caused the damage – whether the claim is bona fide and truly existing – whether plaintiff’s financial position relevant to whether offsetting claim made in good faith – whether offsetting claim needs to be particularised as an exact amount – whether condition should be imposed that the plaintiff nonetheless pay into court the amount claimed by defendant on setting aside of statutory demand.

CONTRACTS - construction and interpretation - sale agreement - application of variation agreement - calculation of retention amount - calculation of purchase price - interest rate payable.

EVIDENCE – hearsay – where deponent of affidavit not available for cross examination – whether admission of affidavit should be excluded as being unfairly prejudicial pursuant to Evidence Act 1995, s 135.

PROCEDURE – application by plaintiff to adjourn final hearing on day appointed for hearing – where plaintiff is unrepresented – where plaintiff claims to be in the process of sourcing legal representation – where proceeding has had protracted history.

TRADE PRACTICES – misleading or deceptively conduct – passing off – whether ‘get-up’ sufficiently distinctive – whether exclusivity of reputation is required – whether serious question to be tried – interlocutory injunction – whether granting of interlocutory injunction will have the practical effect of determining the final issue.

INJUNCTIONS – interlocutory injunctions – application to prohibit the dispersal of proceeds of a disputed real property transaction – distinction between Mareva injunction and injunction in aid of a proprietary claim – where plaintiff has seriously arguable case and defendants have seriously arguable defence – balance of convenience – where defendants granted mortgage and dispersed a significant amount of the proceeds after proceeding commenced – where granting injunction could preclude the defendants from defending proceeding – where defendants had pre-existing equity in the property and some other assets.

PROBATE AND ADMINISTRATION - claim by one of two executors for grant - executor in default now wishing to obtain grant - matter stood over for appropriate orders

CONTRACT – arbitration agreement provided that all disputes will be submitted to arbitration in accordance with UNCITRAL Arbitration Rules – plaintiff alleged agreement that strata units would be sold on registration of plan – seeks declaration to that effect and orders that the defendant co-operate in selling – plaintiff also seeks appointment of trustees for sale and sale of jointly owned property under Pt 4 Div 6 of the Conveyancing Act 1919 (NSW) - agreement requires unanimity for sale – defendant seeks stay of proceedings under s 53(1) of the Commercial Arbitration Act 1984 (NSW) – no good reason why principal dispute should not be referred to arbitration even if arbitrator has no power to make orders sought under Conveyancing Act – proceedings stayed

CORPORATIONS – creditor’s statutory demand - application under s 459G of the Corporations Act 2001 (Cth) (“the Act”) to set aside statutory demand – plaintiff asserts payment of debt – sufficient evidence to establish genuine dispute

CORPORATIONS – creditor’s statutory demand – application to set aside statutory demand made under s 459G of the Corporations Act 2001 (Cth) – plaintiff alleges it is entitled to withhold payment because of an offsetting claim and because defendant failed to provide written statements as required by s 127(5) of the Industrial Relations Act 1996 (NSW) and s 175B(7) of the Workers Compensation Act 1987 – insufficient evidence led to assess extent of offsetting claim but written statements made available at hearing – accordingly no defence available at that point – statutory demand varied to extend payment date

INSURANCE - application for leave to proceed against insurer of insolvent company - whether claim for breach of design obligation or for failure to install material of the specified quality - whether claim within insuring clause.

PROCEDURE – INTERLOCUTORY APPLICATION – application for order for defendant to comply with previous orders – where order that defendant transfer property to plaintiff but plaintiff required to do equity by restoring defendant’s contributions quantum of which to be ascertained on inquiry – where no time for compliance with order for transfer fixed by earlier orders – time for compliance – whether earlier order for defendant to discharge mortgage and retransfer property to plaintiff intertwined with concurrently made order on cross-claim for reimbursement of defendant's contributions. - APPEALS – EQUITY – where earlier proceeding in equity determined liability of parties and ordered further inquiry on financial contributions – where Court Registry rejected application to appeal on the basis that there was no final decision – in equity proceedings a judgment on liability with a reference for an inquiry is a final judgment and the decision on the subsequent inquiry is interlocutory.

PROCEDURE – representation – leave to unqualified person to appear.

EQUITY - rectification - whether mistaken belief as to terms of written lease - whether inconsistent with alleged prior oral agreement - rectification - rescission.

CONTRACTS [129]- Repudiation- Whether acts of liensee amount to repudiation of licence to occupy common property of strata units- Held "No". REAL PROPERTY [450]- Strata title- By-law giving exclusive use of designated common property to owner of lot 3- Lot 3 licensing same to owner of lot 4- Nature of licence- Lot 3 promising to assist in amending by-law- Scope of obligations

EVIDENCE - Admissibility and Relevancy - S 55 and s 56 of the Evidence Act 1995 - Whether evidence that is relevant against one defendant is admissible for all purposes against all defendants even if irrelevant against some defendants - What use can be made of such evidence - Whether the discretions under s 135 and s 136 of the Evidence Act to exclude or restrict the use of the evidence should be exercised on the basis of the admission of evidence irrelevant against a co-defendant

CORPORATIONS – creditor’s statutory demand – application to set aside statutory demand under s 459G of the Corporations Act 2001 – claim for rent – plaintiff asserts entitlement to abatement – genuine dispute raised – demand set aside

BUILDING AND CONSTRUCTION INDUSTRY (SECURITY OF PAYMENT) ACT 1999 (NSW) - Section 14(4)(b)(i) & (ii) - whether relevant construction contract requires different time for provision of payment schedule from 10 business days otherwise required