Cases and authorities

CORPORATIONS – Corporations Act 2001 (Cth) claim for an order under s 588FF(1)(a) that defendant pay to the company amount paid by company to discharge monies owed by her to third party creditor on the basis that transaction was an unfair preference under s 588FA(1) and unreasonable director-related transaction under s 588FDA(1) – insolvency - whether company was insolvent - s 588FG(2) - statutory defence raised but not established

PROCEDURE – whether second cross-claim should be heard with main proceedings – whether February hearing dates should be vacated – whether defendants would be prejudiced by vacating hearing dates

Proceedings undertaken with authority by one party in name of another - nature of authority - action successful - order for costs - whether principal party can agree with defendant not to execute order without consent of suing party - error of law in Local Court - conclusion correction undisputed facts - whether appeal can be dismissed

COSTS – interpleader proceedings – interpleader acting reasonably entitled to costs – apportionment of liability between claimants having regard to relative success and responsibility.

PROCEDURE - Costs - Plaintiff discontinued against second defendant - Trial previously vacated and costs reserved - Whether the plaintiff should be ordered to pay the second defendant's costs thrown away by the earlier vacation of the trial.

PROCEDURE - Miscellaneous procedural matters - Further Submissions - Effect of registration of transfer of mortgage to B upon debt due by A and B to former mortgagee

BUILDING AND ENGINEERING CONTRACTS – contract dispute – compulsory dispute resolution procedure - application for stay of proceedings – discretion.

SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicant – where applicant received no benefit under deceased’s will due to ademption of gift in will – where applicant on disability pension – where defendant siblings also on disability pensions – relevant considerations

PROCEDURE - Mediation - Application for order for fresh valuations of properties before mediation - Probate valuation of properties at $3m and $2.5m taken in October 2006 and February 2007

EVIDENCE – defendant served expert report on plaintiffs – plaintiffs requested certain documents and information referred to in the expert report pursuant to s 166 of the Evidence Act 1995 (NSW) – defendants did not comply with request and plaintiffs obtained order of the Court under s 169 that defendant was to comply with the requests – defendant sent letter explaining non-compliance – plaintiffs sought order under s 169(3) that the defendant’s expert report not be admitted into evidence – whether reasonable cause for non-compliance under s 169(4)(a) – whether Court had power to make order directing defendant to comply with request to identify author of a document – whether discretion to direct that the expert report not be admitted into evidence should be exercised

CORPORATIONS - Corporations Act 2001 (Cth) - application for leave to sue company in liquidation for debt - Corporations Regulation 5.6.53(1) - proofs of debt lodged in earlier administration but not dealt with by administrators - administrators become liquidators - no further proofs of debt lodged – proofs not dealt with by liquidators - application for leave premature and refused - other leave sought to sue in respect of claims not directly against the company - different considerations - leave granted

CONTRACT - loan agreement - misleading representations - representations as to future conduct - s41(2) Fair Trading Act 1987 - reverse onus of proof - knowing involvement - loss - whether purpose trust existed.

Separate question orders

Jurisdiction of Courts (Cross Vesting) Act 1987 [NSW] - Checklist of factors relevant to decision - Video link technology.

EQUITY [339][340]- Notice of motion filed by plaintiff seeking Mareva relief against second cross-defendant- How and when Mareva relief granted against third parties- Existing caveat on property- Caveat practically speaking protecting plaintiff- Thus no real threat that warrants Mareva injunction. PROCEDURE [85]- Notice of motion filed by second cross-defendant to strike out second cross-claim- Plaintiff lacks the requisite locus standi to claim the appropriate declarations- Misuse of cross-claim.

MENTAL HEALTH [8]- Management of protectetd person's estate- Court requires very strong evidence before concluding that a protected person who has suffered permanent brain damage has made a complete recovery- Interim orders made.

EVIDENCE - Admissibility and Relevancy - Tender of documents obtained by search of laptop other than in accordance with an agreed protocol - Whether obtained improperly or in consequence of an impropriety within s 138(1) of the Evidence Act 1995 - Whether the matters listed in s 138(3) led to the conclusion that the desirability of admitting the evidence did not outweigh the undesirability of admitting evidence so obtained.

TAXES AND DUTIES - Procedure - Land Tax - Exemption claimed on basis land is for primary production under the Land Tax Management Act 1956, s 10AA(1) or s 10A(2) - Plaintiff granted exclusive licence over land - Alleged that licensees used land for primary production - Whether matter should proceed by way of pleadings to draw out whether defendant regarded activities of plaintiff as relevant - Pleadings not usual in Revenue List

EQUITY – Joint venture – where substratum fails without attributable blame – whether prima facie remedy is return of contributions or minimum equity to remove unconscionability. - REAL PROPERTY – Co-ownership – rights of co-owners – occupation fee – upon breakdown of domestic relationship – where not reasonably practicable to remain under one roof – whether party remaining in occupation liable to pay occupation fee – improvements – where no evidence that value of property enhanced – whether co-owner entitled to allowance – services rendered – where co-owner performs some obligations to care for other – whether allowance warranted.

EVIDENCE - Admissibility and Relevancy - Tender of documents after oral evidence concluded and plaintiff about to close its case - Whether documents relevant to what discussed at a board meeting about an announcement to the ASX - Teleconference arranged to hear aftermath of announcement - Whether notice of teleconference meeting sent to various directors and responses as to availability of peripheral relevance only

LEGAL PRACTITIONERS – solicitor for one party to litigation seeks to communicate material to another party – with intention to persuade other party to terminate retainer of its own solicitors and to settle – whether Court can restrain. COSTS – indemnity costs – whether appropriate to order.

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999 (NSW) s 9(a) - Requirement that progress payment be calculated in accordance with the terms of the contract - adjudicator determines amount to be calculated by reference to a provision which is a mechanics provision rather than according to criteria set by contract - approach to calculation a matter for adjudicator - adjudication determination not invalid even if adjudicator makes error of law provided he makes bona fide attempt to exercise the power conferred by the Act - no denial of natural justice by adjudicator in not dealing with further submissions of respondent where to do so is unnecessary by reason of acceptance of claimant's primary submission - adjudication valid - claimant obtains judgment in District Court based on adjudication - respondent seeks repayment of part alleged to be liability of claimant to sub-contractor where respondent alleges it paid sub-contractor directly - failure to establish fact of payment - properly matter for cross claim under s 32(3)(b) of the Act - or matter for District Court with respect to its own judgment

TRUSTS AND TRUSTEES - Superannuation Trust - exercise of trustee's discretionary powers - trustee's power to reconsider decision - new material or change in circumstance required to enliven reconsideration of questions of entitlement - court's power to review trustee's decision.

LEGAL PROFESSION – inherent jurisdiction of Supreme Court to restrain solicitors from acting for clients – where solicitor likely to be a material witness – where solicitor’s evidence likely to be controversial and his credit and professional conduct impugned – test to be applied as to whether to restrain the solicitor from acting – interests of justice – clients to be represented by lawyers unfettered by personal stake in outcome – whether solicitor’s partner ought also be restrained from acting – discretionary considerations.

PROCEDURE – amendment – whether leave should be granted to add further claims for relief to Statement of Claim and Summons – where claim for relief would impose liabilities on third parties – where third parties are solicitors for defendants and not joined as parties and joinder would disrupt trial

CONTRACT – orders made by consent – whether signed short minutes of order create or evidence contract. PRACTICE AND PROCEDURE – orders as to costs made following argument – whether party should have leave further to argue costs issues.

INJUNCTIONS – interlocutory injunctions – to preserve subject matter of proceedings – distinction from Mareva injunction – where plaintiff has strongly arguable claim to beneficial entitlement to fund – where defendant has arguable set-off – whether set-off available – balance of convenience. - INJUNCTIONS – Mareva injunctions – where restraint in respect of only some and not all of defendant’s assets – where injunction only restrains dispositions without notice – whether exception should be permitted for legal and living expenses. - INJUNCTIONS – undertaking as to damages – whether sufficient notice to require plaintiff to show capacity to pay – evaluating potential risk of damage.

Criminal law - mental illness defence - appropriate orders.

PROCEDURE - Miscellaneous procedural matters - Adjournments - Application to vacate hearing at late stage - In suit for specific performance of contracts of sale of land from defendant to plaintiff, plaintiff sought to call defendant's real estate agent - Evidence not outlined to defendant - Defendant required matters to be investigated - Civil Procedure Act 2005, s 57 and Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146

Appeal from Local Court whether judgment should be stayed - prospects of success of the appeal - relevance of illness of appealing party.

LEGAL PRACTITIONERS – costs – whether agreement providing for how costs would be paid was a “costs agreement” – if so, whether void as barring right to costs assessment – whether right to costs assessment can be excluded – whether proceeding for debt under deed were proceedings to recover costs – if so, whether an abuse of process while costs assessment proceedings pending. - PROCEDURE – summary judgment – evidentiary requirements – formal requirements – belief in absence of defence – where expressed in limited terms – whether regard should be had to possibility of other defences as yet unarticulated.

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – judgment founded on adjudication certificate – restraint of enforcement of determination or judgment where unconscionability – Trade Practices Act 1974 (Cth), s51AA and s51AC.

PROCEDURE - Injunctions - Injunctions restraining excavation on right of carriageway and installing a fence along boundary of servient tenement adjacent to the right of carriageway - Expedited hearing granted - Whether interlocutory injunctions should be continued - Whether serious issues to be tried - Whether balance of convenience favoured injunctive relief

LEGAL PRACTITIONERS – Costs Assessment – Practitioner-client assessment – Appeal and review – extension of time – leave to appeal – from default assessment – where gross default by client in responding to application for assessment and bankruptcy notice – where strong prima facie case that client not liable or entitled to substantial reduction – effect of natural person client signing costs agreement personally as well as his corporation – where no guarantee clause – where legal practitioner also a joint venturer with client – whether work done qua solicitor or qua joint venturer – whether legal practitioner entitled to recover whole of costs or only so much as exceeds his own proportionate share – Costs – where applicant for extension of time guilty of gross defaults but has strong case on merits

CORPORATIONS - company co-owner of land with plaintiffs - company sole owner of building on land - apportionment of funds paid into Court after sale of land - valuation of land and building to determine respective entitlements

PROCEDURE – late application for leave to amend defence – leave refused.

PRACTICE AND PROCEDURE - Implied Harman undertaking - Documents produced on subpoena - Application for leave to use documents in overseas receivership proceedings - Proper procedural situation requires opportunity to entities who produced documents on subpoena to be heard on application -

ARBITRATION - application for stay of proceedings on the basis that dispute which has arisen is within provision in agreement that disputes or differences arising out of or in any way in connection with the agreement is to be referred to arbitration - whether dispute is susceptible to the provision - stay opposed on ground that defence to claim of plaintiff might raise liability of concurrent wrongdoers and result in multiplicity of proceedings

DEFAMATION - Capacity of the article to convey imputations - ordinary reasonable reader taken to have read the whole matter complained of - difference in substance - UCPR 14.30 subrule 3 applicable to defamation actions under the 2005 Act.

SUCCESSION [310]- Family provision application- Application by plaintiff widow (second wife)- Estate value $130,000- No provision for plaintiff in testator's will- Estate left to two sons of first marriage- Sons with little by way of assets- Plaintiff has no proprietary interest in any home- Plaintiff left with considerable debts upon the testator's death- Plaintiff made considerable contribution to the estate in a 10 year relationship- Held that the defendant hold the whole estate on trust for the plaintiff.

CORPORATIONS [32]- Remedies where oppression- Plaintiffs seek injunction to prevent defendants from holding an annual general meeting- Plaintiffs claim that this may amount to oppression to them because their supporters' membership applications have not yet been processed- Quaere whether injunction lies- Delay in bringing the application- Court reluctant to restrain meetings- Application refused.

Search warrant - seized items - no specific investigation underway - whether sufficient reason to retain.

EQUITY [338]- Application for interlocutory injunction- Building within strata scheme subject to strata management statement- Defendant proposing to erect doorway contrary to architectural code in strata management statement- Defendant has obtained local government consent- Plaintiff has shown an arguable case- Plaintiff has delayed bringing the application- Absence of prejudice to plaintiff- No loss will be caused to plaintiff if work is performed- Defendant bears risk that court will order demolition of work at final hearing- Application declined on balance of convenience.

PROCEDURE – application for extension of time to serve evidence – less than diligent approach by plaintiff to date – no specific prejudice to defendants – extension granted – additional order that proceedings be dismissed unless evidence served in accordance with orders. - DISCOVERY AND INTERROGATORIES – plaintiff proposes to obtain expert evidence – seeks further discovery – documents sought not logically or reasonably connected to subject matters of expert evidence – application dismissed.

MORTGAGES – application to restrain completion of contract for sale – whether formal defects invalidate s52(2)(b) notice – non-monetary default – whether reckless disregard of interests – whether damages an adequate remedy – whether making of contract for sale of land bars equity of redemption.

SUCCESSION - Wills, Probate and Administration - Probate and Letters of Administration - Whether grant of probate should be revoked - Plaintiff awarded a legacy of $100,000 in proceedings under the Family Provision Act 1982 - Defendant executors - Defendants' house designated as notional estate - Demands to pay legacy ignored

CHILDREN – INJUNCTIONS – extra-territoriality – parens patriae jurisdiction – application to amend summons claiming mandatory injunction ordering father to return to Australia – where Department of Community Services has parental responsibility for child – where father ordered by Children’s Court not to have contact with child – where mother and daughter have left Australia and not returned – where father has also left Australia – where father ordered by this Court not to leave Australia on day of his departure, but not notified in time – whether order prohibiting father’s leaving of Australia should be set aside – whether father should be ordered to return to Australia – whether child should be ordered back to Australia

SUCCESSION [143]- Will construction- Gift to J unless she predeceases testatrix or "dies before attaining vested interest"- Held in the text of this will words quoted surplusage.

INTEREST – recoverability of interest – interest on ultimate verdict after contested hearing on adoption of referee’s report where ultimate verdict obtained by the plaintiff is the result of various adjustments and where defendant had obtained more than amount to which it was ultimately entitled by use of the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) – purpose of interest award to properly compensate plaintiff for practical loss - PROCEDURE – costs – plaintiff ultimately successful, however circumstances warrant departure from usual rule that costs follow the event because plaintiff unsuccessful on various discrete issues and with respect to challenges to the referee’s report

TRUSTS & TRUSTEES – judicial advice – non-contest clause – whether clause catches suit for removal of trustees – whether clause void as against public policy – impugned provisions should be construed and intent of parties determined before the question of invalidity as against public policy is considered – whether proceedings against directors of trustee are relevantly proceedings against trustee.