Cases and authorities

Practice and Procedure - Leave to amend - Reference out - Powers of referee to grant leave to amend

PROCEDURE – DISCOVERY – where defendants have repeatedly defaulted on complying with discovery over lengthy period but later rectified defaults – whether defence should be struck out - PROCEDURE – DISCOVERY – CONFLICT OF LAWS – where plaintiff is a law firm located in Kazakhstan – whether defendants (also in Kazakhstan) should be ordered to produce for inspection discovered documents – where documents are located and would be inspected in Kazakhstan – where defendants claim that production would contravene Kazakh civil/criminal law – whether documents subject to privilege against self-incrimination – whether a New South Wales Court can order a party to act in contravention of a law of a foreign State – distinction between procedural and substantive law – whether laws of forum in respect of procedure prevail – whether Court can take into account the laws of a foreign State when making procedural orders – onus of proof of illegality – whether allowing inspection would attract administrative, civil or criminal liability in Kazakhstan for disclosure of confidential commercial information – whether documents in fact contain confidential commercial information - PROCEDURE – DISCOVERY – whether defendants should give further and better discovery - PROCEDURE – DISCOVERY – Harman undertaking – where related arbitration proceedings on foot in United Kingdom – whether Harman undertaking given in respect of documents discovered should be set aside so that the documents can be used in the United Kingdom proceeding – where evidence suggests that application for access to discovered documents motivated by United Kingdom proceeding

LIQUOR AND GAMING – liquor licence – where hotel lease provides that licence is property of licensee solely and that upon and after termination of lease the lessee may deal with licence – whether lessor can apply for transfer to it of licence – whether Court should restrain lessor from making application to Licensing Court for such transfer – whether lessor or lessee entitled to transfer poker machine entitlements. - RESTRAINT OF TRADE – validity – protectable interest – lessor’s interest in premises being licensed – whether restraint protects interest in locational goodwill – whether restraint protects any other legitimate interest.

INJUNCTIONS – Serious question to be tried – whether valid termination of joint venture agreement – whether assets form part of business or joint venture – whether relief should be granted compelling continuance of deteriorated personal relationship – whether damages adequate remedy.

REAL PROPERTY - Joint tenants - only one grants equitable mortgage to lender - lender caveats whole of property - Caveat impermissible

TRUSTS AND TRUSTEES - s 81 Trustee Act 1925 - whether transaction proposed is expedient - requirement for it to be in the interest of the beneficiaries

PROCEDURE [40]- Overriding purpose of Civil Procedure Act and court rules to facilitate just, quick and cheap resolution of real issues- Modern policy re particulars- Defendants' request for particulars postponed where defendants in a position to file the defence, and where plaintiffs' affidavits are yet to be filed- Hearing date set down despite aspects of the case pending in higher courts.

PROCEDURE – cross-claims – leave to institute after judgment in principal proceeding – relevant considerations.

COSTS – Indemnity costs – whether proceedings improperly brought or maintained – cross-claim against third party – where cross-claim depends an establishing reliance – where reliance is inconsistent with position maintained by cross-claimant in defence of principal claim

BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - adjudication determination - adjudicator did not consider expert's report - whether denial of procedural fairness - whether report constituted a submission 'duly made' in support of payment schedule.

CORPORATIONS - s 459R Corporations Act 2001 (Cth) calculation of six month period within winding up application to be determined under s 459R(1)

COSTS - costs in probate litigation - whether unsuccessful defendants' costs should be paid out of the estate - defendants' costs to lie where they fall

PROCEDURE [693]- Contempt- Disobedience of court orders- Consent orders signed by counsel were made in court in the absence of officers of third defendant company- Nothing in the third defendant's solicitors' correspondence that suggests a lack of its awareness- No explanation proffered by third defendant- Court must infer given the seriousness of the making of an injunction over significant assets of the third defendant that orders must be known to all in control of the company.

PROCEDURE – application for leave to further amend Statement of Claim – where proposed amendment would allege that defendants purported to cause company to borrow moneys and make superannuation contributions, in substitution for existing allegation that they did borrow moneys and make superannuation contributions, without asserting whether they did or did not do so.

PRACTICE AND PROCEDURE – Application to appoint parties as representatives of investors in certain managed investment schemes in respect of proceedings concerning the entitlements of those investors under the schemes – Uniform Civil Procedure Rules 2005 (NSW), r 7.6 – Application opposed by proposed representatives – Factors relevant to the exercise of discretion under r 7.6 – Determinative factor whether appointment of representative would be expedient and save expense

practice and procedure - leave to file statement out of time - principles

CONTRACT [18]- Offer and acceptance- Whether notification of workers compensation claim having two elements produced one offer of compromise or two- Question of construction- Held one offer- Acceptance purported to be of one element only- No contract came into existence.

PROCEDURE – joinder of parties – trusts and trustees – requirement to join trustee in proceedings relating to trust – application to dispense with Uniform Civil Procedure Rule, rule 7.11 – where provision of trust deed purports to oust beneficiary if it sues trustee – whether sufficient reason to dispense with requirement that trustee be joined.

EVIDENCE – privilege – self-incrimination – (NSW) Civil Procedure Act 2005, s 87 – application for certificate pursuant to s 87 – where consent orders required defendants to produce self-incriminating documents – relationship between Civil Procedure Act 2005, s 87 and (NSW) Evidence Act 1995, s 128 – “real and appreciable risk” of self-incrimination – whether application for revocation can be made after an order made by consent.

PROCEDURE – DISCOVERY – computer access – application by defendants for access to a computer and email account – where authenticity of copy of relevant email in dispute – where plaintiff proposes to tender contents of computer as evidence – where computer not within previously ordered categories of discovery – expanding categories of discovery – whether independent expert should be appointed to inspect the computer – whether defendant should be present at inspection.

TRADE PRACTICES – misleading and deceptive conduct –application for interlocutory injunction – whether plaintiff has established an arguable case for final relief on basis of misleading and deceptive conduct

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – whether adjudicator denied party natural justice by failing to consider portions of adjudication response – whether failure to exercise powers in good faith – whether adequate reasons given for valuation of claim.

PROCEDURE – application to set aside orders of Associate Judge dismissing proceedings – where proceedings have lengthy procedural history – where plaintiff did not appear on day orders made – where plaintiff had appeared on most other occasions – whether plaintiff sufficiently explained absence – whether plaintiff failed to appear due to honest oversight – whether there was a triable basis for opposing the relief that was granted.

COSTS - s 66G application - whether circumstances displaced usual approach to costs of both parties out of proceeds of sale - plaintiff sought order that defendant pay plaintiff's costs on indemnity or party-party basis - order made for plaintiff's costs only to be paid out of the proceeds of sale

CONVEYANCING [189]- Caveats by equitable mortgagee- Prior registered mortgage- Proceeds of sale insufficient to satisfy all obligations- Whether caveats should be ordered to be withdrawn.

INJUNCTIONS - freezing order - assist disclosure order - grounds for - jurisdiction to grant - nature of evidence required - ex parte relief - party seeking relief ex parte bears a heavy onus to disclose all relevant material - orders set aside for material nondisclosure.

PROCEDURE – Application by plaintiff to rely on affidavit evidence served out of time provided for by directions – where application made on first day set down for hearing – where defendant has chosen not to prepare to deal with new issues raised by late affidavit evidence – where justice of case requires some of the late affidavit evidence be adduced – considerations of prejudice to defendant – whether defendant should be allowed election to vacate hearing – effect of election on admissibility of affidavit evidence – where defendant elects to proceed with hearing and plaintiff then applies to vacate - PROCEDURE – Application to further amend Statement of Claim where the Court had previously noted that no party intended to amend its pleadings – where application made on first day set down for hearing – considerations of prejudice to opposing party – whether opposing party should be allowed election to vacate hearing – effect of election on amendment of Statement of Claim - where defendant elects to proceed with hearing and plaintiff then applies to vacate.

Costs - Mediations

PROCEDURE – discovery and interrogatories – discovery and inspection of documents – further and better discovery – discovery by categories

COSTS – interest on costs – two categories could be allowed – interest ordered

CONTRACTS – CONSRUCTION OF CONTRACT – contract for the sale of land – where contract provides that purchaser accepts property with all defects patent and latent – where contract provides right of rescission to both parties in the event that building certificate is not issued – where contract provides that purchaser cannot make structural alterations to the property – whether vendor had done all things necessary to procure the issue of a building certificate – whether vendor obliged to effect repair work requisitioned by local Council or to allow the purchaser to undertake such work – whether vendor obliged to challenge the Council’s requisition or to afford purchaser opportunity to do so - CONTRACTS – WAIVER – whether a party can waive benefit of contingent condition where the contract confers right to rescind on both parties - CONTRACTS – CONDITION SUBSEQUENT – RESCISSION – where vendor purported to rescind on the basis that a building certificate was not issued before completion – whether rescission in bad faith, capricious, arbitrary or unconscionable – nature of equitable restraints on right to rescind – whether rescission ineffective if motivated by predominantly commercial considerations – waiver and election – distinction between rights available upon breach of contract and failure of condition precedent – whether relief against forfeiture available where contract rescinded due to failure of condition subsequent - DAMAGES – whether cross-claimant suffered compensable damage pursuant to (NSW) Real Property Act 1900, s 74P, due to caveat being lodged without reasonable cause – whether cross-claimant entitled to mesne profits after cross-defendant remained in occupation after contract validly rescinded.

Statutory interpretation - subpara 198(1)(a)(iii) Road Transport (General) Act 2005 - s 25(3) Road Transport (Driver Licensing) Act 1998 - appeal from Local Court - dismissal of charge of drive whilst disqualified - whether driver was an habitual traffic offender - whether prior drive whilst disqualified is relevant charge - appeal allowed.

EVIDENCE - Admissibility and Relevancy - Transcript of evidence volunteered by 5th defendant to plaintiff under a protocol containing a provision that it would not be tendered in evidence against the 5th defendant in a proceeding for the imposition of a penalty against him - Civil penalty proceedings - Plaintiff ordered to provide transcript to other parties in the proceedings - 1st defendant sought to cross-examine on the transcript - 1st defendant not bound by the protocol or s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) - Whether 1st defendant bound by confidentiality - Whether equity would grant an injunction - Whether prevented from cross-examining by s 127(1)(a) of Australian Securities and Investments Commission Act or by the Evidence Act 1995, s 26, s 29, s 42, or s 44 - Voir dire held under s 189 to determine whether, in terms of s 135, the 5th defendant would be unfairly prejudiced by the admission of the cross-examination

SUCCESSION [74] [94]- Administration- Whether special letters of administration to enable preservation of assets should be granted- Administrator appointed to represent the estate to commence proceedings in order that assets be preserved- Adminstration bond dispensed with.

COSTS – next of kin inquiry – administrators put claimant to strict proof in face of strong prima facie case – claimant adduces unnecessarily extensive and irrelevant evidence – neither party so relatively delinquent as to warrant special costs order

APPEAL – from decision of Associate Justice dismissing proceedings against one defendant pursuant to UCPR r13.4 – appeal dismissed – no question of principle.

EVIDENCE – admissibility of representation by participant in joint criminal enterprise against other participants – need for independent evidence of combination and of representation being uttered in furtherance of the common purpose – operation of s 87(1)(c) of Evidence Act – not confined to common purpose charged but applies to any common purpose relevant to proceedings – leave to re-open examination in chief refused at this stage – leave necessary because question does not arise out of evidence given in cross-examination.

CHILDREN – PARENS PATRIAE – medical treatment orders - application to discharge interim orders making child a ward of the Court and delegating parental responsibility to the Director-General, Department of Community Services – where child was born with high risk of contracting Hepatitis B from mother – where parents refused vaccination and absconded with child – where vaccination unlikely now to be effective but Director-General seeks that child be presented for medical examination – extent and nature of inherent parens patriae jurisdiction – effect of (CTH) Jurisdiction of Courts (Cross-Vesting) Act and (CTH) Family Law Act 1975 on inherent parens patriae jurisdiction – whether child should be made a ward of the Court before orders can be made – nature of medical treatment order – whether the Court can order police officers to recover child - PROCEDURE – CHILDREN – CLOSED COURT – whether proceedings involving exercise of parens patriae jurisdiction should be heard in closed court - CONTEMPT – where parents apparently deliberately failed to present their child for vaccination pursuant to court orders – whether matter should be referred to Attorney General for prosecution of contempt – whether prosecution in the interest of the child – whether prosecution in the public interest – relevant considerations – where Director-General of the Department of Community Services does not press for prosecution

CONTRACT – injunction to restrain breach - serious question to be tried – whether contract terminated or repudiated – whether post-termination restraints enforceable – whether express negative stipulations enforceable – gardening leave – illegal restraint of trade. - INJUNCTIONS – interlocutory injunction – whether damages appropriate remedy – loss of customer connection – repudiation – whether injunction amounts to specific performance – whether interlocutory relief constitutes final relief – effect on third parties.

Separate question orders - Representative proceedings

PROCEDURE – Supreme Court Procedure – New South Wales – pleadings – defences – (NSW) Uniform Civil Procedure Rules, rr 14.9, 14.10, 14.14 – where defence pleads that defendant relies on terms of a certain document for "their force and effect" and otherwise does not admit certain facts – whether defence adequately pleaded – whether r 14.14 prevails over 14.10 – particulars of “pregnant negatives”

CORPORATIONS – CREDITOR’S STATUTORY DEMAND – application to set aside creditor’s statutory demand – offsetting claim – debt for construction work – where plaintiff alleges works substandard – where no evidence of quantification or calculation of offsetting claim – whether plaintiff has a genuine offsetting claim – whether claim would reduce statutory demand to statutory minimum

INJUNCTIONS – Interlocutory injunction – where plaintiff propounds proprietary claim to proceeds of crop – where defendant has arguable cross-claim for compensation under the Agricultural Tenancies Act – balance of convenience

REAL PROPERTY – LEASES – construction – where covenant provided that the lessee shall not do anything which in the lessor's reasonable opinion may cause damage to the lessor, its tenants or other persons in or using the premises or neighbouring properties – where lessee has ceased to operate business from the premises – whether covenant imposed a positive obligation to maintain business at all times – whether ceasing to operate business was doing “anything” that may cause damage to the lessor, etc – whether lessor could reasonably form opinion that cessation of business would cause such damage – whether lessee entitled to relief against forfeiture. - INTERLOCUTORY APPLICATIONS – application by lessee for interlocutory injunctions – where question posed by application is mainly a question of law – balance of convenience – where resolution of question of law largely disposes of question for main proceeding.

PROCEDURE - Preliminary Issues - Misunderstanding as to whether an agreement as to calculation of damages - Application to treat liability under statement of claim and whole of cross claim as a preliminary issue - Defendants' submission that all matters inextricably linked

EVIDENCE – Admissibility of evidence – where evidence being adduced is a transcript of a recorded telephone conversation – where recording made by holding tape recorder to speaker - (CTH) Telecommunications (Interception and Access) Act 1979 – whether recorded conversation is an interception of communication passing over a telecommunications system – whether recorded conversation had become accessible to the intended recipient of the communication. - EVIDENCE – Admissibility of evidence – where evidence being adduced is a transcript of a recorded telephone conversation – (NSW) Listening Devices Act 1984 – whether recorded conversation obtained unlawfully – whether recorded conversation had become known to the party only through use of the listening device – whether use of the listening device was reasonably necessary for the protection of the lawful interests of principal party by whom it was recorded.

PROCEDURE – miscellaneous procedure – cross-claims – application for leave to file cross-claim – where primary proceedings in part concern enforcement of employment restraint of trade covenants against defendant – where leave refused in earlier application to file first cross-claim joining same cross-defendants and raising similar issues – where matter already set down for hearing – whether issues raised by second cross-claim are sufficiently connected with subject of primary proceeding – whether second cross-claim adequately pleaded – CORPORATIONS – oppression – whether enforcing employment restraint of trade covenants against defendant shareholders can amount to oppression – whether pleadings disclose an arguable case that proceedings against the defendants is not in the interest of the company as a whole – whether misleading the Court gives rise to a compensable action for abuse of process – ABUSE OF PROCESS – abuse of process by bringing action for collateral purpose – established principles – whether proceedings brought against defendants disclose a purpose not for the obtaining of relief within the scope of the relevant remedy – TORTS – intimidation – whether pleadings disclose that plaintiffs threatened defendants with unlawful act – TRADE PRACTICES – whether pleadings disclose exclusive dealings, exclusionary arrangements and misuse of market power by plaintiffs – where causes of action pleaded are “special Federal matters” within Jurisdiction of Courts (Cross-Vesting) Act 1987, s 3 – whether special circumstances shown to warrant hearing of matters within Supreme Court – unconscionable conduct – whether pleadings disclose unconscionable conduct within the scope of (CTH) Trade Practices Act 1974, ss 51AA, 51AB, and 51AC – “special disadvantage” – whether appointment of administrator to related company raises issues sufficiently connected with primary proceedings

Practice and Procedure - Discovery - Notices to Produce

REAL PROPERTY - Torrens Title - Caveats against dealings - third attempt to procure removal of caveat - whether abuse of process