Cases and authorities

CORPORATIONS – external administration – winding up – creditor’s voluntary winding up – leave to proceed against company in liquidation – whether application appropriately brought by motion in proceedings in which no relief will be sought against company – where proceedings if continued will jeopardise only asset of company – where liquidator neither consents nor opposes leave to proceed.

SECURITIES – charges – pursuant to condition imposed by Court – construction – whether charge of proceeds of suit caught moneys paid voluntarily by defendant in discharge of cause of action – where policy against assignment of interests in superannuation funds – whether charge defeated by contractual forfeiture – whether moneys ceased to be part of trust fund on admission but before payment of claim. - COSTS – provision in security obliging mortgagor to pay all mortgagee’s costs of acting in connection with mortgage – whether suit in connection with charge was caught – discretionary considerations.

COSTS – Costs order – Time and effort expended by party locating, inspecting, collating and analysing documents for the purpose of preparing affidavits and giving evidence – Whether such costs are “legal costs” within the meaning of s 4(1) of the Legal Profession Act 2004 (NSW) (the Act) and susceptible to assessment pursuant to s 364 of the Act – If not, whether they are “costs” within the meaning of s 302 and 367A of the Act – Such costs not “legal costs” because not “disbursements” because not charged or potentially charged for or subject of a liability to a law practice – Time spent by litigant preparing and conducting his own case not “costs” unless witness expenses – Whether declaratory relief appropriate where assessment not yet commenced and where statutory appeal available

APPEALS – STAY OF PROCEEDGINS – application by defendants to stay orders of Associate Judge made pursuant to (NSW) Family Provision Act 1982 pending appeal – where Associate Judge took adverse view of defendants’ conduct of case – whether appeal has prospect of success – where Associate Judge’s decision correct on evidence before him – where evidence now suggests defendants were incompetently represented and misled as to status and progress of proceedings – whether incompetence of legal representative an available ground of appeal – balance of convenience and prejudice – where declining stay could bankrupt defendant and deny viable appeal.

EVIDENCE – affidavits and statutory declarations – affidavits – application for leave to rely on several affidavits served out of time – relevant considerations – expert evidence – Uniform Civil Procedure Rules, r 31.28

PRACTICE - List statement - application to strike out - power of court - court may not undertake preliminary trial of factual issues - adequate particulars and legal grounds for the relief claimed required - Practice Note SC Eq 3. - PRACTICE - Statement of cross-claim - leave to amend - joining parties - no relief sought against party to be joined. - COSTS - Security for costs- whether cross-claimant unable to pay costs of cross-defendant if ordered - onus on party seeking security for costs - security for costs not granted for purely defensive cross-claims - cross-claim must raise a separate issue for determination.

NEGLIGENCE - valuation of property - duty of care - negligent valuation - reliance on valuation - damages.

PROCEDURE – APPEALS – self-represented appellant – appeal from decision of Associate Judge – where only real issue is costs – where Notice of Appeal raises numerous irrelevant side issues – where appellant unable to articulate substantive relief sought – where appellant disputed accuracy of transcript – whether appellant should be granted adjournment to prepare written submissions – whether appellant should be granted adjournment to obtain audio recordings of earlier proceedings - COSTS – whether Associate Judge’s exercise of discretion in ordering appellant to pay certain costs miscarried.

Rule in Harman's case - When subpoena materials may be made available in related overseas proceedings

REAL PROPERTY – Torrens title – caveats against dealings – application to extend operation of caveat until further order – where caveat not provided in evidence – whether plaintiff has a caveatable interest. - PROCEDURE – costs – indemnity costs – whether plaintiff should pay defendant’s costs on indemnity basis. - PROCEDURE – duty judge applications – how not to conduct caveat application.

CORPORATIONS – Insolvency – Liquidator plaintiff seeks order under s 588FF(1) of the Corporations Act 2001 (Cth) (“the Act”) to recover unfair preference payment made to defendant – Defence in s 588FG(2) of the Act raised – Failure to call persons with relevant opinions to prove insolvency not suspected by defendant– No explanation proffered for failure – Requirements of statutory defence not met

CORPORATIONS - voluntary administration - application by administrators to adjourn proceedings for winding up - relevant considerations

EQUITY - Fiduciary Obligations - Breach by director of corporate partner - Plaintiff entitled to an account of profits - Whether consideration for transfer of interest in partnership should be deducted from account - Whether balances of captial account and loan account should be taken into account - Whether entitlement to account extended to director in absence of any evidence of his receipt of profits from corporate partner - Whether interest should be allowed on profits in the account - Whether defendant entitled to reject Calderbank offers - Whether plaintiff entitled to indemnity costs from day after offer in accordance with Uniform Civil Procedure Rules 2005, r 42.14 - Whether plaintiff entitled to full costs of proceedings - Whether any allowance for skill should be made when accounts taken on basis that director would have continued to charge for his services

Indemnity Costs - Delinquency demonstrated by litigation having proceeded on false factual assumptions, plaintiff having failed to brief his experts with true and complete relevant histories of his injuries, physical capacities and work history

CORPORATIONS - voluntary administration - application by administrators to adjourn proceedings for winding up - court's inherent jurisdiction and jurisdiction under s 467 to adjourn winding up application - relevant considerations

PROCEDURE – application to amend Further Amended Statement of Claim – where amendments sought at late stage of hearing – prejudice to defendants – where amendments will require adjournment and recall of defendants’ witnesses – where adjournment and costs order can ameliorate prejudice occasioned to defendants – where adjournment more prejudicial to plaintiffs than to defendants.

EVIDENCE – application for leave to adduce evidence given by a defendant in earlier interlocutory hearing – where evidence to be adduced is an admission of defendant – relevant considerations for granting leave – where some defendants in current proceeding were not parties to earlier proceeding– whether the hearsay and/or opinion rules apply – where admission is tendered against third parties

PROCEDURE - Injunctions - Continuing correspondence between plaintiff tenant and defendant landlord - Defendant changes locks excluding tenant from possession - Whether status quo should be maintained - Whether plaintiff should have costs.

PRACTICE - offer of compromise - withdrawal before expiry of period of acceptance - material change in circumstances required.

PRACTICE AND PROCEDURE - Pleading - application to strike out - Civil Procedure Act 2005 (NSW) s 56(2) - necessity to give effect to the overriding purpose to facilitate just, quick and cheap resolution of the real issues in the proceedings - CORPORATIONS - Australian Securities and Investments Commission Act 2001 (Cth) s 12BC(4) - presumption that a person was a consumer - sufficiency of asssertion

DISCOVERY - power of court to make order for discovery against non-party in existing proceedings - Uniform Civil Procedure Rules, Part 5, r 5.4.

SUCCESSION [307]- Family provision- Widow and daughter make application- Widow left life estate- Widow was third wife with short life expectancy- Prenuptial agreement that parties would not claim on each other's assets- Widow's claim fails- Daughter lost large sum because taken in by confidence man- Loss not to be assessed as voluntary- Small award made to daughter in modest estate.

Family Provision Act 1982 (NSW)

INSURANCE - home warranty insurance - whether policy inconsistent with statutory requirements for insurance. - BUILDING AND CONSTRUCTION - measure of damages for breach of contract - consequential loss.

PROCEDURE [429]- Notice to produce documents- What time the notice ought to be given- Late notice not to be allowed to disrupt trial.

PROCEDURE - Injunctions - Negotiation for a lease - Plaintiff alleges agreement reached - Plaintiff goes into possession - Five years later defendant negotiates the lease site to third party and gives notice to quit - Defendant alleges rent due including annual adjustments back to date of alleged agreement and interests - Plaintiff alleges variation by conduct as no rent increases sought over the five year period - Third party requires vacant possession on 1 May 2008 - Plaintiff not keeping premises in repair and operating a service station on the site intermittently - Whether balance of convenience favours grant of injunction

BUILDING AND CONSTRUCTION - payment claim - served by fax - evidence that recipient machine faulty - whether payment claim "received"

INTEREST - interest on damages - discretion - compensatory purpose - interest only on amounts paid - interest on costs - form of order.

EVIDENCE – CHILDREN – admissibility of report on third defendant child prepared by medical professional – whether report prepared pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s 27 – whether report excluded by (VIC) Evidence Act 1958, s 28 or (NSW) Children and Young Persons (Care and Protection) Act 1998, s29

COSTS – Rectification suit – Intervention – where costs increased by intervention – where plaintiff ultimately but not completely successful and intervention partially successful.

CONTRACT – arbitration provision in building contract – construction - whether claims in tort and under Trade Practices Legislation covered by submission to arbitration

PROCEDURE – SUBPOENAS – plaintiffs seeking access to documents produced under subpoena by former solicitors of defendants – whether question of access to subpoenaed material determined under common law, (NSW) Evidence Act 1995, or Uniform Civil Procedure Rules, r 1.9 – CLIENT LEGAL PRIVILEGE – whether documents subject to client legal privilege – where substantial volume of documents produced to Court with no evidence of authors’ purpose(s) – inspection by Court – necessity for proper evidence of purpose – whether client legal privilege lost due to communications being in furtherance of criminal or fraudulent act – whether person providing advice must know criminal or fraudulent purpose – meaning of “furtherance” of a criminal or fraudulent act – WAIVER – where some documents over which privilege is claimed were exhibited to affidavits read in proceedings – whether the defendants have waived privilege over those documents

PROCEDURE – separate determination of questions – taking of accounts – order for accounts did not determine entitlements of parties – where inquiry beset by procedural defaults and late service of evidence – where defendant serves belatedly apparently compelling evidence on entitlement issue – where adjournment inevitable – whether entitlement issue should be determined as a separate question.

Separate questions

Sexual offences - child offender - jurisdiction of Children's Court - prosecution withdrawn - statutory effect - consequences of withdrawal - whether certificate of acquittal can be given.

EVIDENCE - Expert Evidence - Issue on appeal whether the provision of EFTPOS terminals were arrangements for the use of goods the provision of which is incidental and ancillary to the provision of a service if the provision of the goods is solely to enable the contractual provision of the service within the former s 186(1)(f) of the Duties Act 1997 and hence exempt from hire of goods duty - Whether expert report on general nature of the electronic banking system in Australia relevant to the question what was the intention of those responsible for the provision as to what the goods were to be used for - Whether leave to adduce the expert evidence should be granted under the Uniform Civil Procedure Rules 2005, r 31.19(3).

SUCCESSION [143]- Construction of holograph will and codicil- Proceeds to be "divided between" children A, B, C and D and Mr D- Mr D disclaims- Held four equal shares.

CORPORATIONS – LIQUIDATORS – appointment of provisional liquidator – where original Court appointed provisional liquidator resigns as not qualified – where liquidator who resigned was a nominee of the plaintiff – whether defendant should be able to choose replacement liquidator – where nothing to distinguish between fitness of nominees other than greater vulnerability of defendant’s nominee to allegation of bias – court appoints plaintiff’s nominee

EVIDENCE – expert evidence – application for leave to adduce evidence of a second expert where parties’ single expert appointed.

PRACTICE - Amendment - commercial list statement - to set up further causes of action - application sought after other claims held to fail - powers of court to grant amendment - application refused.

COMMERCIAL ARBITRATION – enforcement of foreign arbitral award – plaintiff sough to enforce a Chinese arbitral award (“the award”) against the defendants – leave granted to plaintiff to enforce the award as if it had been made in this State in accordance with the law of this State under s 8(2) of the International Arbitration Act 1974 (Cth) and s 33 of the Commercial Arbitration Act 1984 (NSW) – no discernible reason not to enforce the award – no appearance entered by defendant – judgment entered in favour of the plaintiff in terms of the award

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens patriae jurisdiction - Parents dissatisfied with interm care order of Childrens Court - Order sought dismissing orders of the Childrens Court - Whether parens patriae jurisdiction should be enlivened only in exceptional circumstances - Whether exceptional circumstances established - Whether parents should pay costs of Department of Community Services and the independent children's representative

PROCEDURE – NOTICE TO PRODUCE – whether notice serves legitimate forensic purpose – relevant considerations – stage of proceedings – available alternatives

Foreign judgment by defendant - whether should be registered - not a judgment of this Court - cannot be set aside.

SUCCESSION [320]- Application for provision brought by stepchild under the Family Provision Act 1982- Plaintiff presented very limited evidence as to an affectionate relationship with her stepfather, or her current financial position- Held on facts that there exist factors warranting the making of the application- Testator's previous will indicates that the testator did have the plaintiff in strong contemplation as a recipient of his benefaction- Relevance of this fact- Consideration of the needs of other beneficiaries and potential claimants.

Appeal from Magistrate's decision dismissing an information brought pursuant to s 20A(5) Crimes Act 1914 (Cth) - Failure to comply with condition of recognisance - Whether information alleging commission of an offence need be brought within period in which good behaviour is required - No requirement that information be brought within this time if offence in question occurs within the period in which good behaviour is required - No ambiguity found in s 20A(1A) Crimes Act 1914 (Cth)

CONTRACTS - Licence agreement - restraint of trade clause - appeal from arbitration - construction of agreement - whether arbitrator applied incorrect construction of clause - breach - whether two businesses operating in the same market offering similar service to potential customers constitutes 'competition' in breach of clause - whether restraint of trade clause unreasonable.

MORTGAGES [60]- Application for injunction to prevent mortgagee sale at auction where applicant suggests his plans for refinancing would discharge all the debts- Mortgagee has possession and statutory right to sell- Mortgagee owes equitable duties not to sacrific the interests of the mortgagor- Relevance of arrangements for the auction including sufficient advertisement of sale- Reserve placed on the property by the mortgagee indicates mortgagor's interest has not been sacrificed.

PROCEDURE – where plaintiff is second mortgagee of defendant’s land – where plaintiff seeking judicial sale of property – whether first mortgagee must be joined as a defendant to proceedings – whether informal consent of first mortgagee sufficient – where proposed sale involves sale of first mortgagee’s interest in the land – whether second mortgagee can sell the first mortgagee’s interest without its consent.