Cases and authorities

PRACTICE and PROCEDURE - summary dismissal - specific performance - whether reasonable cause of action is disclosed - limitation period - whether provisions of Limitation Act 1969 apply by analogy

CHILDREN – INJUNCTIONS – extra-territoriality – parens patriae jurisdiction – where Minister has parental responsibility for child – where father ordered by Children’s Court not to have contact with child due to unacceptable risk of sexual abuse – where mother and daughter have left Australia to visit extended family in Japan but have not returned within the time indicated by mother – where father has left Australia for China in contravention of arrangements made when mother and child left for Japan – whether child should be returned to Australia – relevant considerations

CORPORATIONS - Company under winding up co-owns certain land and licences certain other land to growers - Directions pursuant to s 479(3) of the Corporations Act 2001 (Cth) that liquidator justified in selling licensed land and orders pursuant to s 66G of the Conveyancing Act 1919 for trustee sale of co-owned land

BANKRUPTCY - termination of deed of arrangement - trustee unable after termination to exercise powers authorised by a deed of arrangement - whether upon termination of a deed of arrangement, trustee retains interest in asset comprising the trust property - who holds beneficial interest in trust property.

Motor accidents claim - time expired - whether full and satisfactory explanation - claimant trusted solicitors and acted reasonably - whether damages likely to exceed statutory limit - necessary to make a practical and realistic assessment - leave granted to commence proceedings

EVIDENCE – HEARSAY – witness statement tendered as evidence where witness unavailable for cross-examination – (NSW) Evidence Act 1995 s 63 – reasonable notice of tender – where notice not given – whether tender of evidence in absence of notice unfairly prejudicial to plaintiff – whether plaintiff should have been given opportunity to locate witness – where statement is a statement to police already known to plaintiff from earlier criminal proceedings - - EVIDENCE – HEARSAY – whether witness is “not available” pursuant to (NSW) Evidence Act 1995 – whether second defendant had taken “all reasonable steps” – where second defendant retained process server to serve subpoena on witness at last known address and undertake certain database searches – whether second defendant should have made enquiries with the Department of Immigration, the NSW Police and the Australian Electoral commission – where private investigator also retained - - EVIDENCE – HEARSAY – discretion to exclude witness statement – where statement made contemporaneously with event in issue – where statement made to the NSW Police with knowledge that it could be tendered as evidence and penalties could apply for false statements – where statement accords with already admitted evidence – where statement could have been contradicted by adducing evidence from other witnesses.

Criminal Practice & Procedure - application to discharge juror and jury - previous trial - hung jury - juror conversation at church with wife of juror in previous trial - whether juror or panel should be discharged.

CORPORATIONS - Application under s 237(1) of the Corporations Act 2001 (Cth) for leave to bring proceedings in the name of two companies - Requirement under s 237(2)(a) that the Court be satisfied that a company will not itself bring the proceedings or properly take responsibility for them - Receivers appointed who had not had sufficient opportunity to consider the position - Court not satisfied that company will not itself bring proceedings or take responsibility for them

CHILDREN'S COURT - jurisdiction expired when detainee transferred to correction centre and status changed to that of inmate - purported revocation of parole and restoration on review by Children's Court invalid when orders made subsequent to detainee being transferred to correction centre

CONTRACTS - contract of personal service between rugby league player and club - covenant not to participate in any football match of any code (with exceptions), without consent of club - principles as to availability of injunction - RESTRAINT OF TRADE - employer and employee - restraint operating during the period of employment - legitimate protectable interests - INJUNCTIONS - interlocutory injunctions - defendant served abroad - apprehended breach of contract abroad - court's jurisdiction - discretionary considerations - PRACTICE & PROCEDURE - leave to proceed against defendants served outside jurisdiction - relevant principles

CONTRACT - trade finance agreement - whether bills of exchange represented fresh drawdown under trade finance agreement - whether plaintiff's case should be limited to issues articulated in list statement - no question of principle.

REAL PROPERTY - Torrens title - caveats against dealings - caveator and caveatee were in personal relationship - proceedings in prospect between caveator and caveatee for adjustment of interests in property under Property (Relationships) Act 1984 - proceedings not yet taken - caveat claims interest based on contributions to the acquisition and conservation of the property - no evidence of contributions - merely a claim to exercise a right of action - no caveatable interest - caveat not extended - summons dismissed.

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of court – Amendment – whether plaintiff should be given leave to amend the statement of claim – whether viable cause of action disclosed against certain defendants – whether defendants could properly be joined where plaintiff not yet able to articulate cause of action against them

Associations and Clubs - Expulsion, suspension and disqualification - association incorporated under Associations Incorporat Act 2009 - expulsion of member - interlocutory injunction sought to restrain holding special general meeting - plaintiff member contends holding of proposed special general meeting would contravene Association's Rules - whether meeting would transact other business in addtion to expulsion, whether Association is acting without a "complaint" within the meaning of the Rules - whether a denial of procedural fairness - equitable remedies - interlocutory injunction - serious question to be tried - balance of convenience favours grant of relief - interlocutory injunction granted.

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of court – Amendment – whether defendant should be given leave to further amend their defence – after judgment given in separate questions – where proposed amendments would alter basis of case on which separate questions decided

EVIDENCE – Admissibility and relevancy – whether leave should be granted to read affidavit served late – balance of prejudice and injustice.

TRADE PRACTICES - misleading or deceptive conduct - unconscionability - sale of debt book - plaintiff seeking judgment for payment of remaining instalment of purchase price - where second and third defendants guaranteed obligations of first defendant - cross-claim - whether plaintiff engaged in misleading or deceptive conduct - whether alleged representatives made - whether deed of sale and deed of guarantee obtained by unconscionable conduct. - CONTRACTS - whether negligent misrepresentations made.

REAL PROPERTY - Torrens title - caveats against dealings - application for extension of caveat - caveator supplies credit to caveatee’s company - uncertainty in description of charge in guarantee alleged - whether caveatable interest - charge arguably created - form of caveat alleged to be defective due to misidentification of caveatee - whether caveat requires amendment - whether deficiencies in caveat can be disregarded under Real Property Act s74L - deficiency not fatal to the validity of caveat - deficiency disregarded - whether caveat interferes with interests of both joint tenants as registered proprietors of the subject property - only one registered proprietor joined as a party - no interference with interest or other joint tenant - caveat may be extended without joining other joint tenant - caveat extended.

PRACTICE AND PROCEDURE - joinder of parties - whether applicant a necessary party - whether applicant has a reasonably arguable case that its legal rights will be directly affected

PATENTS - assignment of patent and rights in future 'improvements' to the patent - whether later invention improvement or new invention. - CONTRACTS - covenant not to make comments that are disparaging or that may tend to injure or disparage covenantees - whether covenant breached. - DAMAGES - stipulated sum payable on breach - whether a penalty.

CORPORATIONS - Security for costs - Proceedings by company in liquidation - Whether reason to believe corporation will be unable to pay costs of defendant if defendant successful in its defence - Whether security should be ordered against company in liquidation - Discretionary considerations - Quantum of security - Held: Serious reason to believe plaintiff would be unable to pay defendants’ costs - Discretionary considerations favour plaintiff providing security.

SUCCESSION- Declaration sought that the plaintiff is owner of funds previously belonging to the deceased - Whether barred by previous dismissal of proceedings - Res judicata - Whether matter previously adjudicated on its merits - Whether adjudicated on merits even in absence of a contradictor - Held that plaintiff was barred due to previous dismissal – - DONATIO MORTIS CAUSA – Whether deceased’s actions constituted a valid donatio mortis causa -Whether sufficient delivery of the subject matter of the gift to the donee or a transferor, of the means or part of the means of getting at the property, or, the essential indicia of title - Whether bank statements sufficient indicia of title - Held that it is not – - COSTS – Whether indemnity costs should be awarded

JUDGMENTS AND ORDERS – Interest on judgment – calculation of “appropriate settlement sum” where offer of compromise has been made – whether third party offers can be used conjunctively to invoke statutory limitation on interest. - COSTS – Costs of interlocutory application – whether costs should be apportioned where successful issues split between parties. - COSTS – Interest on costs – factors to be considered where determining which party has had the benefit of funds during proceedings.

CONTEMPT – Procedure – where defendant does not appear to answer motions – where order made for defendant to attend – where defendant fails to attend but forwards medical certificate of depression

EVIDENCE - facts excluded from proof - on grounds of privilege - call for emails under s 36 Evidence Act - emails produced but client privilege claimed - waiver of privilege - emails made available

CORPORATIONS - administration - under deed of company arrangement - member seeks leave to bring proceedings for inspection of company's books, and (upon leave being granted) for order for inspection - relevant considerations

BUILDING & CONSTRUCTION - Building & Construction Industry Security of Payment Act 1999 (NSW) challenge to validity of adjudication determination on the basis that adjudicator failed to include the reasons for his determination under s 22(3)(b) of the Act - held that reasons given were sufficient

MORTGAGES - mortgages and charges generally - first mortgagee exercises power of sale - pays surplus proceeds into Court - second mortgagee applies for payment of surplus funds out of court - matters to be established - no competing claims - entitlement to funds made out - order for payment out made

CHILDREN – Parens patriae jurisdiction – Court to keep close supervision of implementation of radical order – obligation of DoCS to provide relevant information

ADMINISTRATIVE LAW – nature of appeal to Appeal Panel of Administrative Decisions Tribunal – interlocutory order – appeal to Appeal Panel – determination by single judicial member – arguable error of jurisdiction – stay granted - PRACTICE AND PROCEDURE – appeal to Court from final determination of appeal from stay order issued by Administrative Decisions Tribunal – issues to be weighed – stay of appeal orders on interlocutory basis – removal to Court of Appeal

CONTEMPT - Procedure - where respondent does not appear to answer motion

PROCEDURE - Security for Costs - renewed application on first day of trial - challenge to statement of assets and liabilities before the court on previous application - no explanation for delay in bringing renewed application - plaintiff by and large in the position of the defendant

EVIDENCE – expert evidence – parties’ single expert – procedure for clarification of expert’s report – whether appropriate for party unilaterally to discuss report with expert - PROCEDURE – interrogatories – where likely to reduce scope of dispute and facilitate accurate expert opinion – whether necessary

Practice and Procedure - Contempt Proceedings - Undertaking to the Court - Suggested ambiguity - Principled approach

CRIMINAL LAW AND PROCEDURE - Prerogative relief - "Call up" for breach of recognizance - Failure to exercise jurisdiction

CONVEYANCING – penalty interest for delay – where charge for land tax arises after contractual completion date – whether purchaser’s failure to complete caused by inability of vendor to complete

PROCEDURE - Injunctions - vendors claim for specific performance of sale of business including franchise agreement from defendant - defendant purported to terminate franchise agreement - interlocutory injunction sought - whether damages are suitable remedy

[LIQUIDATORS] - supervision by the Court - inquiry pursuant to s 536 of Corporations Act 2001 - consent orders

SUMMARY DISMISSAL - application to dismiss proceedings for want of prosecution - protracted delay in putting on expert and other evidence - reported failure to comply with Court's orders - self executing order made - costs

EVIDENCE – facts excluded from proof – on grounds of privilege – waiver of privilege over documents containing legal professional advice – whether or not the gist of legal professional advice has been disclosed – whether or not the contents of that advice has any forensic purpose – whether or not privilege has been impliedly waived – whether or not it is ‘reasonably necessary’ to see advice provided to an expert in order to understand a draft report from that expert - PROCEDURE – application to rely on expert report which was served late – whether or not the expert report is of any forensic value

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of Court – Amendment – whether plaintiff should be granted leave to further amend statement of claim

CORPORATIONS – External administration – Deregistration – Reinstatement – standing – whether applicant person aggrieved – where deregistration produced no consequences for applicant.

LANDLORD AND TENANT - Use and Occupation - leases terminated - tenant to make good before termination - failure to do so - entry to continue making good whether a holding over constituting a tenancy from month to month - whether tenant in breach of obligation to pay rent - GUARANTEE AND INDEMNITY - The contract of guarantee - whether landlord entitled to call on performance guarantee for failure to make good and failure to pay rent - whether demand to rectify as prerequisite to call on guarantee effective - PROCEDURE - Injunctions - whether serious questions to be tried

ASSOCIATIONS AND CLUBS - expulsion, suspension and disqualification - power to expel, suspend and disqualify - complaint that plaintiff member acted in a manner prejudicial to the defendant club's interests - plaintiff exercises right of appeal to general meeting of defendant - interlocutory relief sought to prevent defendant association suspending plaintiff's membership - complaint within defendant's Rules - sufficient reasons for suspension of plaintiff provided - alleged denial of procedural fairness - issues of lack of notice of complaint to plaintiff and apprehension of bias by defendant - serious question to be tried - balance of convenience favours grant of relief - defendant restrained from suspending plaintiff

CORPORATIONS – winding up – company wound up on just and equitable ground – liquidators – where ordinarily liquidator nominated by the applicant is appointed – where no reason to depart from ordinary course – PROCEDURE – costs – general rule – costs follow the event – where plaintiffs have totally failed on their summons and the defendants totally succeeded on their cross-claim – where no reason to depart from general rule

PROCEDURE - adjournment application by first defendant - solicitor ceasing to act - adjournment sought for new legal representation to be arranged - justice requires short adjournment being granted on basis of order of costs thrown away - costs payable forthwith

CORPORATIONS - Winding up – Creditor’s Statutory Demand –defendant seeks order that proceedings to set aside demand continue on pleadings - where plaintiff seeks to set up offsetting claims for damages for breach of contract and fraud - Held: plaintiff not required to plead its case but required to provide statement outlining case in respect of offsetting claims as provided by UCPR r 15.10

COSTS - whether to make an order for costs where matter discontinued - whether parties acted reasonably - whether possible to predict outcome without conducting a 'hypothetical trial' - whether proceedings a factor leading to settlement - whether interest payable on costs.

PROCEDURE – application to vacate hearing date – whether or not plaintiffs are prejudiced by their decision to change solicitors and counsel – consideration of objects of Civil Procedure Act 2005 and the dictates of justice – application for order for mediation – mediation not opposed by defendants on the condition that it does not result in vacation of the hearing date

COSTS - security for costs of cross-claim - whether cross-claim offensive in nature - whether delay sufficient to disentitle claimant - whether to order security for total amount claimed.