Cases and authorities

PROCEDURE – Interrogatories – permissible purposes to elicit facts not evidence – not cross-examination – whether vexatious and oppressive.

CORPORATIONS - creditors' voluntary winding up - leave to proceed with or commence civil proceedings against a company in voluntary liquidation - appeal against decisions of Consumer, Trader and Tenancy Tribunal concerning dispute between plaintiffs/owners and builder now in liquidation - whether plaintiffs should be left to lodge proofs of debt - relevance to application for leave of liquidator's assignment to a third party of company's rights to subject-matter of Tribunal determinations

LANDLORD AND TENANT – termination of the tenancy – generally – where plaintiff seeks declaration that defendant not entitled to terminate and for relief against forfeiture – Whether defendant entitled to terminate lease – where plaintiff held to be in arrears – where defendant entitled to terminate lease for two separate defaults on lease – quantum of arrears – Whether plaintiff entitled to relief against forfeiture – discretionary considerations – where rent not brought up to date – where no evidence that plaintiff would be able to service lease in the future – where bond would be inadequate to cover present or future defaults –relief against forfeiture refused

ADMINISTRATIVE LAW - Particular Tribunals or Bodies - Injunctions sought to restrain the defendant from seeking adjudication of a payment claim under the Building and Construction Industry Security of Payment Act 1999 - plaintiff party to contract with third party who subcontracted to defendant - claims made by defendant on third party under the Act - upon termination of subcontract, defendant made claim upon plaintiff - whether an abuse of the processes of the Act

[PLEADING] - Whether defendant should be precluded from bringing Cross-Claim because of ambit of plaintiff's claim - Where proportionate liability claims - Where cause of damage not yet identified

PROCEDURE - Miscellaneous Procedural Matters - Further Evidence - application by defendant for leave to adduce further expert evidence explaining extent to which opinions have altered as result of leading plaintiffs experts evidence in reply - report completed - suggestion that plaintiff have leave to serve a further expert report in response - issue limited to share valuation on one or two bases

REAL PROPERTY – Torrens title – Easements – Right of carriageway – right to fence – Where plaintiff has right of carriageway over access handle to defendant’s property – where plaintiff claims that defendant has obstructed right of carriageway by erecting fence along the boundary of the right of carriageway – where gate cannot be opened from plaintiff’s side – extent of access points permitted from easement to dominant land – held: existing gate to be rendered able to be opened from within dominant land – plaintiff would not be exceeding reasonable user by relocating gate or installing second access point. – COSTS – general rule – costs follow the event – whether to depart from general rule – where plaintiff pursued claims to relief to which not entitled – where plaintiff made offer of compromise though not in compliance with UCPR r 20.26 – where if offer accepted defendant would have been no worse off – held: defendant to pay plaintiff’s costs

REAL PROPERTY – Caveats – ex parte application for extension of caveat – circumstances in which order can be made ex parte

BUILDING AND CONSTRUCTION – adjudication under Building & Construction Industry Security of Payment Act 1999 (NSW) - validity of adjudication – claim that adjudicator’s determination invalid because receipt of notice of adjudicator’s acceptance alleged not to have been received – establish that notice was posted and accepted that notice did not come to the attention of the plaintiff – distinction between non-delivery and not coming to the attention of the recipient – defendant has benefit of presumption of delivery which plaintiff did not rebut by showing non-receipt by recipient, as opposed to non-delivery – adjudication valid

PROCEDURE - Application for an order setting aside order of dismissal - consideration of prejudice suffered by parties in setting aside order - application granted - application to further substitute parties - application granted

CORPORATIONS - External administration – winding up – winding up in insolvency - application to set aside a creditor’s statutory demand for $55,000 - dispute as to amount of debt owing – offsetting claim - defendant concedes except as to $4,582 from an initial claim of $54,597 - no reasonable dispute as to balance – statutory demand varied to $4,582

Courts and Judges - disqualification - apprehension of bias - familial association - husband of Judge, partner in law firm acting for a defendant - no basis for disqualification - application dismissed

EVIDENCE [23] – Admissibility and relevancy – in general – other cases – Judicial discretion to exclude – Evidence Act 1995, s 135

PROCEDURE – Pleading – where amended pleadings served out of time – whether inconsistency with earlier pleadings is fatal to late pleading – where pleading is shown to be incapable of proof in terms by evidence – where evidence discloses potential alternative bases for claim

Arbitration - Contest as to appropriate Arbitrator

CORPORATIONS - winding up – creditor’s statutory demand – whether statutory demand served on plaintiff by defendant should be set aside on ground that it is defective - whether statutory demand identifies general nature of debt to sufficient degree that reasonable person in shoes of director can assess whether genuine dispute as to existence or amount of debt or offsetting claim - where demand is not ambiguous - where particularisation of debt is defective - Held: There was a defect in the statutory demand.

APPEAL - Local Court Magistrate - implied term - contract of employment - overtime - appeal dismissed - costs

INSURANCE - total loss - construction of policy as a whole - insured entitled to reinstatement costs. - INSURANCE - insurance contract for declared values - alleged mistake in declared value - whether mistake could be corrected after loss.

EQUITY – trusts and trustees – breach of trust – where defendant knowingly received monies in breach of trust – where moneys repaid in part only –equitable charge imposed over assets and undertaking of defendant

APPEALS – application for extension of caveat or injunction pending appeal – relevant considerations – whether appeal is arguable – whether balance of convenience favours granting caveat – Held: limited injunction granted – defendant restrained from alienating or further encumbering property except on 21 days notice to plaintiff

EQUITY – equitable remedies – injunctions – application to vary of interlocutory injunction to permit publication of report of hearing before Commonwealth Parliamentary Standing Committee - EVIDENCE – admissibility and relevancy – objection to affidavit evidence based on contention that by virtue of s 16(3) Parliamentary Privileges Act 1987 (Cth) it was not lawful for such evidence to be tendered or received – evidence which is relied on to prove that something was said in Parliamentary proceedings does not infringe s 16(3) of the Act

COSTS - whether costs should follow the event or follow specific issues. - COSTS - indemnity costs - whether reasonable not to accept offer of compromise - whether offer considered properly on its merits.

PROCEDURE – Contempt – what constitutes – disobedience of court orders relating to access to records

EVIDENCE - Expert evidence – single expert – application for leave to obtain report – where single expert evidence already obtained under UCPR r 31.37 - where issue on which evidence sought is central - relevant considerations

LIMITATION OF ACTIONS - general - statute of limitation – plaintiff sought to join, under r 6.19 of the Uniform Civil Procedure Rules 2005, an additional defendant (“Brookfield”) to the action so as to make a claim against it in tort – whether the joinder was futile because the claim was statute barred under s 14(1)(b) of the Limitations Act 1969 – held that there was not sufficient information known of the damage suffered by the plaintiff as a result of Brookfield’s negligence and the circumstances in which it was sustained to determine confidently when the plaintiff knew or had the ability to acquire the knowledge that the damage had been sustained – it could not be said at this stage that the claim was statute barred - leave granted to join Brookfield to the proceedings

CORPORATIONS – other matters – defendant obtains default judgment in Local Court proceedings – defendant serves statutory demand – settlement agreement reached between the parties – payment by plaintiff in accordance with settlement agreement – plaintiff commences proceedings in this Court seeking to set aside statutory demand and a declaration in relation to settlement agreement – whether these proceedings constitute an abuse of process – parties agree to setting aside of statutory demand and abandonment of relief in connection with agreement – COSTS – issue whether statutory demand had been withdrawn – held plaintiff only entitled to its costs up to and including 22 October 2009 – held costs of proceedings relating to issues of enforcement of settlement agreement will be the costs in the Local Court proceedings

PRACTICE - separate determination of questions - whether to order hearing of an additional question after judgment delivered on questions earlier stated by consent - inconsistency with list statement and submissions - question hypothetical.

PROCEDURE - Miscellaneous Procedural Matters - Amendments - amendment sought on first day of a five day trial to raise fraud based on the evidence to be led on other issues - defendant not sure whether an adjournment would be sought if amendments allowed - no explanation of delay beyond counsel thought of new ground when writing submissions - Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 - (2009) 258 ALR 14 considered

EQUITY - lessee's interlocutory application for injunctive relief - lessor exercising right of re-entry following lessee's failure to comply with notice of breach of covenant issued pursuant to Conveyancing Act 1919 s 129 - whether serious question to be tried as to whether there was a breach of lease - no discretionary considerations relied upon that relief should be withheld - injunctive relief granted. - LANLORD AND TENANT - Conveyancing Act 1919 s 129 - lessee's failure to comply with notice of breach of covenant.

TAXES AND DUTIES - Land Tax - Chief Commissioner seeks approval to require persons to provide him with information or to produce documents under the Taxation Administration Act 1996, s 72(1) - objection decision in relation to 2004-2006 land tax years before court - assessments for those years further amended and amended assessments issued for 2002 and 2003 land tax years all relying on the Land Tax Management Act 1956, s 10T(2)(c) that denies the principal place of residence exemption unless while the owner is the owner the land is not used or occupied except as his or her principal place of residence - notice of objection to all amended assessments before chief commissioner for decision

CONVEYANCING - Land Titles under the Torrens system - Caveats against Dealings - whether a joint tenant may charge his interest in land without severance of the joint tenancy - PROCEDURE - Preliminary Issues - whether a discrete issue to be determined before rest of hearing under the Uniform Civil Procedure Rules 2005, r 28.2

PROCEDURE – Summary disposal - Application under UCPR, r 12.7, to strike out defences and cross-claims of the first and second defendants – loan agreement with 72% interest rate and 144% default interest - where first and second defendants have not complied with Notice for Discovery – where discovery not necessary - where plaintiff’s application would otherwise be dismissed – where defendants indicate that they do not intend to defend proceedings – where defendants admit indebtedness for principal and some interest - where defendants have brought cross-claim contending that transaction ought to be set aside for unconscionable conduct – where seriously arguable that default interest is penal - where in light of defendants admissions and indication that they do not intend to defend dismissal of present application would only defer inevitable – where plaintiff does not press for default interest

COSTS - interim costs - whether court should entertain application for interim costs when final costs hearing was being expedited

CORPORATIONS – Schemes – application for order convening meeting and approving explanatory statement – triple-stapled securities – concurrent corporation, trust and foreign schemes – deemed warranty – necessity for effect to be spelt out in explanatory statement – TRUSTS – Judicial advice – application for judicial advice in respect of proposed trust scheme

EVIDENCE – affidavits and statutory declarations – affidavits – plaintiff seeks to read affidavit of conversation with person unable to be called as a witness – where plaintiff’s solicitor sent letter to defendant’s solicitors purporting to give notice under (NSW) Evidence Act 1995, s 67 of an intention to adduce evidence of previous representation in reliance on s 64(2) – where notice substantially complied in form with requirements of (NSW) Evidence Regulations 2005, reg 4 – where requisite 21 days prior service not complied with – where there would be potential prejudice from inability to investigate – leave to read affidavit refused

Costs

PRACTICE - cross vesting - whether to move proceedings to Supreme Court of Victoria - Jurisdiction of Courts (Cross Vesting) Act 1987 s 5(2)(b). - COSTS - application of paragraph 57 of Practice Note SC Eq 3 - no question of principle. - COSTS - indemnity costs - inconsistent submissions on same subject matter - "relevant delinquency".

CORPORATIONS – costs – where creditor’s statutory demand issued – where demand later withdrawn – relevant considerations – where decision to withdraw statutory demand a unilateral decision and not the product of compromise between the parties – where demand issued on an obviously solvent company – where not self-evident that there was a legitimate dispute – where demand withdrawn after dispute established – whether use of statutory demand an abuse of process

PROCEDURE – pleading - CONTRACT – penalty – the defendant bank cross-claimed that it was entitled under the terms of a loan contract to be paid break costs by the plaintiff as the plaintiff had repaid early the total amount owing to it before the end of a fixed interest period – the plaintiff in its Commercial List Reply relied on the assertion that any such provision of the loan contract was void or unenforceable as a penalty – the defendant sought that the Reply be struck out as the provision requiring the payment of break costs was not a penalty because it was payable on early repayment and not on breach of the contract and because it was intended to compensate the bank for real loss it would suffer – held that the Reply would not be struck out as the plaintiff’s position was not so incontestably incorrect that it is bound to fail, as what is meant by a ‘breach of contract’ was not necessarily settled, and as there were live issues of fact to be determined

PROCEDURE - Miscellaneous Procedural Matters - Further Evidence - application by plaintiff for leave to adduce further evidence - counsel informs court evidence is limited to traversing two conversations - affidavit served covers numerous conversations and facts that should have been dealt with in chief - trial imminent - application to revoke leave

Medical negligence - difficult case for plaintiff on causation - stronger case on loss of a chance - defendant's offer of compromise accepted - Court of Appeal departs from earlier decision - whether offer can be withdrawn.

CONTRACT – Specific Performance – Application by defendant/vendor for leave to rescind - Where Court has already ordered specific performance of the contract but remains uncompleted - Contractual right to rescind cannot be exercised by party in default - Whether valid notice to perform provided by Defendant - Whether failure to comply gives rise to right to terminate or rescind - Notice provided by Defendant was not a notice to perform

EVIDENCE - Admissibility and Relevancy - Application in 12th defendant's case to tender 87 financial market analysts' reports relevant to an assessment of the circumstances that existed at the time it is alleged by the Australian Securities and Investments Commission that it was in breech of provisions of the Corporations Act 2001 (Cth) - Reports not put to expert merchant banker called by ASIC who opined on 69 other reports and who gave his evidence in October 2008 - Evidence in case completed except for 12th defendant's tender of documents including the reports - ASIC had initially treated the reports as relevant to the case - Whether in the circumstances it was open to the 12th defendant to challenge underlying assumptions of the expert by the tender of the reports Browne v Dunn (1894) 6 R 67 - Whether tender should be rejected or ASIC should be at liberty to re-open its case or present a case in reply by recalling the expert - Whether discretion should be exercised under the Evidence Act 1995, s 135 - Relevance of some reports to another issue

Procedure – adjournment – application for anti-suit injunction – where local plaintiff’s position in foreign proceeding to be protected by local defendant/foreign plaintiff in interim

EVIDENCE – expert evidence – application to use expert evidence – where defendant seeks to obtain expert report on “coal preparation process” and “management practice” within coal industry – whether person with relevant expertise exists – whether any such specialised body of knowledge exists – Held – defendant may obtain expert opinion – Court to determine at a later stage if evidence may be adduced.

PROCEDURE - judgments and orders - in general – stay of judgment until appeal – applicant not in position to meet judgment debt – applicant is sole director of company trustee for family trust – applicant has 25% of the issue shares in the trustee and is one of three discretionary beneficiaries – net trust assets approximate $20,000,000 – trustee may decide to dispose of assets to assist applicant in payment of judgment debt – undertakings proffered by applicant to prosecute appeal expeditiously, not to sell or deal with applicant’s own only real property asset – undertakings accepted – stay granted on condition that applicant makes payments corresponding to interest on judgment debt to judgment creditor on a regular basis – no issue of principle

REAL PROPERTY – Caveat – plaintiff claims caveatable interest as purchaser under contract – defendant claims to have terminated for failure to comply with Notice to Complete – whether seriously arguable case that Notice extended – whether balance of convenience favours extension of caveat

BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - whether 'construction contract' existed - whether payment claim valid. - PRACTICE - summary judgment - whether defence 'hopeless'.

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens Patriae Jurisdiction - Order sought by hospital to administer blood transfusions to a Jehovah's Witness child - Whether order should be made in opposition to parents - Whether child should be made a ward of court - Whether Family Law Act jurisdiction applies