Cases and authorities

CORPORATIONS – Winding up – Liquidators – Remuneration – Receiver of unit trust had paid moneys into court – Company in liquidation former trustee of unit trust – prior order that liquidator entitled to remuneration and expenses relating to administration of trust – Held that liquidator entitled to whole of the money paid into court – Application by second defendant for reimbursement of expenses incurred in providing an account dismissed

PROCEDURE – Separate determination of questions – where appropriate

EVIDENCE - Subpoenas - Legitimate forensic purpose - application to set aside - where defendant’s subpoena seeks criminal records of plaintiff and plaintiff’s father in relation to convictions for dishonesty - whether subpoena which seeks documents relevant only to credit is legitimate - where credit is an important issue - whether subpoena is “trawling” for evidence with which to impugn credit of witness - whether reasonable grounds to think that documents relevant to impugn credit will be found - Held: ample reason to think that relevant documents will be found in relation to plaintiff - No reasons before court to think evidence will be found against plaintiff’s father

CORPORATIONS – winding up – statutory demand – application to set aside letter of statutory demand – where court satisfied of service of originating process containing application under (CTH) Corporations Act 2001 s 459G – where court satisfied that documents served in accordance with UCPR r 10.14 – where genuine dispute about existence of debt – where substantial injustice caused unless demand set aside

Extension of caveat - Property settlement proceedings pending - Summons without claim for final relief - Caveat placed on title to subject property - Lack of caveatable interest - Financial and non-financial contributions to property - Offer of payment of proceeds of sale into Court

CORPORATIONS - Application for order extending convening period for second meeting of creditors, pursuant to s 439A(6) of the (CTH) Corporations Act 2001 - where key stakeholders consent to extension of time - where factors requiring administrators to proceed expeditiously are not significant - where return for creditors and public interest favour extension sought

SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – whether pecuniary legacies should be paid when belated family provision proceedings foreshadowed – SUCCESSION – Executors and administrators – Removal and discharge – removal of joint executor by consent

PROCEDURE – Judgments and Orders – Amendment – slip rule – where order sought and made for removal of caveat did not advert to fact that caveat operated in respect of three properties, only one of which was intended to be removed.

PROCEDURE - Costs - offer not accepted and judgment more favourable to defendant - whether exceptional circumstances shown to avoid indemnity costs under the Uniform Civil Procedure Rules 2005 Pt 42 r 42.15A - whether interest on costs under the Civil Procedure Act 2005, s 101(4) is limited to payment under orders for costs or extends to payments made by a party to his solicitors

TRUSTS AND TRUSTEES - Judicial Advice - Application by trustee for judicial advice as to whether it would be justified in defending proceedings and in assisting other defendants in proceeding - Where proceedings at early stage and trustee does not tender counsel’s advice but trustee’s case appears not to be unarguable - Held: trustees would be justified in filing defence - Not appropriate for trustees to fund other defendants - Further considerations deferred until close of pleadings.

PROCEDURE – application to strike out Statement of Claim –many defects in pleadings - Statement of Claim struck out with leave to replead. Where plaintiff seeks reconstitution of proceedings so that defendant becomes plaintiff – where not a proper basis to remove plaintiff - INJUNCTIONS - Application for dissolution of freezing order – where prima facie undertaking as to damages is inadequate – where no serious risk of dissipation of property – freezing order dissolved

PROCEDURE - Supreme Court procedure - New South Wales - procedure under rules of court - parties - joinder and addition of parties

PRACTICE & PROCEDURE – judgments & orders – suppression orders – application to restrain publication of imputations on basis of breach of confidence and injurious falsehood – where conduct of proceedings in open court would frustrate purpose of proceedings

CORPORATIONS - voluntary administration - extension of convening period for creditors' meeting - whether court should be predisposed against extension - "balancing" principle - relevant discretionary considerations - modification of s 439A under s 447A(1) to permit meeting to be held during extended period

REAL PROPERTY – Land under Torrens Title – Caveats – Extension of operation – plaintiff lodged caveat claiming “equitable interest in fee simple” – plaintiff’s interest is truly as equitable chargee – whether plaintiff should be granted leave to lodge further caveat – where seriously arguable that caveator has caveatable interest – balance of convenience – where caveat prevents defendant borrowing to fund defence, effect repairs and improve other land – where such borrowing would derogate from plaintiff’s priority – Held: balance of convenience favoured plaintiff lodging further caveat.

CORPORATIONS - External administration – winding up – winding up in insolvency – where proceedings instituted after earlier s 459G application dismissed as incompetent – when proceedings commenced more than three months after time for compliance with demand – whether presumption of insolvency arising from plaintiff’s failure to comply can be relied on - whether defendant precluded from disputing plaintiff’s status as creditor - whether plaintiff has established standing as a creditor - whether plaintiff has established standing as contingent creditor in respect of costs order previously made between parties - whether a prima facie case of insolvency made out - whether plaintiff should be granted leave to apply for company to be wound up - Discretionary considerations - whether application should be adjourned or dismissed to permit voluntary administration to proceed

PRACTICE - challenge to referees' report - no question of principle. - COSTS - meaning of 'proper and reasonable costs' - whether costs incurred were 'proper and reasonable'.

SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - judicial advice - meaning of phrase "my remaining relatives" - whether void for uncertainty - distribution to persons entitled upon intestacy - distribution per capita, not per stirpes - Benjamin order.

CONTRACTS - lease - damages for arrears of rent, loss of rent and remediation of leased property - mitigation of loss.

Practice and procedure - Notices to produce - Legal professional privilege - Waiver of privilege - Weighing exercise - Application of Evidence Act 1995 to matters ancillary to proceedings before the court - Effect in New South Wales of changes to the rules concerning pre-trial inspection of documents including notices to produce - Legal professional privilege as a substantive right - Legal professional privilege applies to the advice of foreign lawyers-Onus for assertion of legal professional privilege

MORTGAGES – Application for order for specific performance for grant of legal mortgage by defendant to plaintiff pursuant to deed of secured guarantee – where obligation to give mortgage was expressed to require covenant and include amount in a specified clause was omitted – where in absence of omitted clause it was impossible to ascertain intention of parties as to terms of proposed mortgage – whether clause is void for uncertainty

EQUITY - equitable remedies - declaration of equitable charge over property - extension of caveat - PROCEDURE - non appearance of defendants - sufficient notice of proceedings given to defendants - costs - general rule costs follow the event - costs of whole action - Calderbank letter served before hearing - letter satisfies Calderbank requirements - indemnity costs awarded - consequential relief to be sought

CORPORATIONS – creditors statutory demand – where defendant did not make an application under s 459G to set aside statutory demand – where plaintiff seeks application to wind-up defendant – application by defendant under s 459S for leave to oppose winding up by disputing debt – where defendant arguably solvent – where debt claimed will make no difference to solvency issue – leave refused – Whether to adjourn winding up application – special considerations

PROCEDURE - Contempt - Penalty - relevant considerations – where substantive proceedings resolved – where prosecutor no longer seeks imposition of a penalty – where contemnors have given apology and undertaking to the Court – where it was initially unclear whether conduct constituted contempt and ultimately required resolution by High Court – where contemnors consented to court order – Held: No additional punitive order made

PROCEDURE - Interlocutory Relief - lessee locked out of premises for failure to top up bank guarantee called upon by lessor for failure to pay rent - no obligation to top up under lease - invalid notice to quit - no notice under the Conveyancing Act 1919, s 129 - whether interlocutory mandatory injunction should be granted

CORPORATIONS - reinstatement - where purpose of reinstatement is to permit a litigant to bring an apportionment claim - winding up on just and equitable ground - where no director willing to act - whether court should dispense with advertising - leave to bring apportionment claim against company in liquidation - relevant considerations

COSTS - indemnity costs - builder serves statutory demand for adjudicated progress claim knowing owner has much larger claim for overpayment that is the subject of common law proceedings in the Court - plaintiff applies to set aside the demand - defendant delays service of submitting appearance - demand then set aside without opposition

CORPORATIONS - Applications pursuant to (CTH) Corporations Act 2001, s 456B(1), to be substituted as plaintiff - where applicant contends it is a creditor of the defendant - where defendant contends it has off-setting claim against the applicant - where Court cannot be affirmatively satisfied that applicant is a creditor – Held: A party with an untried claim for unliquidated damages is not a contingent or prospective creditor

PROCEDURE – Supreme Court procedure – New South Wales – expedition – application for new expedited hearing date after request to vacate original expedited hearing date due to addition of new defendant and new cause of action

CRIMINAL LAW - SERIOUS SEX OFFENDER - application for extended supervision order - preliminary hearing - order sought for examination by psychiatrists - release from custody imminent - interim supervision order for 28 days

[Orders] - Non-compliance with Court orders - [Dismissal] - Dismissal of proceedings for want of due despatch - Numerous failures to serve evidence - No proper evidence of steps in place to prepare matter for hearing

ARBITRATION - judicial review of award - whether arbitrator exceeded jurisdiction - whether 'manifest error on the face of the award' - whether arbitrator failed to give reasons.

ADMINISTRATIVE LAW – Consumer, Trader & Tenancy Tribunal – prerogative relief sought – privative clause – current application against interlocutory order – overlapping factual issues in civil and criminal proceedings – reliance on right to silence and right/privilege against self-incrimination – application premature and caught by ouster provision – summons dismissed

PROCEDURE - Injunctions - franchise agreement between plaintiff and defendant - whether third party substituted for plaintiff - no negative stipulation - whether injunctive relief appropriate

JUDGMENTS AND ORDERS – enforcement of judgment debts – application to rescind instalment order – factors to be considered in exercise of discretion – public interest in allowing judgment debts to be enforced.

Practice and Procedure - Discovery - Provision of discovery in electronic form-Reference to cost effectiveness in Technology and Construction List Practice Note SC EQ3 is appropriately construed as a reference to the overall cost efficiency of the discovery process, including the benefits to be gained in the later progress of the trial - Consideration of benefits of electronic discovery over hard copy discovery in litigation with voluminous documentation - Consistent with the overriding objective of the just, quick and cheap resolution of disputes, electronic discovery reduces the overall costs to the parties of the discovery and inspection process - An electronic database of discovered documents is likely to be productive of greater flexibility, efficiency and utility in litigation involving voluminous documentation

PRIVATE INTERNATIONAL LAW – Anti-suit injunction – where proceedings pending in District Court – where proceedings brought for “precautionary injunction” in Lebanon – where precautionary injunction offers superior remedy – Whether foreign proceeding vexatious, oppressive or abusive

COMPANIES - Corporations Act - whether breach of duties owed under ss 181, 182 and 183 - whether to grant interlocutory injunction under s 1324. - COMPANIES - directors - whether breach of fiduciary duties.

Trustee seeking judicial advice - use of trust property - right to exclude particular person uncertain - likelihood of cuasing offence - duty of trustee

CORPORATIONS - reinstatement of deregistered corporation - standing of applicant - deregistered company was a shareholder in another company with substantial assets - liquidator of that other company seek leave to distribute assets to the present applicant

PROCEDURE – application by plaintiff to reopen case after judgment reserved – relevant considerations – whether evidence sought to be adduced would cause undue prejudice to the defendants – where refusal to grant leave would likely result in an objectively incorrect decision – where court satisfied that plaintiff did not deliberately withhold evidence – where court satisfied that potential prejudice to defendants will be in part cured by allowing defendant’s to recall witnesses for cross-examination

EVIDENCE – admissibility and relevancy – where plaintiff seeks to tender “without prejudice” communications – where court satisfied that evidence adduced in proceedings is likely to mislead unless “without prejudice” evidence produced to qualify evidence

EVIDENCE – Expert evidence – professional negligence – admissibility of evidence of what a prudent practitioner would have done in relevant circumstances – necessity for additional or special qualification – necessity for relevant circumstances to be specified – necessity for witnesses’ rationale to be articulated

VOLUNTARY ASSOCIATIONS - Declaration and injunction sought requiring calling of meeting pursuant to requisition of member - Organisations – whether preconditions satisfied - whether requests to call meeting validly made - whether request via email “in writing” - held that requests validly made – held that email is writing – whether dispute justiciable - whether constitution of organisation constitutes a legally binding and enforceable contract – where Constitution had been treated by parties as binding in earlier litigation –held that organisation’s constitution is legally binding and enforceable – whether relief should be refused on discretionary grounds

ADMINISTRATIVE LAW – Liquor licence complaints – Liquor Act 2007 – procedural fairness – failure to give adequate opportunity to prepare case – failure to provide documents sought in order to test case of complainant – insufficient time to prepare case – limited orders made - LIQUOR AND GAMING – complaint about disturbances – Director General's Conference – legislation considered – failure to provide procedural fairness by providing insufficient time to prepare and failing to provide documents upon a summary of which the complainants rely – limited orders made

PROCEDURE - Injunctions - mortgagee sale of land by auction - bona fide purchaser for value without notice - contract of sale due to settle one business day later - application for injunction restraining registration of transfer of title and declaration that sale void and order to set it aside - no offer to pay into court amount secured on property - serious allegations of fraudulent conduct in selling at a significant undervalue - whether damages an adequate remedy - whether balance of convenience favoured allowing settlement to take place

TRUSTS AND TRUSTEES - Plaintiff advances funds from China to first defendant in Australia to be applied in accordance with his directions – where first defendant applies moneys in payment to second defendant and in reduction of her home loan – whether in accordance with instructions of the plaintiff – questions of fact – where first defendant claims plaintiff authorised her application of trust funds – Onus of proof – Held: first defendant bears onus of proof and must account for moneys admittedly received as trustee. - REMEDIES – Tracing – Whether funds transferred from the first defendant to the second defendant can be traced in equity - whether second defendant aware of breach of trust - whether second defendant was a volunteer - whether assets still exist in a traceable form - Held: not established that second defendant aware of breach of trust - plaintiff failed to establish that property still exists in traceable form – Where funds used by the first defendant to pay down her own mortgage - Held: plaintiff entitled to equitable charge over first defendant’s property. - RESTITUTION – moneys had and received – tracing – whether in personam remedy available against second defendant – defence of change of position – where second defendant gambled away moneys advanced to him – Held: change of position established – not established that second defendant did not act in good faith - restitutionary remedy not available. - COSTS: Departing from general rule – Bullock order – where effect would be to create asset and corresponding liability of husband and wife who are engaged in family property adjustment proceedings.

Practice and Procedure - Discovery - Late discovery of 37,000 pages of documents - Evidence Act 1995 - Discretion to reject evidence where probative value substantially outweighed by danger that evidence might be unfairly prejudicial to a party - Section engaged - Case management

Procedure - Access to court filed by non-parties - Application by media for access to Commercial List Statement and Commercial List summons - Principles of open justice - Public interest in administration of justice taking place in open court - Understanding the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings initiated in the courts

PROCEDURE - Costs – costs where proceedings settled – approach to be taken – whether there should be an order other than that each party pay their own costs on the grounds that one or the other acted unreasonably in bringing or resisting the proceedings respectively - held neither party had acted so unreasonably that there should be an order other than that each pay their own costs