Cases and authorities

Pleadings issue raised in final address - Need for clarity and disclosure in conduct of litigation - Holding a party to considered forensic decision

PROCEDURE - Setting aside orders - disclosure order provided for protection against self incrimination in terms of s 87 of the Civil Procedure Act 2005 - s 87 no longer applies if s 128A of the Evidence Act 1995 applies - whether order irregular and should be set aside - whether portion of order should be treated as struck out with s 128A then applying of its own motion

COSTS – security for costs – of claim and cross-claim – where almost identical issues on each – where only separate and substantive issue likely to be postponed – whether to exercise discretion in favour of orders sought.

EVIDENCE – admissibility of expert report – where report does not sufficiently disclose rationale – leave to adduce supplementary evidence

REAL PROPERTY – Torrens title – caveats – where plaintiff seeks order under (NSW) Real Property Act 1900, s 74MA for removal of caveat – where caveator bears onus to show that there is a seriously arguable claim to a caveatable interest which would entitle a caveator to an injunction prohibiting the proposed dealing – whether balance of convenience favours retention of caveat – held: caveator has seriously arguable claim for caveatable interest but not one that would prevail over plaintiff’s charge – part of proceeds to be preserved to satisfy caveator’s claim insofar as plaintiff’s claim not clearly entitled to priority.

CORPORATIONS – external administration – examination of officers – production of documents – application to set aside orders for production and adjournment of examination – where applicant contends that order is oppressive and abuse of process – court must be satisfied that particular examinations will be assisted or facilitated by production of particular documents – order for production extraordinarily wide – insufficient time to comply – where court cannot be satisfied that examination will be facilitated by production – held: order for production set aside – Where examinees claim that liquidators are pursuing examination for an improper purpose – where arguably inappropriate for liquidator to conduct examination – late application – held: examination adjourned – applicant to pay the liquidator’s costs thrown away due to adjournment of examination on indemnity basis

Natural Justice - Entitlement of parties to fair trial

PRACTICE - whether to allow use of discovered documents in fresh proceedings - whether claim should have been brought by amendment to current proceedings - whether application would have been deficient if this course pursued - whether prejudicial - whether circumstances require exercise of discretion.

CONVEYANCING - property held in co-ownership - application to appoint trustees for sale - standing of Plaintiff to make application - whether Plaintiff is a co-owner in possession - meaning of co-ownership in possession - possession here means a right to possession and does not mean physical occupation.

EQUITY [333]- Injunctions- Plaintiffs, licensees of post offices whose licences allegedly were wrongly terminated, seek to prevent the defendant from granting new licences in respect of those post offices- Order opposed by the defendant licensor- Concern of plaintiffs that they would lose goodwill of the two post offices- Whether to grant the injunction- Whether a prima facie case that the licences have not been properly terminated- Where the balance of convenience lies- Whether damages are an adequate remedy- Deep concern of the court that the public service be met and the interests of the public taken into account.

Corporations - Rights Issue - Application order under s 1322 (4) of the Corporations Act 2001 (Cth) extending time for a company to give notice to Australian Securities Exchange Ltd under s 708AA (2) (f) of the Act - Whether failure to lodge a cleansing notice as required by the Act was due to inadvertence - Whether substantial injustice to any party

PROCEDURE – case management – late affidavits.

EVIDENCE - privilege - settlement negotiations - whether proceedings are "to enforce an agreement... to settle" prior dispute.

CORPORATIONS - External administration - winding up - where dispute as to appropriate appointee - plaintiff’s nominee ordinarily appointed

PRACTICE AND PROCEDURE - direction to plaintiff to file statement of claim - application for extension of time - plaintiff has obtained substantial interim orders against defendants including asset preservation orders - plaintiff's further investigations lead to it considering whether to make fundamental changes to the scope of its case and to join additional defendants - plaintiff's determination of whether to do so depends on concluding interviews with some defendants, who are ill - court grants extension of time as sought, while expressing concerns - concern about whether, if it were so, it would be oppressive for a plaintiff to persist with proceedings in which an onerous interlocutory regime has been established, after deciding to alter the nature of its case and the class of defendants to the proceedings to such a degree as to undermine the basis of the interlocutory relief already granted

COSTS - Where defendant had not complied with order – where plaintiff inappropriately re-listed matter to threaten defendant without making contempt or other application - where defendant’s conduct materially contributed to unnecessary application

CORPORATIONS - winding up in insolvency - whether plaintiff required to serve on defendant its notice lodged with ASIC - whether defendant could allege, in view of s 459S, that the statutory demand was defective by denominating the debt in foreign currency

BUILDING AND CONSTRUCTION LAW - Adjudication determination made pursuant to s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) - Whether the adjudicator failed to make a bona fide attempt to exercise his powers under the Act – Whether the plaintiff was denied a measure of natural justice as required under the Act – Held that there was no failure by the adjudicator to make a bona fide attempt to perform his task under the Act, nor any substantial denial of natural justice - The adjudicator considered the operation of the appropriate clauses of the contract in question, the operation of the Act, and he afforded each party the opportunity to make submissions.

PROCEDURE – subpoena – enforcement – procedure on non-compliance – examination of witness.

CONTRACTS – building, engineering and related contracts – other matters – Building and Construction Industry Security of Payment Act 1999 – second payment claim for items the subject of a previous claim – second claim is precluded by principles of estoppel and the provisions of the Act – appropriate for the Court to intervene prior to an adjudication determination to prevent such a claim from proceeding - ESTOPPEL – issue estoppel – adjudication under Building and Construction Industry Security of Payment Act 1999

CONTRACTS - construction and interpretation - exclusion clauses - scope - whether clause sufficient to limit statutory liability.

LANDLORD AND TENANT – Lessor’s covenants – quiet enjoyment – application for interlocutory injunction where lessor undertaking building works to façade of building – where lessor claims works are authorised by provision of lease which permits modification, reconstruction and rebuilding of the building – whether the performance of works constitutes a breach of covenant of quiet enjoyment in that interruption and disturbance occasioned are undue within the meaning of the covenant – whether lease permits the lessor to perform works as long as they are performed reasonably – where defendant would incur significant costs if an interlocutory injunction were wrongly granted – where the plaintiff would incur significant interruption to its ability to carry on its business if an interlocutory injunction were wrongly refused – where balance of convenience is relatively evenly poised – where the plaintiff’s case is significantly stronger and more likely to succeed

TRUSTS AND TRUSTEES – Judicial Advice – Application by trustee for judicial advice as to whether it would be justified in defending proceedings – where counsel’s advice on prospects of success tendered – where draft defence to amended Statement of Claim tendered – Where plaintiff in substantive proceeding seeks direction that applicant provide all documentation supplied to Court in support of application – making an order for discovery of such material not an appropriate condition for grant of judicial advice – Held: Applicant would be justified in doing all things necessary or reasonably incidental to conduct the defence of proceedings in relation to all defences raised by it set out in the draft defence to be filed in those proceedings and on such other basis as it may be advised from time to time up to and including the setting down of the substantive proceedings for hearing

Resulting trusts - Thief holds stolen funds or property under presumed or resulting trust for the benefit of the rightful owner - Consideration of occasions when such a trust arises - Property is trust property in the hands of the thief because the thief is bound in conscience to hold the property on behalf of its true owner - Where trustee mixes own money with trust money in bank account the money remains subject to the trust - Charges - Where fund mixed with trust money is used to acquire other property, beneficiary entitled to charge both the fund and any property acquired from that fund - Tracing - Where trust money used to affect the value of the property, such as by the repayment of loans secured over the property, it can be traced into the property - Volunteers without notice receive the trust property subject to the trust

PROCEDURE - Costs - Uniform Civil Procedure Rules 2005, Pt 42 r 42.13A - defendant made offer accepted by plaintiff - offer open for long period - acceptance on last day - plaintiff entitled to costs on ordinary basis up to when offer made unless court otherwise orders - whether court should order costs up to time offer accepted

COSTS – where plaintiff failed on two issues but succeeded on a third – where no dispute as to third issue except as to extent of damage caused by defendants – where plaintiff fails to better Calderbank offer – held: plaintiff to pay defendants’ costs on an indemnity basis, except for cost of expert’s report relevant to issue to be decided on subsequent inquiry as to damages

Interlocutory injunction – variation – where doubt as to interpretation – in order to remove doubt – balance of convenience – jeopardy to proprietary rights of one party against risk of insolvency of other

PROCEDURE - Miscellaneous Procedural Matters - Adjournments - hearing to decide costs of statement of claim and first cross-claim - application to vacate hearing by plaintiff - written submissions of defendant cross-claimant received late - plaintiff becomes aware for first time that cross-claim may be reconstituted to claim loses related to borrowers introduced by second cross defendant - second cross-defendants insurer may be joined - plaintiff may have claim if refusal to indemnify as it paid premium - second cross-defendant was seeking order for costs against defendant - informed plaintiff now seeking costs against it this morning - plaintiff wishes to respond to defendant's submissions and consider its position in relation to second cross defendant's changed attitude

COURTS AND JUDGES – Proceedings in closed court – “Suppression orders” – where interlocutory injunction previously granted to restrain publication of imputations defamatory of plaintiff and in contempt of court – whether order should be made prohibiting publication of proceedings - principle of open justice – exception where open justice would defeat ends of justice – where disclosure of information that would permit or facilitate identification of W would defeat ends of justice – where some aspects of proceeding already in public domain

EASEMENTS - "full and free right" to park vehicles on burdened lot - whether valid as grant of easement - whether right exclusive.

PROFESSIONAL NEGLIGENCE - complaint against plaintiff's former solicitor - amendments to pleadings - amendment of defence following amendment of statement of claim - whether defendant requires Court's leave to amend defence - section 64 of the Civil Procedures Act 2005 - dictates of justice require that leave to amend defence and statement of claim be granted

CORPORATIONS – external administration – voluntary administration – application for declaration that administrators were not duly appointed – where dispute as to appointment of directors of company who purported to appoint administrators – whether notice signed by sole shareholder purportedly to appoint new director – valid resolution within (CTH) Corporations Act 2001, s 249B – where notice does not evidence a formal decision of the company – held, notice was a unilateral act of shareholder under a misconceived power, and not intended as a resolution of company under s 249B – held, director not validly appointed – consequently, administrators not validly appointed – Where appointors seek to have ineffective appointments cured under (CTH) Corporations Act 2001, s 447A – whether s 447A would authorise an order validating the removal and appointment of a director – where appointors seek to have ineffective appointments cured under (CTH) Corporations Act 2001, s 1322 – where s 1322 only allows for corrections of matters of a procedural nature – held, appointment of directors not procedural

DISCOVERY - Issue whether solicitors knew potential costs would be substantial - Access sought to unrelated files of solicitors to impute knowledge - Doubtful relevance but extent of discovery sought oppressive

EXPERT EVIDENCE - s 108C Evidence Act - expert evidence going only to credibility of defendant doctor

EVIDENCE – Business records – whether order limiting to non-hearsay use under s 136 should be made.

COSTS - security for costs inherent power of the court - whether claim had reasonable prospects of success - whether order would stulify proceedings - whether plaintiff's weakened financial circumstance caused by defendant - whether to consider likelihood of duplicity of proceedings - quantum - no question of principle.

POSSESSION OF LAND - Mortgage - Default - Whether Consumer Credit Code excluded - Facts - No special matter of principle

PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Issues intertwined.

BUILDING AND CONSTRUCTION CONTRACTS - plaintiff served payment claim - whether defendant provided payment schedule - whether defence in these proceedings arises under the contract. - BUILDING AND CONSTRUCTION CONTRACTS - provision of payment schedule - whether can be provided by an agent - agent can only provide payment schedule where provision would bind principal.

EVIDENCE - expert evidence - whether expert report admissible without acknowledgment of expert code of conduct - whether relevant time for knowledge is creation of report or swearing of affidavit annexing report - whether exceptional circumstances.

BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act - progress claim - whether adjudicator erred - whether a contract or arrangement - whether "construction contract" was "for the carrying out of residential building work."

COSTS - application for leave to amend statement of claim - tension between principle that costs follow the event and principle that party seeking an indulgence from the Court is usually required to pay the costs of the application for that indulgence.

PROCEDURE - Supreme Court Procedure - Removal of Trustees - Trustee Act 1925, s 70 - inherent jurisdiction - trustee mortgaged and remortgaged trust property and utilised substantial part of proceeds for personal benefit - defendant does not appear but served with documents - consent of proposed appointee

REAL PROPERTY [19]- Application to extend caveat- Plaintiff lent money to first defendant and registered caveat over her equitable interest in fee simple- Fee simple held in joint tenancy between first and second defendants- Right of one joint tenant to encumber their interest in fee simple- Construction of caveat- Caveat, on its true construction, only affects the interests of the first defendant and not the interests of the second defendant- Law as to encumbering property: "ius accrescendi praefertur oneribus" and "alienatio rei praefertur iuri accrescendi"- Consent of co-owner required to encumber the other aliquot share but that does not make the charge over the first defendant's interest in the fee simple ineffective.

PROCEDURE – costs – indemnity costs – where claimed that proceedings were doomed to fail from outset – whether proceedings were obviously or manifestly hopeless at outset – held: proceedings not obviously hopeless at outset – whether Calderbank offer unreasonably rejected – held: in context of quantum of dispute and minimal compromise element in offer, its rejection did not warrant indemnity order

EVIDENCE – Expert evidence – Single experts

REAL PROPERTY – mortgages – LEGISLATION – Home Building Act 1989 (NSW) – s 7D - whether terms of a deed between the plaintiff and the defendants conferred on the plaintiff an equitable mortgage in respect of certain parcels of land or whether s 7D Home Building Act 1989 (NSW) prevented such an interest – held the section did not apply to the contract embodied in the deed and that the plaintiff was entitled to declarations that it held mortgage interests in the land

Motor traffic accident - whether should be transferred to District Court - defence of contributory negligence - whether should be taken into account in considering likely damages - matter transferred

EVIDENCE - Client Legal Privilege - Claim to privilege taken in answer to a subpoena served on solicitor while witness said to be his client under cross-examination to preserve interests - Request to take the instructions on whether witness waived privilege rejected - Prospect that witness would waive privilege as had done with respect to earlier subpoenas - If waived argument that no client solicitor relationship need not be determined - Whether Civil Procedure Act 2005, s 56 and the just, quick and cheap resolution of the real issue with respect to the claim for privilege justified the Court granting leave to the solicitor to take instructions on waiver before the cross-examination continued - supervening consideration whether any privilege, abrogated under s 4(1) of the James Hardie (Investigations and Proceedings) Act 2004 (Cth)

COSTS - family provision proceedings - offers of compromise - non-acceptance by Plaintiff - order for provision no more favourable than Plaintiff would have received by accepting offer of compromise - automatic consequence, "unless Court otherwise orders" - whether Court should otherwise order - costs in family provision proceedings are treated differently from costs in other proceedings