Cases and authorities

ADMINISTRATIVE LAW - procedural fairness - complaint made out of time - request to show cause - rejection of application to file complaint out of time - whether delay caused by the Board - whether a denial of opportunity to respond to adverse submissions made to the Board

REAL PROPERTY [453]- Caravan Park- Application for appointment of administrator- Matters to be considered.

Building & Construction Industry Security of Payment Act 1999 (NSW) - Proper construction of words "final determination of the proceedings" as used in s 25(4)(b)

PROCEDURE - Costs - Whether in action for negligent advice, causation and reliance should be treated as discrete issues - Whether four days in the week immediately before trial a reasonable period to keep open an offer under the Uniform Civil Procedure Rules 2005, r 20.26(7)(b) - Whether the Court should order otherwise than that unsuccessful plaintiff have costs on ordinary basis today rejected offer that was more favourable was made and defendant have costs on an indemnity basis thereafter under r 42.15(2)(b)(i) - Whether plaintiff should indemnify defendant with respect to order that defendant pay cross defendant's costs of a cross claim alleging failure to provide proper instructions - Whether defendant should be ordered to pay interest on costs under the Civil Procedure Act 2005, s 101(4)

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – Compromise - Intention to enter contractual relations – preliminary agreements – Masters v Cameron – where lawyers for parties sign heads of agreement at conclusion of mediation contemplating exchange of further formal agreement – relevance of context and oral basis of heads of agreement – relevance of subsequent conduct – Discharge and breach – repudiation – election to accept repudiation – election by conduct consistent only with termination – INJUNCTIONS – Interlocutory injunctions - variation.

Civil claim for damages - motion for summary judgment - dismissal by the NSW Department of Education - proceedings in the Industrial Commission - duty of care - defence filed in proceedings

Civil claim - negligence in placing on a confidential register resulting in preclusion from employment - presentation of pleading in proper form - permission to replead

EQUITY – Confidential Information – documents allegedly leaked to press by employee of plaintiffs’ former solicitors – whether seriously arguable case to restrain newspaper and journalist from publishing or disseminating information therein – where information may include criminal offence - balance of convenience

PROCEDURE [93]- Dismissal of proceedings- Whether failure to prosecute proceedings with due dispatch- Plaintiff failed to comply with directions- Late affidavits- Defendant filed motion to dismiss proceedings, but did not adequately prewarn plaintiff- Plaintiff's delay not inordinate, inexcusable or contumelious- Motion dismissed.

EVIDENCE – PROCEDURE - Subpoenas – procedure when sufficiency of compliance questioned

PROCEDURE - Discovery and Interrogatories - Whether orders for further discovery, an affidavit as to inquiries made for documents and interrogatories as to the origin of documents should be made - Defendants in possession of a copy of an undiscovered document - Evidence that plaintiffs' procedure was to return original invoice or letter seeking payment with cheque - Evidence that neither original nor copy of document in possession, custody or control of plaintiffs- Copy of another document discovered but controversy as to original

PROCEDURE - Supreme Court Procedure - Charging orders - Moneys in court - Application for order charging the fund to answer judgment entered under a certificate of determination of costs in other proceedings dated May 2003 - Fund had been ordered to be paid out to first defendant but stayed for a fortnight - Whether first defendant had an equitable interest in the fund for the purposes of the Civil Procedure Act 2005, s 126(1) - Whether failure to nominate costs and interest in supporting affidavit contravened the Uniform Civil Procedure Rules 2005, r 39.45(2)(a) - Judgment entered for $320 more than owing - Whether charging order should be refused on discretional grounds - Whether injunction should be granted to extend the time for assessment of the costs of the proceedings

Application for jury trial - personal injuries - industrial accident - employer adjusted safety measures to reduce pollution - whether jury trial in interests of justice - jury ordered.

EQUITY [48]- Deed executed by husband and wife- Deed providing security over joint property and making wife liable for husband's debt- Whether equity will set aside- Whether wife was a volunteer- Wife involved in husband's business- Husband and wife not legally represented by choice- Creditor's representative explaining transaction- Apparent understanding- Deed not set aside.

PROCEDURE [566]- Costs- Matter settled except for costs- Demands made by the plaintiff beneficiary pitched too high- Unreasonable delay by the defendant executrix in administering the estate- Plaintiff to pay 15% of defendant's costs- Defendant seeks to be indemnified against the estate- Defending personal interest and reputation as well as defending the estate- 60% of defendant's costs to be indemnified.

EQUITY [2]- Where parties have agreed on a procedure for valuing their interest and that procedure breaks down equity will supply the machines- How valuer might be appointed.

CONVEYANCING - Relationship of Vendor and Purchaser - Restrictive Conveyance - Summons by one lot owner against another to enforce restrictive covenant applicable to 150 lot subdivision - Cross claim to modify or wholly or partially extinguish the covenant - No notices to others under the Conveyancing Act 1919, s 89(4) nor compliance with Precedence in Ritchie's Supreme Court Procedure at [14,006]

COURTS AND JUDGES - LEGITIMACY OF ESTABLISHMENT OF SUPREME COURT AND APPOINTMENT OF JUDGES CHALLENGED - PROPOSITIONS WHOLLY UNTENABLE AND MISCONCEIVED

LANDLORD AND TENANT- Use and Occupation - Tenant served with Notice to Occupy by mortgagee in action for possession against landlord - Tenant assured by landlord that a mistake and takes no action - Tenant served with Notice to Vacate by sherriff - Seeks injunction restraining his eviction - No equity against mortgage or mortgagee

PROCEDURE - Miscellaneous Procedural Matters - Amendments - Declaration sought that 3rd defendant as agent for 1st to 32nd defendants settled District Court defamation proceedings - Alternatively, declaration that 3rd defendant agreed to pay plainitff and indemnify him for any damages awarded in District Court proceedings - Alternatively declaration that 2nd defendant as agent for 1st and 3rd to 32nd defendants later settled District Court proceedings - Alternatively declaration that 2nd defendant later agreed to pay plaintiff and indemnify him for damages awarded in District Court proceedings - Application at close of oral evidence in plaintiff's case to amend statement of claim to seek damages for breach of warranty of authority agaisnt 3rd and 2nd defendants - Whether 3rd and 2nd defendants in conflict with other defendants requiring separate representation - Whether defedant prejudiced by limiting cross examination on striking out of materail in plaintiff's affidavits - Whether prejudice from long delay before a resumed date of trial - Whether prejudice could be compensated by a costs order

CONVEYANCING - Land Titles under the Torrens System - Caveats against dealings - Application for extension of caveat - Irrevocable undertaking to sell property signed by landowner - Whether offer or acceptance - Whether the Convayancing Act 1919, s 54A(1) requiring note or memorandum in writing signed by person to be charged was satisfied

COSTS – Security for costs – corporate plaintiff – where plaintiff is trustee – where recourse to trust assets available – whether assets sufficient to meet adverse costs order – relevant discretionary considerations – where individual co-plaintiffs in jurisdiction against whom order for security would not be made – where cases of plaintiffs are not co-extensive – where corporate plaintiff’s case is more complex and costly – where corporate plaintiff is funding other plaintiffs.

CORPORATIONS - Meetings – purported notification to ASIC of change of directors, change of registered office, transfer and allotment of shares – no meeting convened – claim to have acted under power of attorney from sole shareholder – no triable defence

CORPORATIONS - Directors and officers - Disqualification - Where corporations have repeatedly contravened fundraising provisions - relevant considerations - aggravating and mitigating circumstances

Mareva orders - principles - plaintiff a solicitor seeking unpaid professional costs and disbursements in relation to Family Court proceedings - interim costs order made by Costs Assessment Registrar in Family Court - plaintiff asserts agreement as to payment out of property partly owned by defendant - further evidence required as to current position of sale of the property and third parties involved

PROCEDURE - Supreme Court procedure - Mareva orders - Judgment entered in District Court on adjudication certificate under the Building and Construction Industry Security of Payment Act 1999 - Application in District Court for stay of judgment pending determination of other proceedings in the District Court - Continuation of interim order for stay not sought - Garnishee order granted in District Court successful - Application to this Court for mareva order - Orders sought requiring payment of garnishee receipts to Registrar of the District Court and injunction restraining the taking of any further steps to enforce the District Court judgment

Discretion to disallow questions put in cross-examination - Case within a case - s 135 Evidence Act 1995

REAL PROPERTY – Land under Torrens Title – Caveats – Balance of convenience – Relevance of agreement between parties - refinancing

COSTS - where two or more unsuccessful defendants - whether sufficient segregation of defences to justify departure from general rule as to costs - whether burden of costs should be apportioned betweeen defendants on the basis of referee's findings of proportionate contribution - where third defendant made "Calderbank" offer which required agreement by plaintiff and by first and second defendants - analogous to an offer of compromise - whether third defendant should be indemnified from date of offer. - COSTS - indemnity costs - where plaintiff makes "Calderbank" offer - no question of principle.

PRACTICE - Mareva orders - asset disclosure order sought on return date of Notice of Motion - defendant served, but does not appear - appropriateness of making asset disclosure order - terms of asset disclosure order

PROCEDURE - Summary Termination - Failure to comply with orders of Registrar to serve additional evidence on three occasions - New solicitors who repeatedly sought file from former solicitors to no avail - Former director of plaintiff incarcerated and diagnosed with cancerous growth moved from one correctional facility to others because of medical condition and other court commitments making it difficult to take instructions - Whether the proceedings should be dismissed

Equity - Injunctions - Mareva Injunctive relief against third parties

Separate question orders

PROCEDURE - Miscellaneous procedural matters - Adjournments - Application for removal of caveat - Interest as lessee of a registered lease claimed - Question whether caveator surrendered lease - Contract for sale of land with imminent completion - Time not of the essence and no damages if vendors could not complete - 14 days notice to complete to make time of the essence - Caveator in China not due to return to Australia until after completion date - Adjournment sought to a date shortly after the caveator's return to Australia and within the 14 days

PROCEDURE – Discovery – Subpoenas - Abuse of process – where subpoena issued seeking production of documents the subject of contested applications for discovery – whether application to set aside order for access and to set aside subpoenas should be heard instanter or with specially fixed motion for discovery.

BAILMENT – Bailee de son tort liable for losses save to extent shown to be without his fault. COSTS – competing claims to herd of cattle – where herd found to be of mixed ownership – where litigation triggered by trustee in bankruptcy, proposed sale of whole herd but some litigation probably inevitable to separate mixture – where neither party totally successful.

CORPORATIONS [91]- Directors- Validity of appointment- One director purporting to use power of attorney of another director to appoint alternate director- Power of attorney cannot confer powers of director- Held invalid appointment. CORPORATIONS [103] Validity of proceedings- Purported resolution appointing administrators- Deliberate convening of invalid meeting- Substantial injustice- Not procedural irregularity- Held resolution invalid. COSTS [575]- Administrators- Duty to inquire- Administrators' attention directed to invalidity of appointment- Pursued application- Held liable to pay costs upon default of payment by first defendant.

Sentence - contempt - breach of orders under Fair Trading Act 1987 - earlier convictions and sentences for offences under Crimes Act 1900 - need to avoid double counting.

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens patriae jurisdiction - Application by Director-General of the Department of Community Services that the Minister of Community Services be allocated parental responsibility for three young children pending final determination of proceedings before the Children's Court - Whether grandmother had breached undertakings given to the court to act as a full time live in carer of the children

INJUNCTIONS - Asset preservation orders - whether to be made in respect of foreign assets - whether disclosure order should be refused on ground that it compels defendant to give evidence - whether disclosure order should be refused on grounds that it requires respondent to incriminate self

CUSTOMS ACT - motion for permanent stay of proceedings - evasion of customs duty - alleged involvement in cigarette importation - tape of conversations made during customs officials' execution of search warrant - whether denied opportunity of tendering evidence consistent with innocence - whether abuse of process sufficient to result in unfair trial

SUCCESSION [317]- Family Provision- Claim by widower/de facto partner of 33 years- Insufficient provision- Elderly widower needing home care- Daughter willing to reside with widower as carer if house is extended- Concern with benefit that might pass to non-party- Held widower to receive small legacy and interest free loan to be repaid 6 months after plaintiff vacates his home.

Criminal Law - Parole administration - decision to revoke parole - whether based upon material that was false or misleading - failure of Authority to give adequate reasons - limited extent of Court's jurisdiction to grant relief.

PROCEDURE – adjournment – claimed ill health of crucial witnesses – unsatisfactory medical evidence – where witnesses also had responsibility for conduct of litigation on behalf of Club – where witnesses no longer giving instructions and to be replaced at imminent EGM – least risk of ultimate injustice.

LEGAL PROFESSIONAL PRIVILEGE - claim for damages for malicious prosecution and conspiracy - notice to produce - waiving of privilege - application of common law principles - advice attached to affidavit - affidavit not read in proceedings and not relied upon in motion hearing - whether privilege waived in respect of documents used in preparation of advice

WILLS [201]- Construction- Forfeiture under public policy rule- Gift over- Testator left estate to friend or, if he predeceased him, to a charity- Friend convicted of manslaughter of testator- Jones v Westcomb rule- Evidence of intention- Not clear whether testator intended "predecease" to cover other eventualities- Gift passes to friend who holds on constructive trust for deceased's next of kin.

REAL PROPERTY – Torrens Title – Caveats – application for leave to lodge further caveat – necessary for all co-owners having interest which would be affected by caveat to be joined.

DE FACTO RELATIONSHIPS – Relief claimed other than under Property (Relationships) Act – de facto parties are not limited to relief under the Act

Leave to file cross-claim - whether causes of action must fail - whether notice to solicitor of facts is notice to client - whether silence may be misrepresentation - whether silence of solicitors for opposing party is misrepresentation - leave granted in part.

Practice and procedure - Security for costs - Delay - Overlapping of two sets of proceedings