Cases and authorities

COSTS – discontinuance – general rule – whether to depart from ordinary rule – where defendant unjustly enriched

PROCEDURE - costs - exercise of discretion as to costs - where judgment for small percentage only of amount claimed - proportionality of recoupment of costs to amount of judgment - prima facie entitlement to costs overridden by Calderbank offer - whether Calderbank offer involved compromise.

COSTS – indemnity costs – whether plaintiff should have known that case was unsustainable – plaintiff not precluded from persisting with case where some, but not all, bases are unfounded – where plaintiff called opposing party as witness – where witness gave evidence unfavourable to plaintiff – whether plaintiff precluded from submitting that Court should take a view of facts on a particular point different to that given by witness – plaintiff not precluded from submitting that, upon consideration of all circumstances in evidence, Court should take a view of facts that stands against evidence of witness – applications for indemnity costs dismissed.

CONSTRUCTION - trust deed - whether note holders adversely affected by constitutional amendment - relevance of plaintiff's self induced change of residence

PROCEDURE - Possession of Property - failures to comply with writ of possession and writ of restitution in Common Law Division proceedings - Crown Solicitor's advice that contempt proceedings inappropriate as writs addressed to Sheriff and not to first defendant - whether order should be made in Equity Division proceedings to vacate property and not to re-enter without permission

TRUSTS – Resulting trust – presumption of advancement – purchase by father in son’s name – whether presumption rebutted – EQUITY – equitable estoppel – proprietary estoppel – whether licence became irrevocable – consequences of non-compliance with attached condition – whether defendant sufficiently implicated in creation of relevant assumption.

CONTRACT – building, engineering and related contracts – Building and Construction Industry Security of Payment Act 1999 ss 10(1), 11(1), 11(1)-(2), 22(1)-(4) – the plaintiff challenged an adjudication determination in favour of the first defendant by the second defendant on grounds that the second defendant committed jurisdictional error and did not afford it natural justice because she did not have regard to material properly before her and determined the date for payment for the adjudicated amount on a basis which was not the subject of submission by either party – HELD – that both complaints were made out – there should be an order in the nature of certiorari quashing and setting aside the adjudication determination

CORPORATIONS - liquidators - where defendants gave undertakings to indemnify first plaintiff against risk of failure in previous litigation - where first plaintiff sought to enforce undertaking - where compromise reached - where defendants agreed to pay substantial sum of money to first plaintiff's liquidator - notice of motion by plaintiffs for court approval of compromise pursuant to Corporations Act s 477(2A) or direction of court pursuant to Corporations Act s 479(3) - whether s 477(2A) applies - whether a claim for indemnity in respect of a sum fixed by outcome of litigation is a claim for a debt - whether approval should be granted - CORPORATIONS ACT 2001 (CTH) ss 477, 479.

BUILDING AND ENGINEERING CONTRACTS – damages claim – cross-claim by second defendant for contribution or indemnity – where plaintiff’s claim against second defendant was an apportionable claim under Part 4 of Civil Liability Act 2002 – whether cross-claim barred by Civil Liability Act 2002 s 36 – whether cross-claim otherwise maintainable – whether a concurrent wrongdoer entitled to contribution or indemnity from any other concurrent wrongdoer – whether limited cross-claim should proceed – Law Reform (Miscellaneous Provisions) Act 1946 s 5, Civil Liability Act 2002 ss 35(5), 36

PLEADING - summary dismissal - no reasonable cause of action - no recognisable orthodox relief sought - PLEADING - oppressive unintelligible, confused and complex

PROCEDURE – Orders – setting aside – where costs order made against administrator personally in his absence – application to set aside.

CRIMINAL LAW - Fitness to Plead - charge of murder - previous fitness hearing and determined to be unfit - referred to Mental Health Review Tribunal - further review - found fit - second fitness hearing - found fit for trial.

CRIMINAL LAW - ex parte application for restraining orders against disposition of property - The Proceeds of Crime Act 2002 (Cth) s 18 - defendant charged with conspiracy to import commercial quantity of heroin - whether reasonable grounds for suspicion that defendant has committed a serious offence - property mortgaged to bank - restraining order granted but exception given to bank. - CRIMINAL LAW - ex parte application for examination orders relating to restraining orders - The Proceeds of Crime Act 2002 (Cth) s 180 - ancillary orders not granted.

EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Relevant considerations – voluntary associations – political party – where injunction sought to restrain preselection meeting – where matter had been determining adversely to plaintiff by internal dispute resolution mechanism – Balance of convenience generally – whether the defendant would suffer prejudice where opponent is elected and gains incumbency advantage – whether court should intervene before meeting absent manifest error in internal dispute resolution processes

EQUITY – Trusts and trustees – Applications to court for advice and authority – whether trustees justified in defending proceedings

PROCEDURE - application for security for costs - delay in application - whether order would stulify litigation - effect of cross-claim dealing with the issues of the proceedings that may be affected by a stay if order is made and security is not provided.

PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Parties – Joinder and addition of parties

PROCEDURE – Judgments and orders – In general – Other matters – substituted performance – execution of document in name and on behalf of party by Registrar – whether order can be made in anticipation of non-compliance.

PROCEDURE - adjournment - vacation of hearing date - hearing may render appeal in related proceedings nugatory - Defendant's right to proceed with defence and cross-claim made conditional on payment of costs.

PROCEDURE – where orders made for defendant to file and serve expert evidence and for plaintiff to serve expert evidence in reply – plaintiff applies to vacate orders – whether re-agitation of matters subject to issue estoppels arising from earlier Land and Environment Court decision – whether more appropriate for question of estoppel to be determined at the hearing – whether report relevant to question of compensation – directions to be given on plaintiff’s notice of motion, but otherwise dismissed. - PROCEDURE – defendant’s notice of motion seeking variation of orders to provide for service of surveyor’s report – relevance of surveyor’s report – defendant’s notice of motion dismissed.

BUILDING AND CONSTRUCTION CONTRACTS – assignment of cause of action – breach of express and implied warranties – DAMAGES – cost of rectification – costs incurred in relocating activities – damages representing loss of opportunity – calculation of prejudgment interest on amounts spent on rectification works and relocation costs – CORPORATIONS – leave to proceed against company in liquidation – PROCEDURE – costs – Calderbank offer and reasonable time for acceptance.

CHILDREN - Parens patriae jurisdiction – secure accommodation order - child approaching age of 18 - progress made by child - order discharged

PROCEDURE - Preservation of property - preservation of a fund under the Uniform Civil Procedure Rules 2005, Pt 25 r 25.3(3) - portion of deposit under contract for sale released to vendors for settlement - settlement did not occur - vendors purported to terminate contract - portion of deposit paid into vendors' bank account - whether order should be made requiring them to pay into court

EVIDENCE - opinion evidence - report of expert does not state assumed or observed facts - no indication of reasoning process - unfair to opposing party - report rejected.

BUILDING AND ENGINEERING CONTRACTS – challenge to adjudicator’s determination – whether open for adjudicator to conclude contract was wholly in writing or relevant terms were written – where notice of intention to apply for adjudication of payment claim not given within time limit – whether jurisdictional error by adjudicator in concluding that notice was served within time limit – preliminary questions for determination – date of service on plaintiff of first defendant’s payment claim – date for payment of progress payment – date by which first defendant was required to give notice of intention to seek adjudication – date on which actual notice was given – whether it was open to adjudicator to conclude that first defendant’s notice had been served in accordance with statutory time requirements – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 17(2)(a), 31 - Interpretation Act 1987 (NSW) s 76. - PROCEDURE – Supreme Court procedure – New South Wales – removal of proceedings – where plaintiff submitted that reasoning of Court of Appeal in Brodyn could no longer be supported in light of subsequent High Court case – where point is one for Court of Appeal – issue to be referred to Court of Appeal for determination – Supreme Court Act 1970 (NSW) s 51(5).

EVIDENCE – Admissibility and relevance – documents – secondary evidence – whether evidence of the contents of document should be admitted pursuant to (NSW) Evidence Act 1995 s 48(4) – whether unavailability established – prejudice – late service

PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – Discovery of documents – The application and the order – whether categories requested relevant – undesirability of framing categories as if subpoena rather than by reference to issues – PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Pleadings – Summary disposal and stays – whether application for summarily dismissal under r 13.4(1)(c), striking out under r 14.28, and stays under (NSW) Civil Procedure Act 2006 s 67 should be pleaded by way of defence or raised on motion.

REAL PROPERTY - torrens title - caveats against dealings - plaintiff's caveat over first defendant's property - debt owed by second defendant to plaintiff - whether plaintiff's caveat should be extended - question whether caveator's claim "has or may have substance" - arguably sufficient consideration provided by the plaintiff for the grant of caveat over first defendant's property through a promise to forbear taking further action against second defendant - equitable charge arguably created in first defendant's property to secure payment of money from second defendant to plaintiff - arguably an intention to create a caveatable interest rather than a mere agreement to lodge a caveat - arguably agreement for caveat complies with s 54A of Conveyancing Act 1919 - caveat has or may have substance - caveat extended

EVIDENCE – Hearsay – exceptions – business records – whether previous representation made in connection with a proceeding

EVIDENCE – Witnesses – adverse witnesses – whether party calling witness should be given leave to cross-examine

PRACTICE AND PROCEDURE – jurisdiction – defendant’s notice of motion seeking orders to set aside service of originating process or to stay proceedings – whether Supreme Court of NSW clearly inappropriate forum – where plaintiff has origin and place of business in NSW and defendant in Singapore – where both parties carry on operations internationally – where no special juridical advantage would accrue from having proceedings heard in either NSW or Singapore – where contract concluded in Singapore – where Singaporean law is governing law – non-exclusive jurisdiction clause – where witnesses situated across the world – where electronic discovery of documents kept in Singapore would not be burdensome – NSW not clearly inappropriate forum – application dismissed – UCPR rr 12.11, 11.7, Sch 6.

EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Generally – whether injunction should be continued – balance of convenience.

BUILDING AND ENGINEERING CONTRACTS - interlocutory injunction - restraining enforcement of determination of adjudicator - apprehension of bias - denial of natural justice - extension of time for adjudication - short time limit for agreement - no actual or implied agreement to extension - payment of adjudicator's fees.

ADMINISTRATIVE LAW - whether Department of Education & Training unlawfully rejected the applicant's employment application for fulltime work with the Department - whether prerogative relief should be granted - whether Department of Education & Training was required to accept the applicant's own evidence from Test of English as a Foreign Language - regulation of admission to teach in NSW public schools by Director-General

Parens patriae jurisdiction

PRACTICE AND PROCEDURE - discovery of documents

PRACTICE AND PROCEDURE - Transfer of proceedings from Supreme Court to Federal Court - Claim by employee for annual leave and long service leave - related claims in Federal Court - Federal Court has jurisdiction to hear all claims - interests of justice

EVIDENCE – Admissibility and relevancy – Opinion evidence – Expert opinion – In general – land valuation – whether leave should be given to allow valuer to give oral evidence in order to prove facts underlying opinions – where objection notified late and no competing valuation

EQUITY - application for interlocutory injunctive relief - whether defendant should be restrained from continuation of television advertisement - comparing its products with plaintiff's products - misleading and deceptive conduct - whether serious question to be tried as to whether plaintiff is likely to obtain final relief - whether balance of convenience favours grant of injunctive relief. - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) - misleading and deceptive conduct - comparison advertising.

CORPORATIONS – Corporations Act 2001 (Cth) ss 500, 553(1) – leave to continue proceedings against a company under a winding up order where relief sought is not capable of being dealt with by the proof of debt procedure and will be opposed – HELD – leave granted – leave to amend also granted

Practice and Procedure - Status of Practice Notes

COSTS - Sanderson order - principles and application

PROCEDURE – Costs – Departing from the general rule – costs follow the event – interest on costs

CORPORATIONS – Procedure – parties – derivative action – where company in liquidation – leave to sue in name of company in liquidation – relevant considerations – whether prospective defendant entitled to be heard.

LANDLORD AND TENANT - lease - rent review provisions - determination of value - whether personal valuation or exercise of skill required by Valuer General - express term specifying matters not to be considered - exercise of skill and judgment of valuer.

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Setting down for trial – whether hearing should be expedited – self-induced urgency – disruption to defendant by expedition

Building and Construction Industry Security of Payment Act 1999 - Plaintiff against whom a judgment has been entered who brings proceedings seeking to prevent a party from relying on that judgment without seeking to set aside the judgment is aware that section 25 (4) of the Act requiring security will not be triggered - Court cautious to ensure justice between the parties but also to ensure that the legislation under which the application is brought is not circumvented

CONTRACTS – building, engineering and related contracts – general contractual principles – parties – whether the first plaintiff or Olympia Group (NSW) Pty Limited (“Olympia NSW”) was party to the construction contract within the meaning of s 4 of the Building and Construction Industry Security of Payment Act 1999 (“the Act”) where Olympia NSW was the head contractor, where Olympia NSW had made payments to the defendant and where the first plaintiff was not carrying on business in the building and construction industry – whether the payment claim was effectively served on the plaintiffs – whether the payment claim was an abuse of the processes of the Act