Cases and authorities

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of Court – whether notice to produce should be set aside – Discovery – obligations of party giving discovery to have discovered documents readily available during hearing.

Home and Commercial Units - Strata Titles - Application to terminate strata scheme - Appropriate principles - Borsky v Proprietors Strata Plan No 19833 (1986) 7 NSWLR 84 applied - Strata Titles Act 1973, s 51

AMENDMENT - to defendant's pleading to allege fraud against another defendant after close of evidence in order to bolster statutory proportionate liability defence. - CONTRACT - whether statutory proportionate liability regime applies to a claim for breach of a strict contractual performance duty

PROCEDURE – application by defendant for leave to amend list response to allege sub-contractors are concurrent wrongdoers – proportionate liability – where pleading did not identify relevant acts or omissions and causal connection between those acts or omissions and the losses in respect of which the plaintiffs sue – whether pleading sufficient to demonstrate what is necessary to show duty of care between sub-contractor and subsequent owner – leave granted – Civil Liability Act 2002 (NSW) Pt 4.

EQUITY – Trusts and trustees – Applications to the court for advice and authority – whether trustee justified in paying successful costs of estate proceedings prior to defendants taking recovery action against plaintiffs

PROCEDURE – Supreme Court Procedure – Procedure under rules of Court – Evidence – Subpoenas – Restricted access to documents claimed to be confidential

EQUITY - cleans hands - knowingly false statement - direct connection with right sought to be protected - INJUNCTION - refusal - absence of clean hands

REAL PROPERTY – Torrens title – Caveats against dealings – Removal – onus of proof – caveatable interests – right to have registered proprietor give security on property to third party

PROCEDURE - costs - departing from the general rule - order for costs on an indemnity basis

PRACTICE AND PROCEDURE - adjournment of proceedings - refusal of Legal Aid - appeal against refusal - whether appeal was bona fide, or frivolous or vexatious or otherwise intended improperly to delay the proceedings - second refusal of Legal Aid on merits of the case - onus of proving bona fides of appeal - ill-health of Applicant - adjournment granted.

PROCEDURE – Judgments and orders – Enforcement of judgments and orders – Execution against property – freezing orders – whether freezing order could be maintained against property owned by judgment debtor’s regulated self-managed superannuation fund

CORPORATIONS – Winding up – Winding up in insolvency – (CTH) Corporations Act 2001, s 556 – whether period during which plaintiff was a director as well as an employee counts as non priority days – whether plaintiff’s retrenchment payment attributable to non priority day – CORPORATIONS – Winding up – Liquidators – Other matters – whether liquidator should be given a direction that payment take place within any particular timeframe – CORPORATIONS – Winding up – Winding up in insolvency – (CTH) Corporations Act 2001 s 563B – whether plaintiff entitled to interest of judgment debt in his favour – PROCEDURE – Costs – Departing from the general rule – whether costs should be ordered on an indemnity basis – whether proof of debt can be treated as a Calderbank offer

PROCEDURE – civil – interlocutory injunctions – no arguable case to obtain final relief

BUILDING AND CONSTRUCTION – where adjudication determination based on payment claim that included impermissibly re-agitated claims – consequences of issue estoppel and abuse process – whether determination void or whether enforcement of rights may be restrained to extent of invalidity – where adjudication determination involved substantial denial of natural justice – consequences of denial of natural justice – whether determination void – whether determination wholly void or void to extent of denial – Building and Construction Industry Security of Payment Act 1999 (NSW). - COSTS – whether partial success and partial failure – costs to follow event.

CONTRACT: performance guarantee and unconditional undertaking - recourse to security - construction and operation of trigger mechanism - commercial purpose - CONTRACT: meaning of "claim" - UNCONSCIONABILITY: sophisticated commercial parties - limited scope for application of equitable doctrines

PROCEDURE – civil – interlocutory issues – order that defendant not further encumber property – order that in event that property is sold proceeds be paid into court – order that defendant not be permitted to file further evidence without leave of the court

PROCEDURE - final orders - costs - Property (Relationships) Act proceedings - unrealistic offers of settlement made by parties - Plaintiff successful but to extent of about 30% of amount claimed - Partial costs order

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Paries – Joinder and addition of parties – beneficiaries – whether necessary or proper – where no relief sought against beneficiaries

Costs

Banking - Whether or not enforceable loan contracts came into existence between ANZ and defendant equity partner of Coudert Brothers Australia [CBA Partnership] and later equity partner of Coudert Brothers LLP [CBLLP] then a limited liability partnership registered under the Partnership Law of the State of New York trading under that name-Powers of Attorney - Defendant claim that power of attorney pursuant to which a partner of the firm purported to sign transaction documents on defendants behalf was invalid - Whether the party liable to repay any alleged debt under the facilities was CBLLP - Whether in circumstances where the loan funds were paid directly to CPLLP, consideration sufficient to support the loan contract flowed from the ANZ to the defendant - Whether the loan agreements void for uncertainty - Estoppel by convention - Equitable estoppel - Misleading or deceptive conduct - Fiduciary duties - Laches - Mitigation - Unconscionability

CRIMINAL LAW - Crimes (Serious Sexual Offenders) Act 2006 - Interim supervision order - Where respondent has served sentence - Where respondent has lengthy criminal history for offences of sexual assualt - Where respondent has problem with alcohol abuse and history of non-compliance with parole and supervisory conditions - Where evidence of high risk of recidivism

PROCEDURE – whether Court has power to set aside order of dismissal under UCPR r 13.6. – COSTS – Legal practitioner – where costs incurred as a result of solicitor’s oversights and omissions

INJUNCTION - mortgagee's power of sale - principles - necessity for underlying cause of action - insufficient to prove offer to redeem, availability of finance and hardship - CONTRACT - obligations not conditional - performance of notice obligation not condition precedent to entitlement to charge increased rates and charges

PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of Court – Evidence – Other Matters – Production of Documents – Notice to Produce – application to set aside – apparent relevance

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of Court – Pleadings – Amendment – whether leave to amend in order to substitute the plaintiff should be granted – whether leave to amend the interlocutory process should be granted

JUDGMENTS AND ORDERS - construction of interlocutory orders.

JUDGMENTS AND ORDERS - variation

PROCEDURE – judgments and orders – application by plaintiff to set aside stay of proceedings made by another first instance judge and for leave to amend summons and list statement – application by defendant for dismissal of plaintiff’s application – whether appropriate to revisit orders – whether relevant change of circumstance – no change in factual circumstances – hearing of proceedings vacated.

PRACTICE and PROCEDURE - preliminary discovery - consideration of requirements for preliminary discovery under Part 5.3 of Uniform Civil Procedure Rules - consideration of discretionary factors - order made for limited preliminary discovery - COSTS - order that plaintiffs pay 50% of defendant’s costs where plaintiffs only partially successful and costs of application may have been unnecessary had a more reasonable stance been adopted by plaintiffs in responding to defendant’s inquiries

CONTRACT - construction - project delivery agreement - where defendant undertook to develop land - where clause 9.2 of agreement allowed defendant to sell "Englobo Lots" if sale price is no less than their "Retail Value" as defined - where defendant sought to utilise cl 9.2 to sell all unsold lots to parent company - whether subject matter of proposed sale is an "Englobo Lot".

AFFIDAVITS - prolix - oppressive - irrelevant and excessive detail - AFFIDAVITS - evidence in chief - inappropriate in particular circumstances - contentious oral communications - lack of utility and unfairness - oral evidence ordered - BARRISTERS - duty to court - to control bulk of evidence - to restrain clients - to limit waste of time and money

ADMINISTRATIVE LAW – judicial review – jurisdictional error – natural justice – sufficiency of reasons. - ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – discretionary factors. - CONTRACT – building, engineering and related contracts – remuneration – statutory regulation of entitlement to and recovery of progress payments – adjudication of payment claims – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 9, 10, 20, 22.

Practice and procedure - whether to grant leave to a person who is not a properly qualified legal practitioner.

ADMINISTRATIVE LAW - judicial review - reviewable decisions and conduct - State Parole Authority power to vacate final order for parole - ADMINISTRATIVE LAW - judicial review - reviewable decisions and conduct - ADMINISTRATIVE LAW - discretion to stay order quashing setting aside order vacating parole

CONTRACTS - interpretation of contracts - where equipment supplied by plaintiff to defendant was damaged - whether defendant liable under contract to meet direct costs of repairs or whether defendant is entitled to be indemnified by insurance that plaintiff was required to effect and maintain.

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – whether leave should be granted to allow expert handwriting evidence to be obtained and adduced in respect of an informal will – discretionary consideration – balance of justice and prejudice.

PROCEDURE – Costs – Bullock and Sanderson orders – consequential orders

EVIDENCE – Admissibility and relevance – Opinion evidence – Expert opinion – whether evidence complies with Makita standard

DAMAGES – award – interest – whether interest should be calculated in accordance with UCPR or clause 15.2 of lease – where damages related to breach of contract and breach of provisions of lease – whether damages fall within clause 15.2 – UCPR Sch 5, r 6.12, Practice Note SC Gen 16. - COSTS – indemnity costs – whether plaintiff entitled to indemnity costs – construction of lease – whether defendant’s conduct of proceedings exhibited relevant delinquency – where part of plaintiff’s claims unsustainable – interest on costs – no question of principle.

PROCEDURE - admissions - application for leave by defendant to withdraw admission made in cross-examination - whether admission made inadvertently or without consideration of material matters - where relevant material had been put before defendant and defendant was questioned fairly about it - whether admission reflected true state of affairs.

EQUITY – trusts – where litigation is on foot concerning proceeds of sale of trust property – whether appropriate to grant order permitting trustee to make distributions to defendant for living expenses and legal costs

CONVEYANCING - Joint tenancy and tenancy-in-common - Severance of joint tenancy - Plaintiff claimed understanding not to sever - Balance of convenience against granting of an interlocutory injunction restraining severance

FAMILY LAW – Children – Secure accommodation order – authorises only minimum necessary force - Contact – grandmother - where contact desirable but child vulnerable and grandmother’s circumstances chaotic and likely to expose child to risk

EQUITY - TRUSTS - Whether implied trust - No intention - EQUITABLE REMEDIES - Whether constructive trust - No unfulfilled promise or assurance - No unconscionability - Equitable charge - Minimum equity - Expenditure of money on another's land - No right to enhancement value

PROCEDURE – Costs – Costs orders against legal practitioner

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Setting down for hearing – whether issues should be heard separately

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Trial – adjournment – whether hearing should be adjourned for half a day so that parties can continue settlement negotiations in circumstances where an open settlement offer has been tendered to the court – protracted complex dispute in religious and cultural community

SUMMARY DISMISSAL - non-compliance with court orders - hearing on merits denied - delay and default - prejudice to defendant - policy and principle underlying Sections 56-61 Civil Procedure Act, 2005

CRIMINAL LAW – sentence – post-custodial orders – interim detention order – extended supervision order – conviction of 2 counts of aggravated sexual assault and attempted murder – no prior sex offences – psychiatric evidence suggesting moderate to high risk of re-offending – whether prima facie case shown – interim order made.