Cases and authorities

EQUITY – application by plaintiff lessee for interlocutory and final relief – where mortgagee from lessor appoints receivers to lessor - where receivers served notice on plaintiff to vacate – subsequent unregistered lease –– whether lease enforceable as between lessee and lessor notwithstanding that it is not enforceable against prior registered mortgagee – where receivers acted as agent of lessor and not as bank in possession – whether on breach receivers had right to exercise all rights and powers of mortgagee to possession – whether mortgagee had consented to lease – estoppel – whether mortgagee bound to consent – discretionary factors for whether to grant or withhold relief.

PROCEDURE – Amendment – leave to file cross-claim – where proceedings part heard – where hearing dates would be jeopardised – where no irremediable prejudice from granting leave – where no reason to suppose cross-claim has substance

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Evidence – Other matters – Subpoenas for production – to third parties – seeking documents which defendant obliged to discover – whether documents sought are relevant – whether subpoenas are abuse of process on grounds that being used to obtain discovery, or otherwise.

CONTRACTS – guarantees – enforcement – where plaintiff bank sues remaining defendants pursuant to guarantees given by them for liabilities of a company – where remaining defendants led no evidence to prove substantive defences – where remaining defendants withdrew and took no further part in proceedings – whether guarantees executed – whether relevant mortgages executed – whether bank made demand on defendants – whether each of defendants honoured obligation pursuant to any demand – plaintiff entitled to judgment against each defendant – no question of principle.

REAL PROPERTY – EQUITY – EQUITABLE MORTGAGE – the owner (since deceased) in fee simple of two strata title properties, one a residential unit and one a car parking space mortgaged both properties to a lender by way of a registered mortgage over both titles – she subsequently refinanced the loan by way of a loan from the plaintiff bank which discharged the earlier mortgage by paying out the earlier mortgagee on her behalf – the bank obtained possession of the titles to both properties but obtained a mortgage in registrable form only over the residential unit and not over the car parking space – later the second defendant leant the owner monies and obtained an equitable mortgage securing repayment – HELD – the plaintiff had an equitable mortgage over the parking space, either by way of subrogation or by way of deposit of title deeds which took priority over the second defendant’s equitable mortgage

ADMINISTRATIVE LAW - prerogative writs and orders - certiorari - where s 17(2)(a) of Building and Construction Industry Security of Payment Act nor complied with - whether relief in the nature of certiorari against adjudicator's determination should be granted - discretionary considerations - certiorari granted - Supreme Court Act 1970 (NSW) s 69.

EVIDENCE – Witnesses – adverse witnesses – whether leave should be granted under (NSW) Evidence Act 1995, s 38

Costs application - Calderbank letter - Indemnity costs - Principles - Whether genuine offer of compromise - Whether rejection of offer reasonable.

PROCEDURE - miscellaneous procedural matters - admission made in defence - parties agree to amend Stament of Claim and Defence - Amended Defence withdraws admissions made in earlier form of Defence - no leave to withdraw admissions sought in addition to the making of general orders to amend - UCPR, r 17.2 - HELD - the Court's leave to withdraw in a proposed Amended Defence an admission made in an existing defence in addition the party agreeing to consent orders amending the pleadings.

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Summary disposal

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 one day so that parties can conduct settlement negotiations

EQUITY – Trusts and trustees – Applications to court for advice and authority – Petition or summons for advice – whether executors should settle or defend Family Provision proceedings where claimant and most but not all beneficiaries agreed on very generous settlement

BANKRUPTCY – Administration of property – Provable debts – s 58(3) – whether court has jurisdiction to grant leave under s 58(3) of the (CTH) Bankruptcy Act 1966 for a party to pursue a claim against a bankrupt – if so, whether leave should be granted – whether application for costs can be continued without leave after bankruptcy of respondent – proceedings by bankrupt – deemed election by trustee to abandon de facto property proceedings – whether election operates to preclude further prosecution of proceedings by bankrupt – whether proceedings should be stayed as vexatious or oppressive.

EMPLOYMENT LAW – identification of true employer – where formal written agreement with holding company but remuneration etc paid by a subsidiary and other indicia of subsidiary as employer – construction – redundancy pay clause – where surrounding circumstances favour wider construction despite narrow definition – resignation – whether acts amount to resignation

EQUITY – Equitable remedies – Injunctions – Injunctions to preserve the status quo or property pending determination of rights – Mareva injunctions – Relevant considerations

PROCEDURE – civil – parties – joinder – whether applicant has sufficient interest – where party with no interest in land sought to resist application for extinguishment of easement

MORTGAGES - defendant mortgagor's application for stay of execution of writ of possession - date for payment of balance owing under mortgage lapsed - repeated failure from mortgagor to pay on time - unsatisfactory nature of evidence as to whether there were sufficient funds to pay out amount owing - application denied.

PROCEDURE – freezing orders – whether Supreme Court has power to grant a freezing order in aid of Family Court proceedings – whether substantial risk that plaintiff will dissipate assets in order to avoid judgment that defendant may obtain

PRACTICE AND PROCEDURE - referee's report - whether referee's report should be adopted - relevant principles - whether referee erred in construction of orders for reference - no error in construction - UCPR r 20.24. - CONTRACTS - construction - whether referee misconstrued relevant provisions of construction management agreement - meaning of "costs of the works" in contract. - COSTS - indemnity costs - whether time limit for acceptance of offer of compromise was reasonable - not reasonable - costs not ordered UCPR rr 20.26, 42.12.

EQUITY – Trusts and trustees – Applications to court for advice and authority – Petition or summons for advice – Trustee for sale under Conveyancing Act, s 66G – where beneficiaries unanimously oppose sale – where trustee has exchanged contracts – whether trustee justified in completing sale.

PROCEDURE – dispute resolution procedure in contract – defendant seeking stay of proceedings – where expert determination provision mandatory – where defendant did not engage procedure within fixed time limits – whether dispute still falls within intent of dispute resolution provisions – whether entitlement to stay should be enforced on discretionary grounds – stay not ordered due to delays – application for transfer of proceedings to Commercial List – application to set aside subpoenas for production of documents – where real issues have not yet been narrowed by pleadings – where parties will have opportunity to obtain discovery once issues are defined – subpoenas set aside.

COSTS - indemnity costs - whether "relevant delinquency" in conduct of proceedings - where some of claims were manifestly unsustainable - where cross-claimants knowingly fabricated evidence - where pleading of cross-claim extremely unsatisfactory - where unsatisfactory response to request for particulars - orders made - no question of principle.

EVIDENCE – Expert evidence – where single expert appointed – whether report of another expert should be admitted – where expert reports tendered by annexure to affidavit of a party

PROCEDURE – Costs – Whether costs should be borne by company where its solicitor acted without proper retainer – Held: costs should be borne by the directors or purported directors of the company who had set in motion the retainer of the solicitor – interest on costs – Held: Interest to be payable at the rate of 7.5 per cent per annum on any amount payable under the costs order until the costs debtor has paid the amount due to the costs creditor.

CONTRACT – construction – building contract – alternative dispute resolution provision – where the parties refer disputes for expert determination which the provision provides is final and binding but subject to an appeal procedure which involves an attempted negotiated settlement – where the provision provides that the expert determination is to be final and binding unless reversed or overturned or otherwise changed under such procedure – where such procedure did not result in reversal, overturning or change – whether the parties intended the same claims to be determined by different tribunals – held expert determination binding

REAL PROPERTY - Caveats - Application for extension - whether interest caveatable. - STAMP DUTY - Admissability of unstamped documents.

EMPLOYMENT LAW - contract on employment - restraint of solicitation and on competition - validity of clause - public policy - whether restraints necessary for reasonable protection of legitimate interests of plaintiff - whether restraint on solicitation should be limited to clients of the firm for whom defendant provided services or extended to clients generally - duration - whether blanket covenant against competitive activity goes further than reasonably necessary for protection of plaintiff - severability - Restraint of Trade Act 1976 (NSW) s 4.

ARBITRATION – International Arbitration Act 1974 (Cth) – plaintiff moves for enforcement of two foreign arbitral awards of the International Court of Arbitration of the International Chamber of Commerce – no issue of principle

CONSTRUCTION - undertaking to court - context and surrounding circumstances

EVIDENCE – Facts excluded from proof – Grounds of privilege – Professional confidence – Legal Profession – Waiver of privilege – Whether privilege waived – Whether disclosure inadvertent

POSSESSION - Notice of Motion to set aside Judgement - no question of principle

SERIOUS SEX OFFENDER – extended supervision order – variation to terms – no issue of principle

COSTS – where plaintiffs fail on most claims but succeed on one minor claim – apportionment of costs

PROCEDURE – cross-vesting – application to cross-vest – application to stay proceedings or for court to decline to exercise jurisdiction – whether Supreme Court of Queensland the more appropriate forum – interests of justice – connecting factors – where contract concluded – where breach occurred – balance of convenience – location of relevant witnesses – availability of listing in commercial list in Queensland – not satisfied that Queensland is the more appropriate forum – UCPR r 12.11, Civil Procedure Act 2005 (NSW) s 70, Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) - LEGAL PRACTITIONERS – duties and liabilities – application to restrain solicitor from acting – where solicitor may be witness – whether conduct of party’s case could conflict with interests of solicitor – where no evidence that solicitor would not fulfil professional obligations – motion dismissed – Law Society of NSW Professional Conduct and Practice Rules 1995 r 19, Queensland Law Society Legal Profession (Solicitors) Rules 2007 r 13.4

REAL PROPERTY - Partition of Land - joint tenancy - severance - transfer by the defendant to affect severance - defendant had borrowed moneys granting an equitable mortgage over the land and allowing a caveat to be lodged without knowledge of plaintiff - Goyal v Chandra [2006] NSWSC 239 - (2006) 68 NSWLR 313 at 324 [48] distinguished

CONTRACTS - general contractual principles - subjective intentions of parties - whether defendant without defence - parties bound by the agreement made - REMEDIES - specific performance

COSTS ASSESSMENT - not a proceeding within meaning of Rules - COSTS ASSESSOR - not officer of court - DISCRETION - bifurcated claims before assessor and court - duplicity - unnecessary expense - possible oppression - Cost Assessment proceedings - discretion - refusal to stay - refusal to interfere

PROCEDURE - entry of orders - variation of orders

WILLS AND ESTATES – administrator – removal of administrator – whether funds properly administered – whether estate liable to contribute to mortgage over property held under joint tenancy. PROCEDURE – separate questions

PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – notice to produce – where extensive notices served during trial – where served in response to late served affidavits not yet admitted – whether oppressive – whether should be set aside

BUILDING AND ENGINEERING CONTRACTS – adjudication – determinations – validity – where prior adjudication made on same payment claim – where prior determination declared void – whether plaintiff could make second adjudication application – whether second application made within time allowed by s 26(3) – whether second determination void – judicial review – Building and Construction Industry Security of Payment Act 1999 (NSW) s 26. - STATUTORY INTERPRETATION – meaning of s 26(1)(b) and s 26(3) – giving effect to literal meaning – when time limit for making fresh application runs – considerations of inconvenient consequences – Building and Construction Industry Security of Payment Act 1999 (NSW) s 26.

COMMUNITY LAND DEVELOPMENT – community scheme – variation – s 70 of the Community Land Development Act 1989 (NSW) – Inapplicability of s 70(1)(c) - Whether continuation of scheme is impracticable – where there is unanimous agreement to a proposed termination of neighbourhood scheme and variation of the community scheme

PROCEDURE – interlocutory issues – injunctions – mandatory injunction requiring defendant to give control of website to plaintiff – website registered with foreign registrar – whether court has jurisdiction to make orders – whether court should revisit earlier court decision

REAL PROPERTY – torrens title – caveats against dealings – application by second defendants for second-named third defendant to withdraw caveat lodged by her against title of land owned by second defendants – where caveat specified equitable interest arising under deed of company arrangement – where third defendants claimed to have overpaid under deed of company arrangement – where second defendants gave mortgage to administrators of company – where administrators lodged caveat – where third defendants asserted right to subrogation – where third defendants consented to discharge of mortgage – whether caveat should stand – where form of caveat defective – where equitable interest not identified – whether third defendants be restrained from lodging any further caveat.

DEFAMATION LAW - application for stay of proceedings - where Federal Court proceedings relate to the same or similar factual matters were commenced first and outcome may impact upon the current defamation proceedings

INSOLVENCY - leave to proceed against company in liquidation - nature of issues makes court more appropriate venue to deal with claim.

COSTS - Family Provision Cases - Unsuccessful plaintiff - borderline case - no order for costs against plaintiff

REAL PROPERTY ACT - Torrens Title - caveats against dealings - application to extend operation of caveat - Real Property Act, s 74K - caveat already lapsed at time of application to extend - caveat extension prevented by Real Property Act, s 74LA - no caveatable interest shown in any event - summons seeks no final relief - caveat not extended - summons dismissed.