Cases and authorities

PRACTICE AND PROCEDURE – subpoenas – application to set aside subpoena – no legitimate forensic purpose – application granted

APPEALS - leave to appeal - interlocutory orders - challenge to terms of interlocutory regime permitting tenant to recover goods from premises after conclusion of lease - pending proceedings seeking final relief - whether utility in grant of leave - whether tenant had failed to comply with earlier regimes - leave refused

CIVIL PROCEDURE – pleadings – amendment – where applicant sought to plead an apportionable claim under s 34 of the Civil Liability Act 2002 (NSW) – where Part VIA of the Competition and Consumer Act 2010 (Cth) was the relevant statutory scheme – application for leave to appeal dismissed CIVIL PROCEDURE – pleadings – amendment – where applicant did not identify any particular “concurrent wrongdoer”

JUDGMENTS AND ORDERS – amending, varying and setting aside – application to reopen appeal under UCPR r 36.16 – whether Court determined the appeal on a ground not pleaded at trial – whether Court found ordinarily implied general obligation in contract to cooperate – Court found particular contractual terms pleaded, the essence of which was cooperation to achieve stated purpose CONTRACT – remedies – specific performance – whether Court found breach of contract – order for specific performance does not require proof of breach – sufficiently reasonable apprehension of breach may support order for specific performance JUDGMENTS AND ORDERS – reasons – duty to give reasons – whether Court gave adequate reasons in rejecting contentions of abandonment and unilateral release – matters relied on by parties referred to and rejected – reasons sufficiently explained conclusion reached – standard for reasons depends on nature of case, submissions and issues engaged

CIVIL PROCEDURE — Implied undertakings in respect of evidence served by the Defendant in these proceedings — Release from — Special circumstances — Plaintiff seeks to use that evidence in answer to proceedings in the Federal Circuit Court of Australia and District Court of New South Wales commenced by the Defendant — Consideration of whether the implied undertaking applies to the evidence — Consideration of whether, if the Harman undertaking applies to the evidence, the Plaintiff should be released from that undertaking — Held: Implied undertaking does not apply to the evidence — Plaintiff permitted to use the evidence in the Federal Circuit Court of Australia and District Court of New South Wales COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings — Consideration given as to whether a costs order should be made in respect of the Plaintiff’s application — Held: there be no order as to costs

HIGH RISK OFFENDERS – Interim Supervision Orders – Application – Test for imposition – Where offender has been subject to a five-year extended supervision order

SENTENCING – murder – conviction following trial – offender bashed victim and stole drugs – robbery was planned but murder not premeditated – contemptuous disposal of body – focussed defence – offence at mid-range – 25 years with non-parole period of 18 years and 9 months

ADMINISTRATIVE LAW – grounds for review – irrelevant and relevant considerations – inadequacy of reasons - procedural fairness – where State Parole Authority revoked parole order prior to release of plaintiff and subsequently refused to rescind revocation order - where SPA declined to rescind revocation of parole order based on information including material withheld pursuant to s 194 Crimes (Administration of Sentences) Act 1999 (NSW - whether there was failure by SPA to provide proper reasons - whether relevant and irrelevant considerations taken into account - where SPA not bound to take into account any particular consideration – whether SPA asked the wrong question – whether withholding s 194 material amounted to procedural unfairness CIVIL PROCEDURE - suppression and non-publication - application made by defendant for suppression orders in relation to information withheld by judicial member of SPA pursuant to s 194 - application for order in reliance on s 23 of Supreme Court Act that withheld information not be disclosed to plaintiff - receipt of closed evidence - whether ordinary requirement of procedural fairness can be modified where present hearing is judicial review of decision and decision maker entitled not to accord procedural fairness - where order should be made that evidence be received as closed CRIME – parole – refusal of SPA to rescind parole revocation order – whether decision made on the basis of false, misleading or irrelevant information

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court – judgment granted leave to appeal limited to specific issues – whether grant of leave should be extended to allow applicant to appeal against entire decision including costs order made by Registrar and reviewed by primary judge – no good reason to permit appellate challenge to costs order – costs order appears to have been appropriate in the circumstances COURTS AND JUDGES – bias – application for recusal – allegations of apprehended bias and actual bias against judges – applications rejected

CRIME – Appeal – Sentence – sentencing judge misinformed as to maximum sentence for one of the offences – error requiring re-sentencing – aggregate sentence – approach to mental condition – Bugmy principles – Henry guideline – effect of accumulation on ratio and special circumstances – sentence imposed.

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant convicted of one count of assault but acquitted of one count of assault occasioning actual bodily harm, one count of indecent assault and two counts of sexual intercourse without consent – whether there was in all the circumstances a miscarriage of justice – whether the complainant was unreliable and lacking in credit – whether the nature and quality of the evidence, as a whole, and the acquittals was such that the jury ought to have entertained a reasonable doubt about the applicant’s guilt – where no reason to doubt the reliability or credibility of the complainant – appeal dismissed

CRIMINAL LAW – conviction appeal – wound with intent to cause grievous bodily harm – s 33A(1)(a) Crimes Act 1900 – whether there was a reasonable possibility that the applicant believed that his conduct was necessary in order to defend his sister – if so was there also a reasonable possibility that what the applicant did was a reasonable response in the circumstances as he perceived them – applicant brought loaded pistol to meeting with complainant – reasonable possibility that applicant believed it was necessary to shoot complainant in order to defend his sister excluded – whether verdict of the jury was unreasonable or cannot be supported having regard to the evidence – whether mental element of offence proved beyond reasonable doubt – evidence of witnesses required careful assessment – reliability and credibility issues – unreasonable verdict not established.

CRIME – appeal against conviction – murder – applicant pleads guilty in 2016 to murder and sentenced for offence – applicant’s legal representatives obtain psychiatric report in 2015 before entry of plea – 2015 report indicates that defence of mental illness and partial defence of substantial impairment not available to applicant – 2019 psychiatric report indicates that partial defence of substantial impairment was available to applicant – application for extension of time to appeal against conviction – principles to be applied on appeal against conviction following guilty plea – claim that 2019 psychiatric report constituted fresh evidence – whether fresh evidence or new evidence – 2019 psychiatric report based substantially upon new account provided by applicant – new account of applicant not credible or capable of belief by a jury acting reasonably – miscarriage of justice not demonstrated – extension of time granted – leave to appeal against conviction refused

CRIME – appeals – interlocutory appeals – subpoena – where primary judge set aside subpoena - where applicant extradited from Serbia to Australia in relation to drug importation – where applicant issued a subpoena to Attorney General’s Department seeking documents, two categories of which the AGD’s sought to have set aside – whether primary judge failed to apply “legitimate forensic purpose” test – where applicant asserted impropriety of Australian officials in material put forward to Serbian courts - where applicant had no evidence of impropriety but relied only on inferences – specialty and double criminality principle - whether a “fishing” expedition - where Serbian courts satisfied prerequisites for extradition demonstrated – appeal dismissed

CRIME – Appeals – Appeal against directed acquittal – Property offences – Break, enter, and commit serious indictable offence – Forcible break – Accused a tenant of property under residential tenancy agreement but no longer an occupant – Whether prosecution required to negative legal right to enter – Acquittal quashed – Retrial ordered LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Rights and obligations of landlords and tenants – Whether Tenant’s obligation not to cause or permit damage to premises negatives right of entry CRIME – Appeals – Appeal against directed acquittal – Residual discretion to dismiss Crown appeal notwithstanding material error – Public interest – Precedential value – Reflection of total criminality – Crown not responsible for error – Discretion not exercised

ENVIRONMENTAL OFFENCES – appeal – appeal against conviction – where defendant appeals against conviction for injuring trees the subject of a Tree Preservation Order without consent contrary to s 125 of Environmental Planning and Assessment Act 1979 – whether defendant vicariously liable for actions of independent contractor and his subcontractors – assessment of nature and terms of instruction given and any qualifications to that instruction – whether trial judge failed to consider defence argument that defendant instructed contractor to comply with 10/50 Code – whether the instruction that contractor comply with 10/50 Code would operate as a qualification upon the width of general instructions amounting to an instruction not to fell trees beyond the 10/50 zone – conviction quashed – new trial ordered

TORT – Negligence – General principles – Personal injury – School PE class – Where plaintiff was involved in a ‘head knock’ with another student Defences – Civil Liability Act 2002 (NSW), ss 5I, 5k, 5L – Whether risk of harm was “obvious” – Whether the hybrid game was a “dangerous recreational activity” – Whether there was a significant risk of physical harm – Whether there was a materialisation of an obvious risk Causation – Whether breach caused damages claimed by plaintiff

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for final relief – general principles – forensic patient – factors under s 127(2) – unacceptable risk – orders

SUCCESSION – Wills, probate and administration – Caveat against grant of probate of Will – Proceedings not commenced propounding Will in solemn form – Applicants file notice of motion to have caveat cease to be in force – Notice of motion unsuccessful and orders and directions made as appear best for the just, quick and cheap determination of proceedings – Costs of notice of motion ordered to be paid by applicants/Plaintiffs

COMMERCE – restraint of trade – validity and reasonableness – legitimate interests – where restraint imposed a blanket protection from importation of goods from a subcontinent – whether blanket protection directed to preserve or maintain a personal or corporate relationship with a supplier – where restraint did not relate to any particular supplier – Restraints of Trade Act 1976 (NSW), s 4 COMMERCE – restraint of trade – validity and reasonableness – public policy – where restraint imposed a blanket protection from importation of goods from a subcontinent – whether restraint was against the public interest – where restraint prohibited respondents from competing in the market for the supply and sale of goods from a subcontinent – Restraints of Trade Act 1976 (NSW), s 4

CORPORATIONS — Winding up — Presumption of insolvency arising from unsatisfied creditor’s statutory demand — Contention that company was solvent — Where defendant relies upon amount in bank account to establish solvency — Where no evidence that amount arose other than as loan to company.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether to depart from ordinary position — Where proceedings become moot and are discontinued by leave — Where no determination on the merits — Default provision for costs under UCPR r 42.20.

CORPORATIONS — Winding up — Voidable transactions — Separate question as to solvency of company — Whether Company was insolvent during the relevant period.

EVIDENCE – Opinion evidence – Use of psychological testing by expert witness NEGLIGENCE – Damages – Economic Loss – Application of Civil Liability Act 2002 (WA) – Defences – Contributory negligence

HIGH RISK OFFENDER – Final hearing – Application for an Extended Supervision Order – Issue as to conditions – Issue as to the term of the order – No point of principle

SUCCESSION — Claim by estate to recover property — Where property of deceased transferred by deceased’s daughter by way of gift in favour of deceased’s granddaughter in exercise of power of attorney — Where no power of gift conferred on attorney — Where daughter purportedly acted pursuant to direction in letter — Whether deceased’s signature was forged SUCCESSION — Family provision — Claim by adult child — Where evidence of ill treatment of testatrix by claimant — Where evidence that claimant received substantial benefits from testatrix before death

APPEALS – appeal from primary judgment making personal costs orders against the applicant pursuant to Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) and s 99 of the Civil Procedure Act 2005 (NSW) – where applicant was the legal practitioner for the defendant in the proceedings below and made allegations of fraudulent misrepresentation and conspiracy without any proper basis – where solicitor breached his professional ethical duties in pursuing the claims APPEALS – application for leave to appeal – whether leave to appeal is required by a legal practitioner who is subject to a third party costs order, assuming that the monetary threshold under s 101(2)(r) of the Supreme Court Act 1970 (NSW) is satisfied – leave to appeal not required pursuant to s 101(2)(c) of the Supreme Court Act on the basis that the decision was not one “as to costs only” APPEALS – challenge to earlier decision of this Court on the basis that it was “plainly wrong” – where no real attempt was made to satisfy the requirements for a challenge to a decision of this Court as outlined in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 APPEALS – procedural fairness – whether applicant was denied procedural fairness on the basis that the primary judge did not consider all of the grounds and arguments advanced by the applicant – whether applicant was denied procedural fairness in that the Court treated various findings made in the substantive judgment as beyond challenge for the purposes of the costs application – where applicant’s arguments in the costs application were essentially a replication of the arguments that had been advanced and rejected by the primary judge in the substantive judgment – where no denial of procedural fairness COSTS – where primary judge imposed personal costs orders against the legal practitioner of the unsuccessful party in proceedings below – where applicant was the legal practitioner for the defendant in the proceedings below and improperly made allegations of fraudulent misrepresentation and conspiracy without any evidence to support it – where solicitors breached their professional ethical duties in pursuing the claims COSTS – whether in an application for costs orders against a legal practitioner under s 99 of the Civil Procedure Act 2005 (NSW), the Court is entitled to take account of its findings in the substantive judgment – whether a legal practitioner against whom such costs orders are sought is bound by findings in the substantive judgment, even though the legal practitioner was not formally a party to the proceedings – where in the present case, the applicant was given a full and fair opportunity to explain the basis upon which he made the relevant allegations and to rebut the statutory presumption arising under cl 6 of Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW) LEGAL PRACTITIONERS – obligations of solicitors arising pursuant to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 21

BAIL – applicant charged with offences none of which was a “show cause” offence – applicant citizen of New Zealand – aspects of Crown case strong, other aspects weak - whether unacceptable risk of applicant failing to appear – where applicant would be in custody for at least 17 months prior to trial – whether stringent conditions relating to reporting and surrender of passport would address bail concerns – conditional bail granted

CRIME — Appeals — Appeal against sentence — Sexual and other offences — Requirement to take into account pre-sentence custody – Broken periods of pre-sentence custody – Where only second period of pre-sentence custody taken into account by backdating sentence – Whether first period of pre-sentence custody taken into account in relation to all offences – Reasons did not disclose why first period of pre-sentence custody not taken into account by backdating or how that period was taken into account for all offences — Leave to appeal granted — Appeal allowed — Sentence varied

COSTS – party/party – costs orders in interlocutory proceedings – where plaintiff seeks costs of defendant’s application to amend defence – where application granted and hearing dates vacated – where not unreasonable for plaintiff to have opposed application – costs of application ordered against defendant

CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – where relief sought invokes the Court’s inherent jurisdiction in respect of breach of legal professional obligations by solicitor registered in New South Wales – no issue of principle

SUCCESSION – Probate and administration –Whether Court satisfied that a document which was handwritten, but unsigned and undated, by the deceased, purports to state the testamentary intentions of the deceased and was intended by him to form his Will – Dispensing with requirements for due execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – Question raised whether the deceased had testamentary capacity due to alcohol consumption – No evidence of temporal link between when informal document written and the alcohol consumed – Evidence, sufficient for Court to be satisfied that the deceased had testamentary capacity, that he knew and approved the contents of the informal document (which was not in dispute), and that he intended the informal document to form his Will SUCCESSION – Defendants raise allegation of an earlier will made by the deceased which was not found and the original, a copy, or even a draft, of which no one had seen – Reference to a will made by the deceased months before his death - Defendants assert that the unfound Will was removed by the father of the Plaintiff, after the deceased’s death, from the deceased’s home – Serious allegation of what may be criminal conduct under s 135 Crimes Act 1900 (NSW) made - Court not satisfied of the existence of the unfound Will or that it had been removed by the Plaintiff’s father bearing in mind the whole of the evidence and s 140 of the Evidence Act 1995 (NSW) Whether presumption of destruction of unfound Will animo revocandi rebutted - Onus on the Defendants to rebut presumption - Court satisfied that even if the unfound Will existed, the presumption of destruction by the deceased with intention to revoke that Will had not been rebutted Alternative claim by the Plaintiff that the deceased died intestate – No dispute that whole estate passes to the Plaintiff under the operation of the rules of intestacy if informal document not intended to form his Will and if the Court not satisfied that the unfound Will existed, or even if it existed, was not removed by the Plaintiff’s father

PRACTICE AND PROCEDURE – application for leave to amend pleading to join as defendants parties against which the plaintiff had previously discontinued proceedings on terms that included undertaking not to sue – whether amounts to an abuse of process – amendment to join parties refused

CIVIL PROCEDURE – misleading and deceptive conduct claim – application to amend – application to strikeout as hopeless – principles at [4], [30]-[35] – should be permitted to amend.

CONSUMER LAW – Misleading and deceptive conduct – Whether company officers made misleading statements when signing drawdown and rollover notices – Whether representations made by company officer personally or as company organs – Held company officers did not personally engage in misleading and deceptive conduct CORPORATIONS – Insolvency – Whether company insolvent – Application of test under Corporations Act 2001 (Cth) – Where company alleged not to be able to repay future debt – Where future debt not current – Application of civil standard of proof to future or hypothetical event – Where ability to compromise debt relevant to the question of insolvency – Use of hindsight – Where use of hindsight impermissible – Where hindsight used not to show what was possible or likely at some point in the past but to establish a fact at an earlier point PERSONAL PROPERTY – Assignment of choses in action – Prohibition on assignment of bare chose in action TORTS – Duty of care – Whether company officers owed a duty of care to lenders in signing drawdown and rollover notices – Whether company officers personally made representations contained in drawdown and rollover notices and owed a duty of care to lenders when making representations – Whether representations made by company officers personally or as company organs – Held company officers did not owe a duty of care – Held representations made on behalf of the company – Held unreasonable for lenders to rely on representations as representations made personally by company officers – Breach – Where claim that company officers did not turn their mind to the question whether representations in the notices were true and did not make their own inquiries – Held company officers entitled to rely on management to be told if representations in the notices could not be made – Causation – Causation not found on the facts TORTS – Duty of care – Held no reason to recognise a duty of care between sophisticated commercial entities when consequences of breach of contract are already set out in the agreements TORTS – Duty of care – Whether director owed a duty of care to lenders before instructing company officers to draw all funds from facility agreements with lenders – Held director or employee does not owe a duty of care to avoid economic loss to third party when making and communicating a decision to another employee TORTS – Duty of care – Accessorial liability – Directing or procuring breach of contract – Held director and employee not liable for directing or procuring breach of contract when director did not act personally but as an organ of the company – Directing or procuring breach of duty – Held that there is no duty in tort to take reasonable care to perform a contract TORTS – Negligence – Where claim brought under negligent misstatement and negligence as two separate causes of action – Where officer of the company found to owe the lenders a duty of care in circumstances where lender made specific enquiries and officer could reasonably be expected to know or find out relevant information – Where reliance not proved on the facts TORTS – Negligence – Whether legal advice was negligent and misleading and deceptive – Where allegation not proved DAMAGES – Quantification – Alternative methodologies – Damages calculated comparing the position in which the lenders would have been but for the defendants’ wrongful conduct – Damages calculated assuming that but for the defendants’ wrongful conduct the company would have entered into voluntary administration earlier than it did – Where counterfactual not subject of evidence – Whether plaintiffs entitled to compound interest as damages –Whether claim should be converted into Australian dollars

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 319 of the Crimes Act 1900 (NSW) – whether probably permanently unfit to practise – order removing name from roll CIVIL PROCEDURE – hearings – suppression and non-publication orders – whether necessary to ensure consistency with extant suppression order of the District Court – where name published in publicly available judgments – no basis for order

EQUITY – trusts and trustees – express trusts – construction – whether constitution of trust confers discretion on trustee to determine Distributable Income – whether trustee exercised discretion in determining the amount of Distributable Income EQUITY – subrogation – requirements – whether the GLT Indemnity is a true indemnity against loss or merely a promise to pay on a contingency – not a true indemnity against loss EQUITY – subrogation – rights of subrogated party – where subrogation is limited only to rights which diminish loss – no subrogation to right to receive Withdrawal Amount

OCCUPATIONS – Legal practitioner – Barrister – Practising without current practising certificate – Injunction to prevent legal practice – Where undertaking not to engage in legal practice breached – Legal Profession Uniform Law (NSW)

PRACTICE AND PROCEDURE – application for security for costs – where jurisdictional threshold satisfied – whether the plaintiff has a strong prima facie case on the material presently before the court – whether the court should assess strength of the plaintiff’s case in circumstances where the defendants have exercised their privilege against self-incrimination PRACTICE AND PROCEDURE – application for asset preservation order – plaintiff sought order restraining the defendants from dealing with extensive property portfolio and the net proceeds of any sale – where good arguable case of fraud against some defendants, but no dealings with property calculated to frustrate the enforcement of any judgment in the two years since the commencement of the proceedings – where proposed form of asset preservation order not limited to assets up to the value of the plaintiff’s claim PRACTICE AND PROCEDURE – application to set aside a notice to produce (in part) and certain subpoenas – no issue of principle PRACTICE AND PROCEDURE – application for leave to amend Summons and Commercial List Statement to plead additional claims relating to certain transfers of funds allegedly made or procured by the first and second defendant from the plaintiff to an offshore third party – whether allegations of fraud are adequately pleaded and particularised

CRIMINAL LAW – application for referral to Court of Criminal Appeal to be dealt with as sentence appeal – Part 7 of Crimes (Appeal and Review) Act 2001 (NSW) – conspiring to import commercial quantity of heroin – whether doubt or question as to mitigating circumstance – approach on sentence to utilitarian value of guilty plea – whether Xiao v R error – order for referral made

CIVIL PROCEDURE - notices to produce - before hearing - notices issued pursuant to UCPR r 21.10 and r 34.1 - whether notices should be set aside or be complied with - proceedings alleging breach of confidential information from a share sale agreement to purchase real estate agency - where first defendant, formerly a director of second plaintiff, remained working in real estate agency after completion of sale and is alleged to have downloaded confidential information belonging to plaintiffs’ business - whether information used by defendants in rival agency - where “on the cards” that documents in r 34.1 notice will materially assist plaintiffs’ case - recipient of notice ordered to produce documents -where documents in notice issued under r 21.10 do not consist of specific documents that are clearly identified - where notice should be set aside

COSTS – Security for costs – On appeal – Statutory power under Corporations Act 2001 (Cth) s 1335 – Relevant factors – Where credible evidence that appellant may be unable to pay adverse costs order if unsuccessful – Where appellant did not appear to oppose security – Reductions to excessive proposed quantum – Security for costs ordered

JUDGMENTS AND ORDERS – Court of Appeal – Stay of primary judgment – Appeal not unarguable – Appeal likely to be rendered nugatory without stay – Where judgment for portion of funds received from insurance payment – Disposition of funds unexplained by applicant – Indicia that appellant may be insolvent – Sums transferred from corporate appellant to director – Sums potentially recoverable by liquidator – Prejudice to respondents if potential appointment of liquidator deferred – Prejudice potentially mitigable by fixed and floating charge over assets of appellant and director – No such security offered – Stay refused COSTS – Security for costs – On appeal – Statutory power under Corporations Act 2001 (Cth), s 1335 – Relevant factors – Where credible evidence that appellant may be unable to pay adverse costs order if unsuccessful – Where director/sole shareholder declined to expose themselves to adverse costs order – Reductions to excessive proposed quantum – Security for costs ordered APPEALS – Procedure – Time limits – Extension of time to appeal – Where appeal filed one day out of time – Extension not opposed – No prejudice – Extension granted

CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Third referral – Where Bar Association has indicated that no further assistance will be provided without additional referral – No conditions for ceasing to provide ongoing assistance satisfied – Bar Association guidelines not relevant – Further referral made but ongoing effect of previous referral emphasised JUDGMENTS AND ORDERS – Court of Appeal – Extension of stay of execution of writ for possession – Extension not opposed – Extension granted and orders made with view to progressing matter to hearing CIVIL PROCEDURE – Jurisdiction – Transfer of Notice of Motion from Supreme Court to Court of Appeal

CIVIL PROCEDURE – representative actions – correspondence with group members – no point of principle

COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – whether circumstances justify departure from default position in r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) – no order as to costs

CIVIL PROCEDURE – interim preservation – freezing orders – where first defendant awaiting trial for fraud-related offences – where freezing order over first defendant’s bank account permits payment of defendants’ reasonable living expenses – whether in the interests of justice to grant second defendant’s application for payment out of first defendant’s bank account for past rental expenses – payment refused where competing claims to funds

CIVIL PROCEDURE – application by judgment debtor to stay enforcement of judgments – where judgment debtor contends that judgment creditor no longer has any outstanding liability to mortgagee bank as a result of four deeds of settlement – judgment in favour of judgment creditor independent of whether it has any outstanding liability to the bank – stay refused CIVIL PROCEDURE – application to amend statement of claim – plaintiff has no interest in the substantive rights and obligations as between the parties against whom orders are sought – abuse of process – proceedings dismissed

CONTRACTS – construction of contracts for the design and construction of a water treatment facility and the provision of services in relation to that facility – alleged breaches of contracts – prevention principle – scope of assistance required to be provided by services provider to principal exercising step-in right following “Major Service Failure” PRACTICE AND PROCEDURE – plaintiff purported to withdraw certain claims for relief after judgment reserved following four day hearing – defendant did not consent to withdrawal or discontinuance of those claims – leave required to discontinue claims – unfairness to defendant if claim discontinued