Cases and authorities

PROCEDURE – Discovery – third party discovery – application by respondent third party for summary dismissal, striking out of pleadings and further and better particulars – whether third party has standing to seek such relief – held it does not

COSTS – where plaintiff succeeds on all issues against first defendant but obtains no relief against second defendant whose joinder was unnecessary – where defendants make offer which plaintiff bettered only slightly.

PROCEDURE [490]- Judgments and orders- Amending, varying and setting aside following publication of reasons but before entry of orders- Plaintiff seeks adjustment of costs order and of one aspect of accounting between parties- Appropriate for trial judge to adjust orders bearing in mind ss 56 and 60 of Civil Procedure Act 2005 and small amount of money involved.

ASSOCIATIONS AND CLUBS - Expulsion, Suspension and Disqualification - Committee of Association refused to renew membership of plaintiffs - Plaintiff sought postponement of annual general meeting on opposed ground that notice of meeting did not comply with constitution - Officers of Association gave undertakings to the Court that plaintiffs could attend annual general meeting and raise before the membership present at the meeting whether the committee was justified in refusing the renewal of their membership

CORPORATIONS - Winding up - Leave to proceed - Specific performance of contracts for sale of land sought against company in liquidation as vendor - Whether equitable interests created that bind the liquidator - Applicable principles

Practice and Procedure - Application for leave to amend - S440 D Corporations Act application for leave to proceed against company in administration - Principles which inform administration of a companies affairs

Section 53(3)(a) appeal – plaintiff also seeking prerogative relief – aggravated indecent assault – committal stage of proceedings – power of magistrate to direct attendance at committal – inconsistencies in complainant’s evidence – complainant not directed by magistrate to attend – whether decision was correct – whether cross-examination of the complainant was likely to reveal further inconsistencies

EVIDENCE [55]- Expert evidence- When to be permitted- Handwriting evidence not ordinarily allowed when alleged writer of disputed material available- Uniform Civil Prodecure Rules 31.19

PROCEDURE - Costs - Indemnity costs - "Walk away" offer - Whether genuine offer of compromise - Unreasonableness to be determined, motionally, when offer made - No evidence served - Whether strike-out application would have succeeded - Evidence peculiarly within the knowledge of plaintiff

EVIDENCE – Opinion – expert – quantity surveyor – Makita v Sprowles – whether rationale sufficiently disclosed – EVIDENCE – Opinion – expert – valuation – Makita v Sprowles – arguable errors in reasoning are not failure to explain reasoning – report does not address relevant issues because assumes incorrect approach to measure of damages – EVIDENCE – opinion – expert – noise – where apparently subjective opinion is defined by terms elsewhere in report

MENTAL HEALTH - Guardians, Committees, Administrators, Managers and Receivers - Application by second defendant before the Guardianship Tribunal for appointment of a financial manager of first defendant - Tribunal also to consider referring the matter to the Supreme Court - Plaintiff, son of first defendant, sought stay of the proceedings before the Tribunal - Lost confidence in Tribunal - Alleged second defendant using proceedings for forensic advantage in other proceedings in the Supreme Court - Whether the seeking of a declaration that the first defendant was incapable of managing her affairs ousted the jurisdiction of the Tribunal under the Guardianship Act 1987, s 25K - Common ground that first defendant incapable of managing her affairs - Whether a real issue in the Supreme Court was required to oust the jurisdiction

WORDS & PHRASES- "Dispose of any interest in the property"- Mortgaging a property under the Torrens system is such a disposition.

LIQUOR & GAMING – Gaming machines – poker machine entitlements – where club had authorisations for poker machines prior to freeze and obtained additional hardship approvals during freeze – allocation of poker machine entitlements in respect of the hardship machines – textual indication – extraneous material – provisions incapable of resolution – dominant intention

ALTERNATIVE DISPUTE RESOLUTION – mediation – compulsory referral to mediation – where one party opposes – whether order should be made – need for “level playing field” for mediation

PROCEDURE - Pleadings and Particulars - Whether an allegation of intention to take a separate commission constituting a breach of fiduciary duty with no other relationship to the claim for damages should be struck out - Whether the particularisation of a fiduciary duty as including a proscriptive duty of disclosure should be struck out

Practice and Procedure - Commercial List - Vacation of final hearing dates - Costs - Indemnity costs

PROCEDURE - Interpleader relief - Whether on payment of a fund into Court the plaintiff should have an indemnity agaisnt possible income tax penalties and interest for failure of first defendant administrator of the estate of a deceased director of the second defendant trustee of a superannuation fund refusing to allow payment to accountants to enable four years' over due income tax returns of the second defendant to be lodged - Whether the plaintiff should have costs on an indemnity basis

CORPORATIONS – Application under s 459G of the Corporations Act 2001 (Cth) to set aside statutory demand – Demand relates to summary judgment obtained in Local Court pursuant to s 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) which precluded applicant from bringing cross-claim or raising defence to claim – Applicant has appealed judgment and disputes debt – Whether debt is res judicata precluding genuine dispute as to existence of debt where applicant prevented from putting cross-claim or defence and s 32 of the Act allows for restitution following judgment – Whether “some other reason why the demand should be set aside” under s 459J(1)(b) of the Corporations Act given the circumstances – Whether money should be paid into Court under s 459M of the Corporations Act as pre-condition to setting aside demand – Statutory demand set aside without imposition of condition that money be paid into Court

CORPORATIONS - statutory demand - judgment debt - reasonable and arguable appeal on foot - condition imposed that amount of debt be paid into Court - "some other reason why the demand should be set aside" under s 459J(1)(b) Corporations Act 2001(Cth)

EVIDENCE – expert evidence – literature published in non-peer reviewed journals – admissibility as evidence of knowledge on which opinion based.

Application to refuse leave to re-open interlocutory order

EVIDENCE - Admissibility and Relevancy - Whether a defendant bound by solicitor's letters - Whether hearsay admissible as admissions with authority under the Evidence Act 1995, s 87(1)

CORPORATIONS – Application under s 459P read with s 459A of the Corporations Act 2001 (Cth) (“the Act”) for the winding up of two companies following non-compliance with statutory demands – Opposed on grounds that statutory demands relied upon were served before validity of earlier demands had been tested, on basis that companies were not insolvent and that proceedings were abuse of process – Alleged forgery of jurats on affidavits – No leave sought under s 459S of the Act to rely on any grounds other than solvency – No basis for such leave in any event – Presumption of insolvency not rebutted – Actually insolvent – Abuse of process not made out – Process of the Court not being used for foreign purpose – Companies wound up

PROCEDURE - Miscellanous Procedural Matters - Amendments - Order for possession - Mesne profits - Indemnity costs - No principles involved

CONTRACT - Building contract - Australian Standard AS4300 1995 - Construction of certificate provisions and provisions concerning security provided by builder for its obligations

Indemnity costs

CORPORATIONS – Internal management – shareholders – transfer of shares – discretion to decline registration – where directors equally divided – register rectification – where discretion to decline registration not affirmatively exercised – where transfer formally defective – transfer nonetheless effective to vest beneficial interest – whether order can be made conditional upon remedying defects – COSTS – formal defects capable of cure notified only in submissions at hearing.

[BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999] - Whether determination issued by adjudicator void - Whether jurisdictional error due to absence of construction contract between plaintiff and first defendant.

REAL PROPERTY – Easements – Right of carriageway – right to fence – where dominant owner proposes to change access points – obligation to close existing access with fence consistent with existing fencing

PROCEDURE – separate determination of questions – expedited hearing – matter having great urgency – impossible to resolve all issues finally – possible to resolve issue that may be decisive – other issues deferred – PLEADING – pleading must state effect of document, not incorporate by reference – PROCEDURE – production of documents – confidentiality – private confidentiality undertaking does not excuse compliance with notice to produce given force by rule of Court – PROCEDURE – Notice to produce – unreasonably burdensome in extent and time

EQUITY – Declaration that adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) void – Moneys paid into Court pending proceedings – Whether declaration should be made conditional upon part of the moneys in Court being paid out to unsuccessful defendant

CONTRACT - DEBT - NO APPEARANCE OF DEFENDANT TO SUBSTANTIATE PLEADING - NO SPECIAL POINT OF PRINCIPLE

COSTS – where each party has measure of success – where plaintiff fails on major issue but succeeds in minor way on argument not advanced by him – where on analysis of issues costs entitlements of parties are approximately evenly balanced

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Final relief by way of leave to lodge a further caveat - Whether undertaking as to damages should be made - PROCEDURE - Costs - Whether reserved costs of rejected application to extend the caveat should be paid by successful plaintiffs

Trusts and trustees. Intestate estate. Administrator fails to administer estate for almost forty years. Obligation of administrator to ascertain identity of persons entitled upon intestacy and to distribute estate to those persons. Failure of administrator to ascertain indentity of such persons, by way of next of kin inquiry or otherwise. Assets of estate transferred to Treasury, which seems now unable to locate those funds. Claim by a person entitled to share in intestate estate. Whether Plaintiff is entitled to claim on behalf of other persons so entitled or only on behalf of himself. Application by Plaintiff for leave to amend summons. Application by administrator for dismissal of proceedings. Administrator not entitled to recoup from estate its costs in respect to either application.

PROCEDURE – Discovery of documents – Notice to Produce for inspection – distinction from notice to produce to court – requirement for “specific document clearly identified” - relevance

PROCEDURE - Costs - Plaintiff successful in revocation of probate to defendant but failed in two of five issues raised to support application - Whether costs should follow the event - Defendant maintained that he was owed a debt by the estate and he would admit the liability - Based on conversation with deceased that she would transfer a 50% interest in property to him when he paid 50% of purchase price which he did not - Whether impropriety - Whether defendant should have no recourse to the estate for his costs - Whether litigation caused by deceased

Succession. Family Provision. Costs. Proportionality. Capping of costs.

PROCEDURE – Expert evidence – expert evidence list – where proposed expert evidence does not relate to any real issue in the proceeding

CORPORATIONS – Application under s 459G of the Corporations Act 2001 (Cth) to set aside statutory demand on grounds of genuine dispute about existence of debt and offsetting claim for unliquidated damages – Evidentiary material failed to meet low threshold with respect to both bases of claim – Application dismissed

INJUNCTIONS – interlocutory injunction – varying and setting aside – where defendant shows that undertaking as to damages is worthless and such undertaking was material consideration on balance of convenience when injunction granted. - SECURITY FOR COSTS – corporate impecuniosity – discretionary considerations – delay.

JUDGMENTS - Administrative Law - Particular Tribunals or bodies - Injunction sought to restrain the determination of an adjudication application under the Building and Construction Industry Security of Payment Act 1999 - Whether expert reports in aid of an action against a third party insurer for defects in construction fall within the definition of "construction work" in s 5(1) or "related goods or services" in s 6(1) - Whether the jurisdiction law entitlement question should be decided by the Court

CONTRACT – Construction of clause in insurance contract

PROCEDURE - Court's opinion sought under the Trustee Act 1925, s 63 - Letters of administration issued to plaintiff on death of deceased intestate - Father of deceased commenced District Court proceedings on 11 April 2007 alleging an oral loan payable on demand made on 9 April 1997 and a further oral loan made in February 2002 - In each case the moneys were paid to purchase property of the first of which the deceased was the sole registered proprietor in the second of which the deceased held a two tenth interest the other purchasers being the father and the brother of the deceased - Whether cause of action for first loan accrued on 9 April 1997 and action statute barred - Whether the presumption of advancement applied to the second loan

ESTOPPEL [29]- Estoppel by convention- Option to purchase granted to lessee- Option not actually duly exercised- Lessor's solicitor acknowledges receipt of lessee's exercise of option- Detrimental reliance on lessor's conduct not proven- No operative estoppel. LANDLORD & TENANT [57]- Options and agreements to purchase- Time matters- Lessee required to give notice of intention to exercise option and provide valuation- Not necessary for valuation to accompany notice of exercise, but valuation must be provided within reasonably short time of giving notice. LANDLORD & TENANT [60]- Options and agreements to purchase- Construction of particular agreements- Option that lessee may "purachase" freehold during option term- Lessee must at least enter into purchase contract- Not done- Option not validly exercised.

Construction of agreement - no matter of principle.

Leave to appeal under s 208M Legal Profession Act 1987

SUCCESSION - Wills, Probate and Administration - Probate and Letters of Administration - Probate suit for lost will with opposing suit for administration on intestacy heard together - Declaration as to paternity of two children in aid of probate suit - Application after evidence and in course of counsel's final address to vary declaration to include a third child who had minimum involvement in either proceeding - Absence of prejudice if application refused - Declaration irrelevant to probate suit and if administration suit successful, third child could claim and, if dissatisfied administratrix’s decision, could appeal to the court

LANDLORD & TENANT [51]- Rent- Rent review clauses- Reference to valuer- Valuer says valuation made on basis of his own experience after speaking with colleagues- Held this sufficient detail of reasons, no requirement to include particulars of persons consulted- Valuation complies with contract.