Cases and authorities

PROCEDURE – Parties – dispute as to control of incorporated Association – Association should be passive defendant, not active plaintiff – ALTERNATIVE DISPUTE RESOLUTION – mediation – order for referral

SUCCESSION [84]- Wills Probate and Administration- Probate and Letters of Administration- To whom granted- Deceased died intestate, unmarried and without children- Deceased's uncle and aunts next of kin- Uncle seeks grant of administration- Opposed by four aunts who seek appointment of Public Trustee as administrator- Held, right of administration is in aunts notwithstanding that uncle applied first, theirs being the greater interest- Grant made to Public Trustee.

Separate question orders - Access to documents

PROCEDURE – affidavit evidence – served late – no opportunity to test. - PROCEDURE – Adjournment – to permit opposing party to investigate late affidavit so that it might be read – where issue to which affidavit relates may not be relevant or decisive.

PARTNERSHIP – Dissolution and winding up – rights of parties in a partnership property following dissolution – whether co-owners – whether partnership property amenable to division under Conveyancing Act s 36A

PROCEDURE - Expedition

CORPORATIONS – Application to set aside statutory demand – Whether claims made in statutory demand barred by definition of “claim” and “fixed date” in deed of company arrangement – Circumstances giving rise to claim present before “fixed date” – Statutory demand set aside

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealing - Application to extend caveat over prospective lots in a proposed subdivision - Whether can have a proprietary interest in land yet to be formed - Whether caveat saved by disregarding any failure to comply under the Real Property Act 1900, s 74L - Whether that provision limited to defects in form and not applicable to defects of substance

PROCEDURE – Miscellaneous procedural matters – alleged undertaking by counsel to court – liberty to apply

EVIDENCE [234]- Corroboration- Claim against a deceased estate- Corroboration not required, but cases usually fail without it. SUCCESSION [321]- Family provision application- Application by plaintiff adult son- Testatrix leaves estate to her six children equally- Plaintiff claims he cared for testatrix before her death and is destitute- Seeks extra benefaction- Other children not in great need of provision- Testatrix's provision for plaintiff inadequate in the circumstances- Plaintiff should receive half estate, however due to his causing the estate unncessary costs this means only an additional legacy of $20,000.

MENTAL HEALTH [16]- Legal proceedings by or against a protected person- Trustee of protected person's estate seeks power to initiate or defend litigation on their behalf- Potential for litigation to be very costly for estate- Power granted but Court directs that a "Protector" be appointed as additional safeguard against dissipation of estate.

PROCEDURE – Miscellaneous procedural matters – expedition – where sought to gain priority over matter regularly initiated in an industry tribunal.

COSTS – Security for costs – top up security

CONTRACTS – contractual intent – construction – joint venture – where prospective joint venturers execute “side letter” – whether parties intended to produce binding final agreement or merely an interim measure – where side letter refers to presentation to boards of directors for “execution” – whether intention that boards merely execute as opposed to approve contract

Will - family law agreement to leave specified property by will to partner - insolvent estate - whether property subject to trust in favour of partner.

PROCEDURE [99]- Admissions- Formal admissions- Where amendment of defence necessitates withdrawal of an admission- No absolute right to withdraw- Leave to withdraw generally granted where an admission made in error unless the cause of undue prejudice- Deliberately erroneous admissions distinguished from admissions made in confusion.

PRACTICE AND PROCEDURE – Application for dismissal of plaintiff’s claim on grounds of protracted non-compliance with orders of Court for bringing matter to trial – Self-executing order made dismissing the proceedings if orders of Court not complied with by specified date

SUCCESSION [321]- Family provision application- Application by plaintiff adult son- Plaintiff lived with testator for 7 months shortly before his death- Plaintiff had little prior contact with testator- Will grants plaintiff $1,000- Estate valued at $204,000- Testator's provision for plaintiff inadequate in all the circumstances- Specific legacy of testator's car and pecuniary legacy of $66,000 appropriate with no order for plaintiff's costs.

PROCEDURE - Preservation of Property - Search order of Anton Piller type refused on ex parte application - Application repeated on notice - No submission by respondents with respect to missing computer software systems used in business and by head office in USA - Whether merely commercial dispute not warranting extreme measures - First defendant in entire control of assets of Australian business

Evidence - Expert evidence - Evidence Act 1995, s.79 - Admissibility - Need to identify assumptions - transparency of reasoning processes

CONTRACT – General Contractual Principles – Construction and Interpretation – where sons contract for transfer by one to other of fishing licences in return for transfer by other to first of interest as co-owner with first of real property - whether intention to convey legal title to licences only or beneficial interest – Discharge - whether agreement terminated - whether agreement abandoned - whether specific performance should be decreed - whether damages should be awarded. - EQUITY – Equitable estates and interests - fishing boat and fishing licences – where father and sons informally agree to participate together in fishing venture – where venture subsequently carried on under structure of partnership and then company – where boat in name of sons and licences variously in name of one or both sons – where father contributes funds and draws on business income – whether father or company retains beneficial interest. - EQUITY – Equitable remedies – Specific performance – defences to specific performance - impossibility – where defendant not beneficially entitled to subject matter of contract - where enforcement would require defendant to act inconsistently with prior equitable obligations

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Application to extend caveat lodged by former registered proprietor after mortgagee sale by auction - Allegation that mortgagee over-valued land and mortgage should be set aside or revised down to 80% of correct value - No estate or interest in the land

Denial of natural justice - non-appearance - medical certificate forwarded to Tribunal - no appeal from refusal of rehearing

Child protection - occupations dealing with children - exclusion of persons with convictions for sexual offences - what facts constitute the offence - procedure in ADT - nature of jurisdiction

NEGLIGENCE – Contributory negligence – plaintiff truck driver aged 69 years at the time of accident – unloading of containers from truck – plaintiff’s leg injured by forklift – amputation – damages – whether plaintiff guilty of contributory negligence

CORPORATIONS – Applications to set aside statutory demand – plaintiffs failed to meet low threshold for establishing genuine dispute – Applications dismissed

CORPORATIONS – Ex parte application for directions under s 511 of the Corporations Act 2001 (Cth) that liquidator justified in entering into pooling arrangements – Form of notice to creditors considered

EVIDENCE – rule in Browne v Dunn – proceedings on affidavit – where contradictory affidavit served - EVIDENCE – admissibility – relevance – provisional relevance

CONTRACTS – Conditional contracts – accord and satisfaction – whether formation or performance of contract conditional – Repudiation – Abandonment – Remedies – Specific Performance. - EQUITY – Equitable remedies – specific performance – whether purchaser ready, willing and able to complete – when readiness must be established – specific performance with compensation to defendant - where plaintiff has been in default of non-essential time condition – compensation allowed to vendor.

CORPORATIONS [1045]- Articles of Association- Construction- As to directors- Articles provide that certain directors of first defendant must be sole owners of vessels appearing on club's Register of Vessels- Register only records details of vessels moored "on- site"- First plaintiff owns boat moored "off-site"- Owner not eligible for election as director- Second plaintiff not eligible as he is not "sole" owner of his vessel, it being owned by a corporation under his control- Defendants correct to refuse nominations in each case- No basis for injunction. EQUITY [334]- Equitable remedies- Injunctions- Interlocutory injunctions- Point of construction not dependent on facts- Point decided on application- Injunction refused.

CORPORATIONS - voluntary administration - second meeting of creditors - administrators wish to see meeting adjourned beyond sixty day deadline arising under s.439B(2) - whether s.447A may be used to extend deadline - whether such order may also deal with identical deadline arising under regulation 5.6.18(2)

Evidence - client legal privilege - whether draft expert report privileged

PROCEDURE [555]- Costs- Proceedings for an injunction to restrain the defendant from accepting the recommendation that the plaintiff be removed from the list of accredited ministers- Found that there had been no denial of natural justice but that the appeal was still on foot- Defendant challenged the prima facie view that each party should bear their own costs- Conduct of plaintiff has substantially brought about the litigation- Plaintiff failed on his preliminary submission- Defendant made an offer of compromise that was more favourable to the plaintiff than the court's decision- Plaintiff to pay defendant's costs of the proceedings after the date of the offer.

REAL PROPERTY – Torrens Title – Caveats – unsecured debt is not caveatable interest.

SUCCESSION [310]- Family provision and maintenance- Failure by testatrix to make sufficient provision for spouse- Testatrix left husband right to reside in principal place of residence- Husband moved into retirement village- Insufficient provision under will- Two daughters provided for under will- One daughter on disability pension- Evidence of testatrix intending to put house in joint names with husband- Whether Crisp order should be made- Unco-operative parties- Provision of fixed amount ordered.

PROCEDURE – Supreme Court procedure – Miscellaneous procedural matters – Cross-claims – whether cross-claim can be filed after judgment on claims – UCPR, rr 9.1, 9.10

SUCCESSION [311]- Testator's family provision and maintenance- Testatrix's will entitled oldest two children to live in testatrix's house- Although plaintiff, as the third child, left with insufficient provision estate too small to accommodate her as house would have to be sold to satisfy claim- Sale of house would defeat testatrix's intention to provide a home for at least two of her children.

SUCCESSION [308]- Duty of testator to make sufficient provision for son/plaintiff- Suggestion of mutual will leaving property to plaintiff- Alteration of testator's last will and assets- No competing claims- Plaintiff to receive one half of estate in lieu of provision in will.

INSURANCE - whether insurer should be joined to proceedings pursuant to s 6, Law Reform (Miscellaneous Provisions) Act 1946 - whether s 6 applies to claims made and notified policy where action accrued prior to inception of policy - whether point should be decided on application for leave to join or reserved to trial

CONTRACT – Remedies – Specific Performance – Agreement to give mortgage – where secured moneys already advanced and omission of borrower to execute mortgage overlooked – Order that Registrar execute mortgage on behalf of mortgagor – preconditions to order – where request for execution probably futile.

EVIDENCE - Admissiibility and Relevancy - Declaration sought that 3rd defendant as agent for 1st and 3rd to 32nd defendants settled District Court defamation actions - Affidavit of plaintiff contained details of conversations between plaintiff and 3rd defendant - Only evidence of actual or ostensible authority of 3rd defendant were statements by him and a signed document authorising him as representative for the purposes of one District Court proceeding only - Whether evidence admissible against 1st and 2nd and 4th to 32nd defendants - Alternative plea for declaration that 3rd defendant agreed to pay the plaintiff and agreed to indemnify for any damages awarded in District Court proceedings - Whether evidence admissible against 3rd defendant

COMMON LAW - STATUTORY CONSTRUCTION - Road Transport (Driver Licensing) Act 1998 - whether suspension of driver's licence under s 33(1) has the effect that demerit points incurred pursuant to s 15 for the relevant offence are "taken to be deleted" by s 16(7) - whether such demerit points available to found subsequent suspension under s 16

BUILDING AND CONSTRUCTION - where adjudicator without notice to the parties reinvestigates matters agreed upon by the parties and determines value inconsistently with that agreement - where adjudicator without notice to the parties determines value of prior work inconsistently with determination of prior adjudicator - whether denial of natural justice.

PROCEDURE – under (NSW) Civil Procedure Act 2005 – Adjournment – application by defendants to vacate trial where earlier trial also vacated due to defendants’ procedural defaults – relevant considerations – balance of injustice where serious procedural delinquencies by defendants but no material prejudice to plaintiffs from adjournment.

CORPORATIONS - provisional liquidator - power of court to extend by later order the powers conferred on provisional liquidator by order of appointment

EVIDENCE [96]- Admissions- Without prejudice statements- Correspondence abandoning alleged settlement agreement- Dispute as to whether agreement to settle was abandoned- Without evidence court would be likely to be misled- Evidence admitted- Evidence Act 1995, section 131(2)(f) and (g).

REAL PROPERTY - MORTGAGES - DEFAULT - SUBSEQUENT PAYMENT OF SUM EQUIVALENT TO ORIGINAL CAPITAL LOAN - RECENT BANKRUPTCY OF DEFENDANT - APPARENT EXCESS OF VALUE OF PROPERTIES OVER TOTAL INDEBTEDNESS - PLAINTIFF ENTITLED TO JUDGMENT - STAY OF ISSUE OF WRIT OF POSSESSION

EVIDENCE – Documents – Subpoenas and Notices to Produce – whether Notice to Produce premature when pleadings have been ordered but not yet filed.