Cases and authorities

PRACTICE AND PROCEDURE – non-publication order to protect identity of informant and associated information – order made for closure of the court for informant’s evidence and other disclosures of sensitive information – orders not opposed – orders made as sought

CLIENT LEGAL PRIVILEGE – claimed by Seqwest in context of post-inquiry review where litigation anticipated – documents sent to Allens for dominant purpose of obtaining legal advice to advance client’s position CLIENT LEGAL PRIVILEGE – claimed by employee of Seqwest who also had right to respond to draft review report – drafts send to himself by email created for dominant purpose of obtaining legal advice

CIVIL PROCEDURE – notices to produce – before hearing - costs of compliance – whether parties had attempted but failed to agree on amount of costs – r 42.33 UCPR – voluminous numbers of documents – insistence by party issuing notice on hard copies of documents – offer by producing party to provide soft copy

CIVIL PROCEDURE – service – substituted service – whether document cannot practicably be served CIVIL PROCEDURE – registrars – review of registrar’s decision

PRACTICE AND PROCEDURE – Appeal from Local Court – Where plaintiff charged with possession of prohibited drugs and elected to have the proceedings dealt with in her absence – Where plaintiff filed a written notice of pleading setting out the circumstances of the offending and annexing character references – Where proceedings dealt with ex-parte and fines imposed – No reference to testimonial material relied upon by the plaintiff – No indication of how or why the decision was reached that the plaintiff should be convicted and fined – Obligation to provide proper reasons extends to reasons for imposing sentence – Reasons inadequate – Error conceded by Director of Public Prosecutions – Appeal allowed – Matter remitted to Local Court

DEFAMATION – interlocutory steps – application for second round of discovery – where plaintiff suing on many publications and many imputations – extensive truth defence

CRIMINAL LAW – sentence – manslaughter by negligent homicide – plea of guilty – discount for utilitarian value of plea – finding of special circumstances – non-exculpatory duress.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders approving proposed schemes of arrangement – whether scheme is fair and reasonable so that an intelligent and honest man or woman who was a member of the relevant class, properly informed and acting alone, might approve it – where matter emerged after securityholders’ meeting which securityholders did not have opportunity to take into account – whether that matter was an important supervening event that materially altered the scheme.

TRUSTS – Application for judicial advice as to availability of set-off of debts under Corporations Act 2001 (Cth) ss 479(3) and 511.

CONTRACT – breach - solicitor’s retainer – failure to pursue proceedings against third party – loss of commercial opportunity of recovery – proceedings later successful – no recovery due to third party’s bankruptcy – whether solicitor’s breach caused loss of valuable opportunity – whether plaintiff entitled to damages – assessing damages for loss of valuable opportunity CONTRACTS – breach of contract – whether elements of cause of action for breach of contract modified by Civil Liability Act 2002 (NSW) s 5D, s 5E WORDS AND PHRASES – “harm” – Civil Liability Act 2002 (NSW), s 5

COURTS - jurisdiction - Land and Environment Court - whether Class 4 of jurisdiction of Land and Environment Court exclusive to that Court - whether Supreme Court had jurisdiction to give injunctive relief for apprehended breach of Local Government Act 1993 (NSW) EQUITY - injunctions - interim and interlocutory injunctions - appropriateness of ex parte application - form of order - onus upon moving party to renew interim order obtained ex parte LOCAL GOVERNMENT - power to suspend Council - Local Government Act 1993 (NSW), ss 438I and 438K - power to suspend required Minister to reasonably believe that appointment of interim administrator necessary to restore proper or effective functioning of council - Minister notified Council of intention to appoint administrator and invited submissions - whether necessary, at time notifying of intention to appoint administrator, to hold belief that appointment was necessary to restore proper or effective functioning of council - whether factual error in Minister’s notice gave rise to serious question to be tried that exercise of power would be vitiated

EASEMENTS – proposed construction of an elevated driveway to provide vehicular access to a lot - driveway to be built partly over land owned by the lot owner but subject to easements of carriageway and partly on land over which the lot owner has an easement of carriageway – whether the primary Judge erred in requiring the parties affected by the proposal to consent to the lot owner’s development application – whether the proposal unreasonably interfered with the easements of carriageway held by the dominant owners – whether the proposal unreasonably interfered with the rights of the owner of the land subject to the lot owner’s easement PARTIES – whether other lot owners affected by the proposed driveway should have been joined as parties

CONTRACT – void or ineffective contract – illusory consideration – uncertainty – shareholders’ agreement provided for funding requests to be made to 50% shareholder which was obliged to provide interest-free loans – loans could be recalled for any reason lender reasonably thought fit - whether promise to provide funding illusory because funding request required board unanimity and director who controlled lender could not be compelled to participate in funding request – whether director’s discretion unfettered – whether discretion on part of director, and lender’s entitlement to early repayment rendered promise uncertain – contract upheld and appeal dismissed

PRACTICE AND PROCEDURE – application to exercise liberty to apply pursuant to previous order made – where basis to exercise the liberty to apply has not been established – whether liberty to apply is properly invoked.

PRACTICE AND PROCEDURE – power to set aside judgment given in absence of party –judgment entered pursuant to terms of consent orders – consent orders provided for judgment to be entered for the amount of the plaintiffs’ claim upon default in the making of payments – whether provision a penalty – whether there was an implied acknowledgment of existing debt – judgment set aside

SUCCESSION – Wills, probate and administration – The making of a will – Court authorisation of a codicil – Testator without capacity – Uncertainty in existing testamentary instruments – Succession Act section 22 – Principles for consideration – Authorisation granted

CIVIL PROCEDURE – hearings – adjournments – summary judgment application – defence disclosing no defence to the claim – plea of the general issue – repeated failure to file amended defence – no reasonable explanation for delay in filing amended defence – adjournment refused – summary judgment ordered

APPEAL – contract – leave to appeal – construction of a contract is a question of law – whether a term of the contract was a penalty – relevant provision operates on breach – acceleration principle – whether a debt was owing at the time the contract was entered into – authority in O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 – no relevant distinction recent matter – businesslike interpretation of a contract – no express provision that an immediate debt was owed by the plaintiff to the defendant – construction of contract as a whole – notion of total fee – post execution requirements – clause found not to be a genuine pre-estimate of costs – clause found to be a penalty and therefore unenforceable – nature of services provided – no option for payment in full – no provision for early termination – impermissible to examine post-contract conduct for the purposes of construing a contract –decree for specific performance unlikely to be ordered – clause in the contract found to be a penalty – inconsistent with realistic commercial reading that a debt was immediately due – burden arises irrespective of nature of breach or service offered – provision unenforceable – appeal allowed

PRACTICE AND PROCEDURE – application by defendants for summary dismissal of proceedings or striking out of plaintiffs’ pleadings – where defendants entered into and were subsequently discharged from personal insolvency agreements under Pt X of the Bankruptcy Act 1966 (Cth) – whether defendants released from all provable debts under s 82 of the Bankruptcy Act – s 230 of the Bankruptcy Act – where the fraud exception to the release from provable debts pleaded by the plaintiffs by way of reply – meaning of fraud in s 153 (2)(b) of the Bankruptcy Act – whether fraud sufficiently pleaded and particularised in plaintiffs’ reply – whether accessorial liability claims sufficiently pleaded and particularised – whether leave to replead should be granted PRACTICE AND PROCEDURE – jurisdiction – cross-vesting – transfer of proceedings – whether proceedings involve a “special federal matter” – s 3 (1)(e) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – whether proceedings fall within the exclusive jurisdiction of the Federal Court under s 27 of the Bankruptcy Act – whether Supreme Court required to transfer the proceeding to the Federal Court – s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

CORPORATIONS – oppression – application for an order for the purchase of shares by a member of a company under s 233(1)(d) of the Corporations Act 2001 (Cth) – where both parties have engaged in oppressive conduct – whether to grant order for buy-out of one party’s share by the other. CORPORATIONS – winding up – application to wind up company on just and equitable ground under s 461(1)(k) of the Corporations Act – where breakdown of relations and loss of confidence between company's members – whether company should be wound up.

BUILDING AND CONSTRUCTION – adoption of referee’s report – discretion to adopt to be exercised judicially and with regard to the purpose for which discretion to refer is given – where report is factually thorough and reaches conclusions open on the evidence – where most errors complained of involve an attempt to reargue on the merits – exception regarding conclusions on delay and variations where there was a denial of natural justice – referee’s report adopted in whole with the exception of conclusions regarding delay and variations. CONTRACT – interpretation of building contract –distinction between the interpretation of the terms of a contract and standard or extent of performance required to satisfy those terms.

CHARITIES – charitable trust – Charitable Trusts Act 1993 – whether deed made in 1971 (“the 1971 Trust Deed”) constituted a valid charitable trust for religious purposes – what real and personal property then constituted, and what property now constitutes, the trust property under any trust constituted by the 1971 Trust Deed – were the terms of any trust constituted by the 1971 Trust Deed varied by either of two subsequent trust deeds made in 1977, 1978 and 1985 – who are the current trustees of the trust – should orders be made appointing new trustees and vesting the trust property in these new trustees.

WORKERS COMPENSATION – Application for leave for extension of time – Work injury damages – Whether limitation period deliberately allowed to expire - Explanation for delay - Strength of case – Prejudice - Error established – Discretion to grant leave not exercised

PRACTICE AND PROCEDURE – application for summary dismissal – previous proceedings dismissed by consent – whether consent dismissal gives rise to issue estoppel – whether Civil Procedure Act 2005 (NSW) s 91 defeats a claim of issue estoppel – whether plaintiff’s claims untenable

COSTS — Party/Party — Court’s discretion — second defendant made submitting appearance — the plaintiffs and first defendant are ordered to pay the second defendant’s costs in equal shares COSTS — Party/Party — Bases of quantification — Indemnity basis — Excessive indemnity costs sum — the second defendant is not entitled to indemnity costs — party with submitting appearance not entitled to indemnity costs COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Calderbank letter served by second defendant has not entitled it to indemnity costs

ADMINISTRATIVE LAW – judicial review – appeal on question of law – procedural fairness – protective orders – where Tribunal indicated contentment with proposed orders but then did not make all proposed orders – where procedural fairness was denied – whether certain orders may only be made as a package – statutory interpretation – individual orders may be made to the exclusion of others

CRIMINAL PROCEDURE – application to set aside paragraphs of a subpoena issued to Commissioner of NSW Police – where subpoena sought historical Police documents including notebooks and operating manuals – where subpoena also sought search warrant records and interview records – whether subpoena amounted to discovery and was a fishing expedition – where a legitimate forensic purpose existed only in respect of certain paragraphs – schedule to the subpoena set aside in part – balance of notice of motion dismissed

PRACTICE AND PROCEDURE – application for separate representation – conflict of interest – whether additional and subsequent set of proceedings will arise if order for separate representation is not made – whether separate representation will assist the defendant in complying with its differing contractual obligations

CIVIL PROCEDURE – notice of motion to adjourn hearing of appeal – whether hearing of appeal should abide outcome of special leave application to enable appellants to challenge primary judge’s findings – whether Evidence Act 1995 (NSW), s 91 impedes appellants’ challenge of primary judge’s findings

APPEAL – costs of appeal – offer of compromise at trial – offer not renewed APPEAL – costs of appeal – appellant successful on particular issues – judgment below set aside – whether costs to be apportioned by issue COSTS – interest on costs – application to vary default position under statute – whether adequate reasons for ordering interest COSTS – offer of compromise – offer prior to trial – whether period offer open for acceptance was “reasonable in the circumstances”

CIVIL PROCEDURE – application for separate determination – underlying proceedings complex – significant overlap in factual and evidentiary matters between all issues – danger of inconsistent findings on credibility – ordering separate determination unlikely to contribute to the just, quick and cheap resolution of disputes – application dismissed with exception of one narrow quantum issue.

EQUITY – Equitable remedies – Injunction to restrain defendants from performing real estate services – Damages would be an adequate remedy – Injunction refused

CIVIL PROCEDURE – application for leave to continue proceedings against first defendant – where such leave would have short-lived effect – where plaintiff sought an adjournment at commencement of hearing – adjournment would render any leave granted inutile – application for adjournment denied – plaintiff thereby indicated it did not press its motion. COSTS – where plaintiff submitted that it might re-agitate its motion at some later time – whether costs discretion should be exercised in a contingent way – where no utility in bringing the present application – costs should follow the event – insufficient basis to order costs on the indemnity basis.

CIVIL PROCEDURE – Subpoenas – Application to set aside – Claim brought against defendant physiotherapist in negligence – Subpoena to produce issued to physiotherapy clinic seeking notes concerning unrelated patients – Whether subpoena has a legitimate forensic purpose or constitutes a trawling or fishing expedition

EQUITY – Equitable remedies – Injunctions – Plaintiff’s wife involved in motorcycle accident leading to hospitalisation and being placed on life support – Doctors formed the view that the plaintiff’s wife was brain dead and intended to terminate further treatment – Whether the plaintiff’s wife was deceased in the terms of the Human Tissue Act 1983 (NSW) – Whether injunction to prevent cessation of medical treatment should be granted

CIVIL PROCEDURE – Pleading – Striking out – Where defendant failed to conduct defence with due despatch – Whether Court should exercise its discretion to strike out the defence in accordance with UCPR r 12.7(2)

PROCEDURE – costs – where matter settled – motions regarding subpoenas – each party to pay its own costs

COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause

CORPORATIONS – subpoenas – application to set aside subpoena – where company and its liquidators commenced proceedings against directors for alleged insolvent trading – where directors alleged that the receivers failed to take reasonable care to ensure company assets were sold for market value or for best price – where the directors issued subpoena for documents to the receivers relating to the sale process of company assets – whether subpoena lacked a legitimate forensic purpose – whether subpoena too wide and oppressive

COSTS – application for lump sum costs order – whether amount claimed fair, reasonable and proportionate to the time and costs involved in the application

BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – whether payment claim valid – whether reference date available to support payment claim – whether adjudicator denied procedural fairness to respondent to payment claim

DEFAMATION – damages – consideration of matters of aggravation – unfair editing of matter complained of – absence of evidence to support allegations made in broadcast – unreasonable maintenance of truth defence – consideration of matters of mitigation – partial success of truth defence – dishonest evidence

LAND LAW – Conveyancing Act 1919 (NSW), s 37A – voidable dispositions – order that property be made available to meet debts – form of consequential orders CIVIL PROCEDURE – orders for property to be made available to meet debts – stay of enforcement – where proposed cross-claim for property settlement proceedings under the Family Law Act 1975 – appeal

CIVIL PROCEDURE – pleadings – amendment – application to amend defence – where no disadvantage to the plaintiff – where amendment clarifies the defendant’s position CIVIL PROCEDURE – application by the plaintiff to serve additional medical evidence – where no prejudice to the defendant – where evidence relates to a potentially significant issue

CRIMINAL LAW – sentence – pleas of guilty – accessory after the fact to murder and to shoot with intent to murder – limited assistance to principal offenders – period of 3 ½ years pre-sentence custody – whether any further punishment called for

CIVIL PROCEDURE – summary dismissal – standing – claim for wrongful buy-back and cancellation of shares held as trustee – whether trust a separate legal entity so as to be proper plaintiff in its own right – Corporations Act 2001 (Cth), s 57A CIVIL PROCEDURE – summary dismissal – standing – claim for wrongful buy-back and cancellation of shares in proprietary company – whether assignable – Corporations Act 2001 (Cth), 1070A(1) CIVIL PROCEDURE – stay of proceedings – earlier proceedings by corporate trustee stayed because no solicitor acting – whether fresh proceedings by replacement individual trustees an abuse of process

PROTECTED PERSONS – second defendant incapable of managing her affairs – New South Wales Trustee and Guardian appointed as receiver and manager of her estate – Public Guardian appointed as the second defendant's committee of the person with plenary authority in relation to her person – the second defendant currently resides in a nursing home – the second defendant has two children, the first plaintiff and the first defendant – the first plaintiff and the first defendant cannot agree upon the appropriate future place of accommodation for the second defendant – each of the second defendant's children holds strong but different convictions about where the second defendant should live – the first defendant contends that the second defendant should remain in the nursing home, where she now resides – the first plaintiff contends that the second defendant's specific personal needs require her to be transferred back to and accommodated in her former home – the first plaintiff seeks appointment as the second defendant's committee of the person – the first defendant seeks to maintain the interim appointment of the Public Guardian as the committee of the person for the second defendant – what are the second defendant's accommodation needs – what is the relationship between the second defendant's accommodation needs and the appointment of a committee of the person for her – what is in the second defendant's best interests in relation to appointment of a committee of the person for her – whether the plaintiff should be appointed as the second defendant's committee of the person – whether in the alternative, to the first plaintiff, the second plaintiff, the second defendant's grandchild should be appointed as the second defendant's committee of the person. INCAPABLE PERONS – management of estates – dispute concerning what monies are owed by the first defendant to the estate of the second defendant – plaintiff seeks appointment as the manager of the second defendant's estate – first defendant seeks the continuation of the New South Wales Trustee and Guardian as manager of the second defendant's estate – what is in the best interests of the second defendant in relation to the management of her estate – at what time should these financial issues be resolved in relation to the other issues in the proceedings about the second defendant's committee of the person.

CIVIL PROCEDURE – appeal – stay of orders – brief stay granted by primary judge – continuation of stay pending hearing of leave application and appeal – whether appeal entirely without merit – whether failure to grant stay would significantly diminish value of appeal – effect of stay on respondent’s freedom of speech – whether stay futile

TORTS – false imprisonment – whether arrest of appellant unlawful – whether there were reasonable grounds for the arresting police officer’s suspicion that the appellant had committed an offence – whether victim’s description of offender a reasonable ground for police officer’s suspicion – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1) considered DAMAGES – false arrest and false imprisonment – compensatory damages – appellant’s experience was traumatic, humiliating, frightening and embarrassing – $30,000 awarded

CORPORATIONS – winding up – replacement of liquidator – where proposed liquidator is connected with the same firm as resigning liquidator – where no order is sought for payment of the costs of the application – whether proposed liquidator should be appointed liquidator of companies.