Cases and authorities

EQUITY - Equitable Doctrines and Presumptions - Rectification - Agreement to grant a first mortgage over specified property to secure a loan - Mortgage instrument proffered with Torrens title identifier of other inferior property - Specified property already mortgaged - Whether rectification available for unilateral mistake induced by fraud - Whether rectification barred by inability to perform contract by a grant of a first mortgage

PROCEDURE [98]- No appearance by defendant- Alleged illness- Whether trial to proceed- Previous delays due to claimed illness- Medical certificates containing vague assertions- No doctor available for cross examination- No application for adjournment- Held trial to proceed in absence of defendant.

PROCEDURE - Injunctions - Defendant incorporated association in South Australia conducts drag racing events - Plaintiff a member in particular class - Rules provide for handicap index based on new National Elapsed Time Record plus 0.5 seconds - Plaintiff established new National Elapsed Time Record for his class of 9.671 seconds - Defendant set record at 9.45 seconds and new index at 9.95 seconds - Plaintiff' s evidence he non-competitive at that index - Mandatory injunction sought requiring defendant to conduct events already started at index of 10.171 seconds in plaintiff's class - Whether serious question to be tried - Whether Associations Incorporation Act 1985 (SA), s 27(1) as to validity of contracts applicable - Whether claim of oppressive or unreasonable acts under s 61(4)(g) should be raised in a South Australian Court - Whether irreparable damage of non-monetary kind sufficient to ground injunction - Whether balance of convenience favoured no injunction as drag racing meeting had already commenced - Whether 8 days between knowledge of new index and application should lead to refusal of application - Whether injunction sought in essence to support an implied negative stipulation in contract with members that defendant would not conduct meetings inconsistently with its rules - Whether damages an adequate remedy

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – Intention to form legal relations – preliminary or “in principle” agreement – where further formal documentation contemplated – Consideration – promise to perform existing obligation – whether constitutes consideration. MORTGAGES – Remedies of mortgagee – judicial sale

PROCEDURE - Injunctions - Whether statement of no present intention to take a step but that if at some future time thought desirable, assertion of right to take such steps as thought appropriate is sufficient to ground an interlocutory quia timet injunction

CONVEYANCING [191]- Caveat- Extension- Guarantee purporting to create charge over guarantor's property- Doubts as to extent of operation- Sufficient to show caveat may have validity- Extension granted.

PROCEDURE- Perfection of Judgments - Orders for the taking of an account - Whether failure entitles plaintiff to an order that copies of documents produced on subpoena be provided to the Law Society of NSW and the Legal Services Commissioner in the absence of any proceedings before either body - Whether in the absence of the taking of the account the remaining asset in the estate should be transfered to the beneficiaries - Whether an order should be made that the defendant comply with earlier orders of the Court

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Notice of withdrawal of caveat handed over to be used at settlement of mortagee sale - Caveat to lapse before settlement - Application to extend - Whether any utility in such an order

REAL PROPERTY – Co-ownership – Sale – where property subject to mortgages – where moneys secured used by first plaintiff for his own separate benefit - exoneration

SUCCESSION [309]- Family Provision Act- Whether plaintiff is an eligible person- Whether relationship with testator was landlord/boarder or carer/dependant- Whether plaintiff left with insufficient provision- Rebellious behaviour- Other beneficiaries include two of testator's foster daughters who have needs- Plaintiff suffers from past substance abuse- Protective Commissioner manages plaintiff's financial affairs- Will's provision found to be inadequate.

FAMILY LAW - child welfare - application by Director-General for Community Services for final relief by way of order assigning to him care and custody of children - three siblings, one 12 days old - proceedings pending in Children's Court - interim position secured by undertaking from grandmother

PAYMENTS INTO AND OUT OF COURT – Procedure – Where funds paid in without proceedings – Summons for payment out should be filed with matter number allocated to affidavit on payment in – – requirement for accountant’s certificate and evidence of absence of stop orders - Parties – Where defendant who cannot be served does not apparently have claim – order that defendant be removed as party

PROCEDURE – Discovery – whether categories of documents relevant to fact in issue – where documents may corroborate or contradict facts asserted in allegedly forged document – documents may rationally affect assessment of allegation of forgery

COURTS AND TRIBUNALS - CONSUMER TRADER AND TENANCY TRIBUNAL - EX PARTE APPLICATION - POSSIBLE EXERCISE OF JURISDICTION AGAINST NON PARTY - STAY TO ENABLE APPROPRIATE INVESTIGATION AND PROCEEDINGS TO BE INSTITUTED

CONTRACTS [35]- Provisional contract to do work- Detailed final version submitted after work done- Too late- Provisional contract prevailed. CORPORATIONS [214]- Statutory demand- Application to set aside- Disputed facts- Legal analysis of on facts most favourable to plaintiff, plaintiff must lose- No genuine dispute.

LIQOUR LAW - Licensing - Poker Machine Entitlements - Whether a poker machine entitlment is a permit under or endorsed on a lease - Whether a poker machine entitlement is part of a hotel as defined in a lease

PROCEDURE - Miscellanous procedural matters - Adjournments - Application for appointment of provisional liquidator of a company and receiver and manager of the assets of a number of trusts - Short service of interlocutory process and supporting affidavit - Defendants sought adjournment on basis of inadequate time to prepare - Facts within the knowledge of an individual defendant who controlled all the corporate defendants - Evidence that moneys raised from investors had found their way into the trusts - Evidence that the individual defendant has caused some corporate defendants to breach asset protection orders - Whether the adjournment should be granted

Practice and Procedure - Costs - Security for costs where personal as well as corporate plaintiffs resist making of order - Party suing for benefit of another - Necessity for all shareholders in corporate plaintiffs to disclose their net assets

ASSOCIATIONS [5]- Whether Annual General Meeting valid- Whether AGM appointed a properly constituted governing body- Notice of the meeting given by person other than elected secretary- Incomplete financial accounts- Meeting held to be valid.

PROCEDURE - Costs - Plaintiff successful in having right of way extinguished - Whether costs should follow the event and defendants, unsuccessful in protecting their rights, should pay the plaintiff’s costs - Whether objection an incident of an application to extinguish a right of way - Whether partially successful plaintiff should pay the costs of unsuccessful defendants - Whether there should be no order as to costs where plaintiff is wholly successful - Effect of a Calderbank offer made by the plaintiff on the second day of trial

SUMMARY JUDGMENT - SHERIFF EXECUTING JUDGMENT OF LOCAL COURT - NO UNLAWFUL CONDUCT BY SHERIFF IDENTIFIED - PROCEEDINGS DOOMED TO FAILURE - UCPR Pt13 r 13.4 APPLIED

REAL PROPERTY – land under Torrens Title – Caveats – Removal – where seriously arguable that caveator has caveatable interest – balance of convenience – to permit refinance of higher ranking security – where refinance may derogate from caveator’s claim

Security for costs

EVIDENCE – Subpoenas and Notices to Produce – setting aside – relevance – apparent relevance

PROCEDURE – Preliminary or separate questions – total and permanent disablement claim – whether order should be made for determination of validity of trustee’s decision as separate question – relevance of Civil Procedure Act 2005 (NSW) principles

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Application to extend caveat - Contract for sale of land in name of daughter of plaintiffs as purchaser - Name of purchaser altered by secretary in defendants' solicitors' office to parents - Subsequent execution of document by defendants confirming they were prepared to settle sale to parents - No settlement - Defendants enter into new contract for sale to another party who lodges a caveat - Plaintiffs' caveat lodged subsequently - Whether an arguable case of authorisation or ratification

CAVEATS – extension of operation – where seriously arguable that caveator has caveatable interest – whether caveat should be extended – balance of convenience – where lapse of caveat might derogate from caveator’s claim – discretionary considerations – delay – sufficiency of undertaking as to damage

Trusts - trustees for sale of land under s 66G Conveyancing Act 1919 - Trustees' entitlement to be indemnified out of trust estate - burden to fall upon beneficiaries equitably having regard to circumstances under which costs, charges and expenses incurred

PROCEDURE - Miscellaneous Procedural Matters - Re-opening Case - Application to re-open to cross examine defendant after submissions and decision reserved - Basis said to be confusion as to order of events in affidavit served that day - Order set out in previous affidavit - Plaintiff in cross examination agreed with order

SUMMARY JUDGMENT - REFUSAL BY LOCAL COURT REGISTRAR TO PERMIT FILING OF DOCUMENTS - DOCUMENTS LACKING CONTENT OR STATUS IN PROCEEDINGS - NO ERROR BY REGISTRAR DEMONSTRABLE - CLAIM DOOMED TO INEVITABLE FAILURE - UCPR Pt13 r 13.4 APPLIED

CONVEYANCING [151]- Torrens title- Cancellation and re-issuing of certificates of title- When appropriate. TRUSTEES [130]- Appointment by the court of trustees for sale- Factors to consider when choosing between proposed sets of trustees.

PROCEDURE – Stay – stay pending appeal judgment for damages and mandatory injunction – where an arguable ground of appeal – where no evidence of inconvenience or hardship to defendant/applicant in obtaining restitution if appeal succeeds.

MENTAL ILLNESS [3]- Appointment of tutor- Application by wife to act as tutor for husband in District Court proceedings- Husband's mental state inhibits ability to instruct solicitors- Whether "person under legal incapacity" pursuant to Civil Procedure Act 2005, s 3- Husband does not have mental disability and can express his will- Parens patriae jurisdiction- Husband consented to wife being tutor- Wife authorised to act as husband's tutor in District Court proceedings.

PROCEDURE - Supreme Court procedure - ECM Courts - Failure of defendant's solicitor to respond to a direction in the ECM Court or to ensure that counsel were registered as users of the ECM System - Appropriate orders in open court

APPLICATION - continuous detention order - extended supervision order - sex offender - interim detention or interim supervision order - legislative purpose - protection and rehabilitation - alteration of standard of proof - meaning of "likely' - whether the defendant requires supervision - whether a stay should be granted - procedural fairness - psychologists' evidence - actuarial risk assessments - sexual recidivism risk - participation in treatment programs - whether electronic monitoring available - whether adequate supervision available

REAL PROPERTY [250]- Grant of easement- Dry cleaners seek right of way from street to back yard- Past use of way by leave and licence- Whether easement is reasonably necessary- Substantial inconvenience to defendants- Application refused at this stage.

REAL PROPERTY - Torrens Title - Caveats against dealings - application for removal of valid caveat to permit refinance - issues and onus on such application - where indisputable caveatable interest - whether balance of convenience favours removal - where removal sought to permit refinance of first mortgage - where result would not be detrimental to and may enhance position of caveator - whether undertaking as to damages required as condition of maintenance of caveat.

CORPORATIONS [10]- Articles of Association- Construction- Succession of Senior Vice-President to President- Whether succession applicable to person filling casual vacancy- Held "Yes".

CONTRACTS - contractual promise to sign strata plans as expeditiously as possible after "completion of the Building Works" - such works to be carried out in accordance with certain plans, specifications and approvals - whether serious question to be tried as to whether "completion" has occurred - application for interlocutory order for specific performance - may be regarded as application for interlocutory mandatory injunction - a particularly rara avis

EVIDENCE – Subpoenas and Notices to produce – setting aside – relevance – width – whether issued bona fide to obtain relevant evidence

EQUITY [388]- Specific performance- Sale of land- Deposit paid- Purchasers ready, willing and able to complete- Damages inadequate- Held vendor to specifically perform contract for sale of land. (No question of principle).

CORPORATIONS [236]- Winding up by court- Termination- Solvency- Application by contributory to terminate winding up- Contributory paid debt of petitioning creditor- Contributory probably now creditor of company- Insufficient evidence to show solvency- Winding up not terminated.

Bail Act -Stay of grant of bail by magistrate pending review - whether bail should be granted - whether stay warranted.

EVIDENCE – Privilege – Without Prejudice communication – whether “in connection with an attempt to negotiate a settlement” – whether “affects a right of a person” – whether in furtherance of a deliberate abuse of power – whether evidence of abuse of process – Evidence Act 1995 (NSW), ss 11, 131

Practice and Procedure - Additional discovery

TRUSTS [103]- Constructive trust- Purchase of property by father- Son contributed wages towards purchase- Father intimated to son that son would receive half share in property when father died- Whether constructive trust arises by promissory estoppel- Promise vague- Reliance on promise not established- Monies paid because of filial duty of son to family- Held no constructive trust.

PRACTICE AND PROCEDURE - where further remitter to referee was to proceed only on the basis of evidence in first reference - where party changed approach to quantification of damages - whether further remitter should be terminated - no question of principle

LANDLORD AND TENANT – Residential lease – statutory terms – landlord’s right to enter to carry out necessary repairs and maintenance – landlord’s obligation to provide premises in reasonable state of cleanliness and to provide and maintain premises in reasonable state of repair – where loose asbestos dust in premises – where defective unenergised electrical wiring – whether landlord entitled to enter to remove dust and repair wiring. - PROCEDURE – where orders made in earlier proceedings as sought in plaintiff’s summons – where defendant endeavours to comply but plaintiff obstructs performance and no longer wishes orders to be operative – whether orders should be set aside – whether proceedings should be dismissed as abuse of process.

CORPORATIONS – statutory derivative action – application for leave under Corporations Act 2001 (Cth) ss 236, 237 by member and director of deadlocked company to bring proceedings for breach of directors duties against other director – whether questions of credit of applicant relevant to good faith requirement – held, not relevant – where same issues will be raised in proceedings as presently constituted whether or not leave is granted – COSTS – interlocutory application – where respondent puts applicant to proof of all matters – costs order in favour of applicant independent of final outcome of proceedings warranted.

INJUNCTIONS - Asset preservation orders - against third parties - whether respondent may be liable to contribute to assets of defendant to satisfy judgment if obtained by plaintiff - risk of dissipation - relevant parties - whether payment by respondent to liquidator of defendant should be exempted