Cases and authorities

CORPORATIONS – creditor’s statutory demand – application to set aside the demand – where debtor sought a declaration that the creditor’s statutory demand was null and void – where application brought outside 21 day period prescribed by s 459G of the Corporations Act 2001 (Cth) – where Australian Business Number of creditor on the demand was alleged to be incorrect – where address for service of application to set aside the demand specified in prescribed form was the registered office of the creditor and outside New South Wales – whether to set aside the demand.

EVIDENCE – admissibility of purported admission in letter from second defendant – application of s 79 Evidence Act – Lithgow City Council v Jackson

CRIMINAL LAW – procedure – application to cross-examine a witness pursuant to s 38 of the Evidence Act 1995 (NSW) – prior inconsistent statement allegedly made by the daughter of the accused – whether the cross-examination will add to the length of the trial – whether the cross-examination will occasion any unfairness to the accused

COSTS – no point of principle - defendant seeks indemnity costs in relation to Local Court appeal proceedings – Calderbank offer made – whether Calderbank offer genuine – whether it was unreasonable for the plaintiff not to accept Calderbank offer

COSTS – no point of principle - defendant seeks indemnity costs in relation to security for costs motion – Calderbank offer made –whether it was unreasonable for the defendants not to accept Calderbank offer

PROCEDURE – notice of motion – order sought to appoint a representative to the deceased person’s estate – Rule 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) – appointment consented to – order made

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – application for interim extension order – forensic patient – limiting term due to expire

CORPORATIONS – schemes of arrangement – application for postponement of scheme meeting – where new developments create situation of fluidity – what course will best serve the interests of the shareholders as a whole

CRIMINAL LAW – autrefois convict – plea in bar – participate in a criminal group – where accused previously sentenced for same offence – criminal group the same in each charge –Brothers For Life – comparison of elements – whether identification of different particulars sufficient to defeat plea in bar – plea in bar sustained – accused discharged on count CRIMINAL PROCEDURE – autrefois convict – correct procedure on contention of plea in bar – whether plea of not guilty should remain on foot when plea in bar asserted – correct form of verdict

TORT – assault – credibility of witnesses - standard of proof where grave allegations made – motive is an aspect of probability - onus not discharged – finding that defendant acted in self defence CONTRACT – claim for breach of covenant of quiet enjoyment and alleged forced eviction from premises – evidence of plaintiff not accepted – failure to discharge onus

PRACTICE – subpoenas – application for leave to issue subpoenas in appeal – subpoenas seeking further evidence – not demonstrated that evidence sought by subpoenas could not have been obtained with reasonable diligence at trial – application refused

SUCCESSION – family provision and maintenance – release of rights to apply for family provision order – (NSW) Succession Act 2006, s 95 – requirement that evidence demonstrates releasor’s understanding of what rights are being released – relaxation of evidentiary requirements in context of case – where prudent and advantageous for plaintiff to give release – where terms of release are fair and reasonable – where plaintiff has taken and given due consideration to independent advice.

SENTENCING – contempt – punishment options the same irrespective of whether contempt is civil or criminal – aggravating and mitigating factors – deliberate nature of the defiance – absence of harm in reality – whether evidence of character should be admitted – considerations of vindication, deterrence and punishment – mere admonition insufficient to achieve those ends – relevance of contemnor’s travel plans

PROCEDURE – eviction – order seeking to restrain defendant from evicting plaintiff – orders made

HIGH RISK OFFENDER – application for an extension of interim supervision orders – consent orders made in terms agreed

PROCEDURE – Costs – General rule costs follow the event – Whether there should be an apportionment of the Defendants’ costs between unsuccessful Plaintiffs – Some commonality of evidence but no real commonality of issues in the cases

POSSESSION OF LAND – application to set aside default judgment – in circumstances where defendant claims he was not served with statement of claim – where defendant claims a right to possession – whether defendant has an arguable case on the merits

CORPORATIONS – members’ remedies – oppression – oppressive to, unfairly prejudicial to, or unfairly discriminatory against – contrary to the interests of the members as a whole – nature of conduct – reasonableness of conduct CORPORATIONS – remedies – winding-up – where business still operational – where relationship between members has broken down CORPORATIONS – breach of directors’ duties – conduct in running competing business – use of information – whether businesses competitive in the same market – provision of similar services – distinguishing features CORPORATIONS – accessorial liability – whether parties induced or procured breaches of fiduciary obligations – whether parties knowingly concerned in breaches – accessorial liability of corporate entities – dishonesty – requisite level of knowledge INTELLECTUAL PROPERTY – trade marks – whether trade mark likely to mislead or cause confusion – common or generic words – “institute” – recognition by consumers

PROCEDURE – Costs in unsuccessful claim for a family provision order by two Plaintiffs – Virtually no estate of the deceased and if property designated as notional estate, the value thereof was no more than $122,500 gross – Designating order not made General rule as to costs on dismissal of proceedings – Whether to depart from the general rule that costs follow the event – Whether indemnity costs should be ordered – Overall justice of the case

EQUITY – Trusts – Whether resulting or constructive trust – First plaintiff, the father of the Defendants alleged to have provided part of purchase price of property in name of three of his sons EQUITY – Whether equitable lien securing alleged contributions Court not satisfied that any contribution to purchase price made by first Plaintiff – Even if contribution made, court not satisfied of the amount of the contribution PROPERTY (RELATIONSHIPS) ACT – Claims for adjustments of property pursuant to Property (Relationships) Act 1984 (NSW) – Only one property the subject of claim – Whether parties living together in a close personal relationship – Parents and son – Parents and son and daughter in law – Whether living together – Respective contributions of parties – Where Plaintiffs’ financial and non-financial contributions unremarkable – Where Plaintiffs obtain countervailing benefits from relationship, financial and otherwise, including occupation of part of the subject property registered without payment of rent or occupation fee – Holistic value judgment – Not just and equitable to make any adjustment order

LANDLORD AND TENANT – rent – breach of covenant to pay – accepted that landlord was entitled to terminate the lease for breach of essential term to pay rent – whether tenant owed money as a result of EFTPOS transactions conducted through landlord’s account – whether landlord in breach of plaintiff’s right to quiet enjoyment – entitlement to costs order pursuant to lease

CONTRACT – construction – contract for purchase of software – where software required authenticity check every three months to continue operating – whether breach of term that licence to use would be of unlimited duration – whether breach of warranty that software would be fit for purpose CONTRACT – implied terms – where individual contracts of supply in commercial relationship involving purchase, re-sale, installation and maintenance by distributor – whether implied term in supply contracts that original supplier would provide parts and support services to distributor as required for continued operation of systems for their lifetime, irrespective of whether distributorship arrangement terminated, and at prices applicable to ongoing resellers or distributors – whether conduct and statements of parties supported implication – whether implication of term necessary for reasonably effective operation of supply contracts with distributor ESTOPPEL – equitable estoppel – conventional estoppel – whether assumption adopted between parties as to ongoing obligation of original supplier to provide to distributor and reseller parts and support necessary to ensure effective operation of systems for their lifetime – whether conduct, including statements between parties, points plainly to adoption of assumption said to constitute conventional basis of supply relationship AUSTRALIAN CONSUMER LAW – unconscionable conduct under Australian Consumer Law, s 21 – whether supplier acted unconscionably by withdrawing support and ceasing direct supply to distributor and reseller

PROCEDURE – application to set aside consent orders – orders entered but to be treated as not entered – no mistake or misapprehension in agreeing to orders – retrospective change in law revived availability of appeal – change of law in prospect when orders agreed to – agreement unqualified – no challenge to agreement – reliance on possible anomalies – reliance on interest in resolving dispute as to operation of statute – Uniform Civil Procedure Rules, r 36.16

EVIDENCE –hearsay – admissibility of statement of witness who is currently overseas – application of s 64 Evidence Act 1995

PROCEDURE – pleadings – allegations of fraud – particularisation of fraud as material fact.

APPEAL – civil – Local Court – conventional estoppel – costs – Local Court Practice Note Civ 1 –– the trouble with the law (there is too much of it)

CONTRACT – agreement whereby plaintiff provided its principal’s services to manage one of the defendant’s businesses – obligation to negotiate in good faith towards long-term incentive package – enforceability – whether breached – where defendant attempted in good faith to negotiate towards a package – failure of plaintiff to do the same – consequence that no breach shown – whether any loss suffered – poor performance of the business under plaintiff’s management – result that any performance-based incentive package would not have yielded a benefit to the plaintiff in any event – alternative contention that plaintiff should have been remunerated in line with market rates – where evidence demonstrated that it was remunerated above market rates – consequence that no loss suffered

PROCEDURE – transfer of proceedings from Local Court to Supreme Court so statement of claim can be served outside Australia – order made

EVIDENCE – admissibility of expert report – application of “basis rule” – where assumptions made by expert may not come up to proof in evidence

PROCEDURE – ex parte – notice of motion – order for short service – subpoena for production – order made

PROCEDURE – stay application – agreement reached – consent orders made

PROCEDURE – notice of motion – anti suit injunction sought - motion dismissed

COSTS – gross sum costs order – whether claimed costs include costs outside scope of indemnity costs order – whether impugned costs relate to application for removal of first defendant as trustee – whether claimed costs covered by other extant costs orders – whether general costs order of 9 October supersedes interlocutory costs orders – purpose of 9 October costs order – whether plaintiffs’ solicitors paid more than their entitlement under costs agreement – construction of costs agreement – whether plaintiffs entitled to recover costs actually paid to solicitors irrespective of legal obligation – indemnity principle – relevance of date of costs order – where solicitors acted for plaintiffs and another party – where plaintiffs only liable for and paid proportion of costs –whether liability under retainers joint or several – where no express term in retainers – rebuttable presumption that costs to be borne separately where separate retainers executed – whether presumption rebutted – rights of contribution between plaintiffs – whether global reduction in costs should be made – where usual practice of court to apply discount to lump sum costs orders – where process of revising down costs has taken place through challenges to solicitor/client bills – whether amounts charged unreasonable – where no element of unreasonableness identified by defendants.

REAL PROPERTY – caveats – extension of caveats – caveator a grantee of call option – whether serious question to be tried that option was validly exercised – Real Property Act 1900 (NSW) s74K. CONTRACTS – construction and interpretation – call option – requirements for valid exercise of option – whether compliance with requirement of delivery of two executed contracts essential for valid exercise of option

LIQUIDATORS – failure by company to pay amount demanded by Deputy Commissioner of Taxation – application for winding up filed – where two weeks before winding up order $110,000 transferred out of company’s accounts – where three days before order registration of eleven motor vehicles in company’s fleet transferred into name of another company controlled by one of the applicants - where liquidator repossessed two of the motor vehicle – where liquidator retained funds paid to company by contractor – whether cause shown for removal of liquidator

CRIMINAL LAW – procedure – objection pursuant to s 18 of the Evidence Act 1995 (NSW) – objection made by the daughter of the accused – whether the applicant should be compelled to give evidence as a Crown witness in a murder trial – objection not upheld

PRACTICE AND PROCEDURE – plaintiff’s consent to default judgment being set aside given on the basis of defendant’s sworn evidence which she subsequently admitted was false – application by plaintiff to have default judgment reinstated – circumstances in which a court sets aside orders entered by consent – whether plaintiff entitled to summary judgment – whether bona fide defence on the merits – effect of defendant’s failure to give sworn evidence in opposition to plaintiff’s application PRACTICE AND PROCEDURE – motion to set aside interlocutory consent order to be brought in the original proceedings to avoid multiplicity of proceedings CONTRACT – consent orders handed up to resolve interlocutory notice of motion not enforceable contract CONTRACTS REVIEW ACT – relevance of benefit to borrower from discharge of earlier mortgage to secure loans admitted to be owing – no evidence to displace lender’s entitlement to possession and judgment based on portion of advance that conferred incontrovertible benefit on borrower

CONSTRUCTIVE TRUST – dishonesty – no intention to retain beneficial interest

REAL PROPERTY – statutory trusts for sale or partition – co-ownership – benefits of partition – whether partition “more beneficial” to co-owners – where no admissible evidence of benefits led – appointment of trustees for sale EQUITY – mortgages – where parties co-owners – where property to be sold – where one party’s interest unregistered – liability to discharge mortgage – whether liability should be borne by both parties – where one party responsible for mortgaging property – whether co-owner took interest subject to mortgage ESTOPPEL – Anshun estoppel – where parties subject to previous judgment – whether plaintiff seeking orders in conflict with previous judgment – whether matters in issue in previous proceedings – whether matters ought to have been raised in previous proceedings

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

FAMILY PROVISION AND MAINTENANCE – Claim by second wife with own home and where she and deceased kept their financial affairs separate - Succession Act 2006, ss 57, 58, 59, 60

SUCCESSION – TRUSTS – Claim for resulting and/or constructive trust in respect of two blocks of land in which the deceased and the Defendant were joint tenants – Prior to hearing, the Defendant and the court informed that Plaintiffs not continuing with trust claim – Trust claim to be dismissed SUCCESSION – FAMILY PROVISION – The Plaintiffs, each of whom is a child of the deceased, apply for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – Proceedings not commenced within the time prescribed by the Act for the making of the application – The Defendant is the widow of the deceased and mother of the Plaintiffs – Deceased left no Will – Whole estate passes to Defendant under the operation of the intestacy rules – – No dispute as to each Plaintiff’s eligibility as a child of the deceased – Whether any actual estate – Application made to amend Statement of Claim to assert that part of proceeds of sale of jointly held property sold in June 2007 should be declared to be actual estate of the deceased – Alternatively, property that may be designated as notional estate of small value – Whether sufficient cause shown for making order extending the time for making the application – Whether adequate and proper provision not made for the Plaintiffs – Relevance of open offer made on behalf of the Plaintiffs during course of the proceedings

CONVICTION APPEAL – armed robbery – masked offenders – offenders’ discarded clothes nearby – stocking worn over face of one offender – DNA testing of offenders’ clothes – applicant’s DNA found on stocking – whether conviction unreasonable – whether inference arose that applicant’s DNA deposited while wearing stocking over head – whether possibility of indirect transference – whether reasonable alternative hypothesis could account for presence of DNA – evidence strongly pointed to applicant depositing DNA on stocking during robbery – conviction not unreasonable – appeal dismissed.

CRIMINAL LAW – firing a firearm at a dwelling house with reckless disregard for safety – sentence – early plea – whether discount given for plea – no mention of discount in sentencing remarks – consideration of transcript of sentencing hearing – basis of sentence explained in exchanges with counsel – discount built into sentence imposed.

PROCEDURE – summary dismissal – whether arguable cause of action is disclosed – whether judgment procured by fraud – whether fresh facts, which are material, discovered since the trial

EVIDENCE – admissibility of email thread – where one email is said to contain an admission by plaintiff’s solicitor

PROCEDURE – notices to produce – application to set aside notice to produce – legal professional privilege – whether legal professional privilege waived by production of documents – where production of documents inadvertent or unintentional – where lengthy passage of time and failure to raise question of inadvertence.

COSTS – no point of principle - claim for professional medical negligence – judgment entered for the defendant – general rule that costs follow the event – whether costs should be paid on an indemnity basis – three offers of compromise made – whether costs should be paid on a gross sum basis – assessment of costs likely to be protracted and expensive – whether a broad brush approach should be taken

JOINDER OF INSURER – Law Reform (Miscellaneous Provisions) Act 1946, s 6 – whether statutory charge extends to person who has benefit of contract of insurance but not party – whether such a person “entered into a contract of insurance” – whether arguable case has been demonstrated against party to insurance contract – application refused.

COSTS – claim and cross-claim – claimant in each succeeds – verdicts accordingly – judgment for plaintiff for balance after set-off – whether costs should follow each event and then be set off – where amount in issue was not large – where complexity of issues would necessitate a costly assessment – consequence that interests of justice favour a broad brush approach