Cases and authorities

CORPORATIONS [72]- Charge- Alleged insolvent transaction- Charge within six months of winding up- Whether company insolvent- Test- Held it was- Charge voidable- Corporations Act 2001 (Cth) ss 588FC, 588FE, 588 FF. EVIDENCE [158]- Dobbs clause- How applied to determine quantum- Evidence insufficient to fix amount due- Advice given to liquidator.

EQUITY - Remedies - Injunctions - Interlocutory injunctions - fiduciary obligations - purchasing rule - where company director who is also trustee of share for her children acquires property from company, and proceeds of property traceable into other accounts - whether Barnes v Addy claim arguable where not shown that defendant know of trust - balance of convenience - delay - comity of courts - where injunction is indirectly inconsistent with order in related proceedings in Family Court - where injunctions would indirectly hinder prosecution of proceedings in Family Court – where Family Court has held it has no jurisdiction.

SUCCESSION [258]- Executor- Removal and discharge- Administration not completed after three years from death- Deceased's property left vacant- High payment of commission demanded by executor- Inexcusable delay and inefficiency- Grant of probate to executor revoked.

INJUNCTIONS – Freezing Orders – where successful defendant has strong prima facie case for substantial costs order against unsuccessful plaintiff – where respondent plaintiff does not give undertaking when sought – where respondent’s credit has been subject of adverse judicial comment in proceedings - where plaintiff had previously satisfied a costs order in the proceedings – whether sufficient danger of dissipation established

PROCEDURE - Pleadings and Particulars - Summons raising discrete issue of dispute over interests in a unit trust - Defendants not opposed to final relief sought but seek leave to file a cross claim raising disputes between the parties through other investment vehicles - Whether leave should be granted

TRUSTS – Trustees – Removal and Appointment – where property acquired for benefit of child in name of his grandmother with funds advanced by insurer pending personal injuries claim to be brought by child against mother – where child’s parents divorced – where residence order in favour of father made by Family Court – where child residing with father and siblings in trust property - alternative proposals for appointment of father and Public Trustee – need for affidavit of fitness - relevant considerations.

PROCEDURE - Supreme Court Procedure - Court advice to Trustees - Trustee of trust for brain damaged infant seeking advice from Court under the Trustee Act 1925, s 63 - Mother of infant bare trustee of house property - Series of mortgages for personal interests of infant's grandmother - Weather trustee justified in applying to remove and replace mother and seek to unemcumber house property

CORPORATIONS - arrangements and reconstructions - companies in liquidation - proposed compromise or arrangement with creditors - application for approval of compromise or arrangement subject to alteration - court's jurisdiction to impose alterations after compromise or arrangement agreed to by creditors - PROCEDURE - costs - whether costs order should be made in favour of non-party granted leave to be heard - important role played by that creditor in the proceedings

PROCEDURE - Costs - Plaintiffs' refusal to remove insupportable caveat - Whether costs on an indemnity basis should be ordered with payment on assessment or agreement

PROCEDURE [91]- Plaintiff stating address for service in body of pleading without fax number- Fax number stated at foot of front page of pleading- Held address for service included fax number- Thus plaintiff could be served by fax. PROCEDURE [113]- Orders- Scope of order appears in reasons for judgment- Noted by associate- Associate's notes recorded on Court's computer- Successful party relies on this as entry of order- Opponent declines to sign document to give effect to order- Order made for court officer to sign document.

SUMMARY JUDGMENT - CLAIM AGAINST SHERIFF ARISING OUT OF EXECUTION PROCEEDINGS - NO EVIDENCE OF UNLAWFUL CONDUCT OF SHERIFF - PLEADING DISCLOSED NO CAUSE OF ACTION - CLAIM DOOMED TO INEVITABLE FAILURE - UCPR Pt13 r 13.4 APPLIED

Bail Act 1978 - serious psychiatric condition with delusions - non-availability of residential facility - safety of public

PROCEDURE – Separate questions – where evidence on separate questions would be in narrow scope – where separate questions would resolve significant part but not all of case – where prejudice to applicant for separate determination from delay and more to respondent - Civil Procedure Act warrants interventionist approach to isolate and determine significant issues.

PROCEDURE - Discovery and Interrogatories - Implied undertaking not to use documents or contents for any collateral or ulterior purpose - Defendants in District Court proceedings seek release to use affidavits in those proceedings - Affidavits not read in open court - Commonality of issues between proceedings - Parties to Supreme Court proceedings in liquidation or deregistered - One deponent the former liquidator, the other a director who did not oppose the application

EVIDENCE – opinion – expert evidence – construction industry practices – whether proper matter for expert opinion – need for proof of assumptions – whether proof of every assumption is a condition of admissibility of report – distinction between fundamental and other assumptions

CORPORATIONS – Statutory Demands – plaintiff makes applications under s 459G of the Corporations Act 2001 (Cth) (“the Act”) to set aside various Statutory Demands – alleges Demands should be set aside on grounds of “some other reason” pursuant to s 459J(1)(b) of the Act – plaintiff alleges that “some other reason” exists because: the affidavit supporting each Demand does not comply with the requirements of Form 7, as prescribed by r 5.2(a) of the Supreme Court (Corporations) Rules 1999, because it does not identify the source of the deponent’s knowledge - or alternatively that, even if it complied, the evidence of the deponent was hearsay and did not sufficiently identify the source of the deponent’s knowledge – in the circumstances neither contention sustainable – applications to set aside the Statutory Demands accordingly dismissed

INJUNCTIONS - injunction to prevent defendants exercising rights under security - adequacy of damages as remedy. - PRACTICE - whether to order issues be determined separately. - COSTS - security for costs - whether claim in substance defensive - whether issues on plaintiffs' claim likely to arise in any event.

DAMAGES - inquiry as to amount - specific performance of contract - breach by defendant

PROCEDURE - Costs - Appeal to Supreme Court instead of Court of Appeal - Order removing the matter into the Court of Appeal under Supreme Court Act 1970, s 51(1) - Whether costs should follow decisions of Court of Appeal - Plaintiff put defendant on notice that he would argue appeal to Supreme Court incompetent

Stay - Costs - Mechanisms for enforcing charges

PRACTICE AND PROCEDURE - Application to temporarily stay proceedings - Plaintiff's criminal proceedings yet to be finalised - inability to access documents - medical condition - lengthy delay in finalisation of proceedings - notice of motion dismissed

PROCEDURE [429]- Discovery- Discovery only ordered if reasonably necessary- Court must give effect to the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings- Categories of documents sought do not focus on the real issue namely whether the plaintiff has had a heart attack.

Personal injury - accident in Fiji - action commenced in NSW - whether jurisdiction should be refused - substantial issue is assessment of damages for future incapacity - advantage of local court - severe injuries requiring continuing medical intervention - necessity for plaintiff to personally attend trial - jurisdiction not declined.

Search warrant - innocent but careless - mistake in alleged facts - warrant would still have been issued - warrant valid.

BUILDING AND CONSTRUCTION - Adjudication application - whether determination void - whether adjudicator lacked jurisdiction to deal with application - abuse of process - whether a claimant under the Act can seek to enforce its claim concurrently by proceedings in court and by adjudication - Building and Construction Industry Security of Payment Act 1999.

Mandatory life sentence - application for redetermination - withdrawal - whether leave of Court required - whether Court can order that further application not be made for specified period.

SUCCESSION - Family Provision and Maintenance - Failure by testator to make sufficient provision - Deferral of interest on unpaid legacies - Order for costs

CONSUMER CREDIT – application to restrain mortgage sale – whether Consumer Credit Code applies – whether certificate that does not identify credit provider is valid for purposes of s11 – whether certificate given after credit contract made – payment in Court – delay.

SUCCESSION [10]- Whether a document was intended by the testatrix to constitute a new will or a revocation of an earlier will- Limited evidence of testatrix's acknowledgement of document- Testatrix's previous will drawn up by solicitors- Document as a whole sets out the testatrix's thoughts rather than firm disposition of property- Held that document lacks characteristics of a testamentary instrument- Insufficient evidence to show that document intended to revoke the earlier will.

PROCEDURE – costs – security for costs – application by plaintiff for security for costs of defendant’s cross-claim – standing of plaintiff to claim security under (CTH) Corporations Act 2001, s 1335 and/or (NSW) Uniform Civil Procedure Rules, r 42.41 – whether cross-claimant is in substance a plaintiff in the proceedings – whether corporate impecuniosity established – discretionary considerations

PROCEDURE – application to adjourn hearing date – where application arises from counsel seeking adjournment mistaking original hearing date – whether unavailability of preferred counsel sufficient reason to adjourn – relevant considerations

CONVEYANCING [195]- Torrens system- Dealings- Transferor dies before registration of transfer- Transfer ceases to be an operative document- Mortgagee to be added as a party- Vesting order must then be made vesting the deceased's estate in the transferee.

SUCCESSION – executors and administrators – proceedings against executors and administrators – where Will provides for transfer of shares in trustee company to plaintiffs – where trust owes estate an undetermined sum – whether shares are held by executors as constructive trustees while other assets of estate remain held by the executors in their capacity as executors - where estate has not been fully administered – where plaintiffs have indicated that they will distribute trust assets if given control of trust company – where shares could be subject of potential (NSW) Family Provision Act 1984 application – whether Court should summarily order transfer of shares to plaintiffs

EQUITY – Remedies – equitable compensation – for breach of fiduciary duty – causation – extent to which connection required between breach and loss – to whom liability to account owed – where defendant owes duties to shareholder – whether liable to account to shareholder for breaches of duty to company – inquiry as to damages – necessity to show some loss or profit to justify reference.

REAL PROPERTY – MORTGAGES – where memorandum grants power of attorney to mortgagee to sell – whether contractual power of sale - REAL PROPERTY – MORTGAGES – EQUITABLE MORTGAGES – power of sale – where relevant land subject to a registered first mortgage, two unregistered mortgages and an unregistered charge – whether equitable mortgage contains implied power of sale – power of sale pursuant to (NSW) Conveyancing Act 1919, s 109 – where mortgagee holds mortgage in registrable form – whether judicial sale is standard remedy for equitable charge or remedy of last resort – whether mortgagee should register mortgage and exercise power of sale pursuant to (NSW) Real Property Act 1900, s 58, rather than seeking judicial sale - REAL PROPERTY – MORTGAGES – EQUITABLE MORTGAGES – power of sale – manner of sale – where second mortgagee in possession of draft contract of sale with a purchase price sufficient to discharge the first mortgage totally and the second mortgage partially – whether sale should be by auction – considerations relevant to value – which party should have conduct of the sale

RESTRAINT OF TRADE - Application for interlocutory injunctive relief - where plaintiff terminates franchise agreement consequent on defendants' breach - where decision to grant injunction will determine substance of the matter - serious question - brass plate restraint - whether restraint void on public policy grounds - whether restraints no wider than necessary to protect legitimate identified interests of franchise - whether damages are an adequate remedy - balance of convenience.

CORPORATIONS - Creditor's statutory demand - allegation that demand not served - declaratory relief sought - non-service not established - injunctive relief sought on basis that any application for winding up based on present statutory demand an abuse of process - requirement for demand to claim a debt - claim for unliquidated damages for conversion not a debt - plaintiff solvent - defendants use of procedure intended to make plaintiff negotiate - abuse of process - appropriate for injunctive relief

LIQUOR & GAMBLING – poker machine entitlements – whether, on proper construction of lease, application by licensee for approval of transfer of poker machine entitlements was “an application in respect of the licence” – whether application was an act whereby licence was liable to be jeopardised – whether proposal to transfer poker machine entitlements was a failure to manage and conduct the business in a proper, businesslike, efficient and orderly manner – whether authorisation under Gaming Machines Act 2001, s 56(2) is an authorisation “under the licence”.

PROCEDURE – notice to produce – where notice requires production of legal advice from Counsel and related documents – application to set aside notice on ground of client legal privilege – where open letter refers to effect of counsel’s advice – whether privilege lost due to knowing and voluntary disclosure – whether documents related to the advice are “reasonably necessary to enable a proper understanding” of the advice – where privileged document may be shown to be necessary to understanding – whether notice requiring production of privileged documents should be set aside, or production required but access refused.

CORPORATIONS - statutory derivative action - application to amend statement of claim in proceedings for winding up and relief against "oppression", to add derivative claims and join additional defendants - whether it is probable that the company will not itself bring the proceedings, in circumstances where the primary relief is a winding up order and the appointment of a liquidator - best interests of the company, where there has been substantial delay in seeking leave to bring derivative claims

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) s 503 - liquidators - application for removal of liquidator where special purpose liquidators are appointed in addition to liquidator to conduct certain investigations - where liquidator unfunded by creditors and likely to remain so - where no available property to fund expenses - where creditor is prepared to fund investigation but not where liquidator conducts it - where liquidator supports his removal and the appointment of the special purpose liquidators in his place and where special purpose liquidators consent to that appointment

PROCEDURE - Injunctions - Halal logo on label of unauthorised product - New item with limited production - All reasonable steps taken to correct label, to stop issue of stock, to recall product, to place notice on website, to inform Halal Certification Authority Australia of steps taken - Application for injunction restraining defendant from sale or distribution of product - No infringement of common law right - No negative stipulation in contract - Reliance upon the Trade Practices Act 1974 (Cth), s 80(2) for infringement of s 52 - Whether same principles should apply as with grant of interlocutory injunctions - Whether a serious question to be tried - Whether balance of convenience favours grant of injunction - Whether damages an adequate remedy

LANDLORD & TENANT [71]- Covenants- Restricting assignment of leases- Plaintiffs sought declarations and orders that the defendant was bound to give its consent to assignment- Held that the court does not make declarations or injunctions in such cases- Proper procedure is lessee should assign if it wants to assign- If landlord obliged to give consent, landlord cannot treat assignment as a forfeiture.

PROCEDURE - Costs - How fixed costs of the provision of electronic court facilities should be borne in the first instance - Civil penalty proceedings by ASIC against 12 defendants - 3 defendants represented by the same legal representative - 11th defendant playing little part in the proceedings - ASIC offer to pay 11th defendants share of the costs - Whether ASIC should pay 50 per cent and the defendants pay the balance divided equally between 12 defendants - Whether costs should be divided into 10 shares

PROCEDURE - Miscellaneous procedural matters - Ajournments - Application to vacate hearing at late stage - A claim by son that mother holds property on trust for him as to 61% - Whether defendant should be entitled to investigate whether option to purchase to son at an undervalue and mental capacity when agreement to make a will executed - Civil Procedure Act 2005, s 57 as against Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146

COSTS – where successful plaintiff fails on some issues and against some defendants – where plaintiff unsuccessfully defends cross-claim on behalf of corporate cross-defendant pursuant to (CTH) Corporations Act 2001, s 237. - INTEREST – whether to be reduced on account of delay.

COSTS – Security for costs – corporate impecuniosity – where plaintiff is a corporate trustee – absence of evidence that plaintiff will have recourse to trust assets – where there is another plaintiff against whom security would not be ordered – where no real practical probability that costs order might be made against corporate plaintiff alone - where joinder of corporate plaintiff does not significantly expand case.

Overriding purpose rule - Self executing orders - Extension of time periods provided in self executing orders

TAXES AND DUTIES - Hardship Review Board - Plaintiff assessed to tax by defendant under Gaming Machine Tax Act 2001 - Board has power to waive tax in cases of hardship - Application for waiver rejected by Board - Proceedings seeking review of that decision - Leave granted to join Board as a defendant - Not done - Whether Board a corporate entity or constituted by individuals under the Taxation Administration Act 1996, s 106A(1) - Defendant a member of the Board - Defendant obtained judgment against plaintiff - Whether tax merged in judgment - Whether no longer any tax that might be waived by Board - PROCEDURE - Miscellaneous Procedural Matters - Adjournments - Impecuniosity to be relieved in months - Whether merger argument renders proceedings futile

CORPORATIONS - winding up - plaintiff and defendant to winding up proceedings agree to discontinue, before return date - whether most appropriate course is to grant leave to plaintiff to withdraw under s 467(3)(e) - whether the court should allow withdrawal before return date, thereby preventing any other creditor from applying for substitution as plaintiff - whether there is an inconsistency in policy between s 465A and Form 519, on the one hand, and Corporations Rule 5.6 on the other