Cases and authorities

COSTS — ordinary costs — where proceedings resolved without final hearing — where proceedings commenced to obtain landowner’s consent for development application under r 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) — easements — proposed extended width of driveway — alleged that the development application contained deficiencies — refusal of consent — proper exercise of discretion as to costs — whether defendants capitulated and acted unreasonably

TORTS — Economic torts — Injurious falsehood — Injunctions — Where plaintiff is a bank — Where defendants commissioned various billboards displaying the words ‘JUDO A FRAUDULENT BANK’ or ‘JUDO BANK MISLEADING FRAUDULENT DISHONEST DECEPTIVE’ — Where plaintiff and defendants are engaged in ongoing legal proceedings in relation to the circumstances surrounding the issue of a loan by the plaintiff — Where plaintiff alleges that representations made in billboards are injurious falsehoods — Where billboards were taken down shortly after defendants’ media went live — Whether quia timet injunction to restrain future publication of certain representations should be granted TORTS — Economic torts — Injurious falsehood — Elements — Falsity — Malice — Whether statements displayed on billboards were statements of fact or opinion — Whether representations were false — Where first defendant emailed financial journalists, economists, regulators and senior public servants in relation to perceived serious irregularities with the plaintiff’s financial reporting — Whether defendants made representations with malice in the sense of having an improper, dishonest or indirect motive, or intent to injure without just cause

CRIME — Application for inquiry into conviction pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

HIGH RISK OFFENDERS — application for extended supervision order and interim supervision order — preliminary hearing — where index offences are two counts of murder — where history of failure to comply with current supervision conditions — whether, if proved, supporting material establishes unacceptable risk of further serious violence offence

EVIDENCE – witness evidence – unfavourable witnesses – application by the Crown under s 38 of the Evidence Act 1995 (NSW) to cross-examine an unfavourable witness – whether leave should not be granted because of unfairness to the accused

ASSOCIATIONS AND CLUBS — Domestic and private tribunals — Procedural fairness — Whether appeals committee required to give reasons —Whether member subject to disciplinary proceedings entitled to know identity of complainant or witnesses

CONTRACTS — Testamentary contract — Finding of a testamentary contract for plaintiff to be given “half of my estate when I die” — Dispute as to whether plaintiff advanced the ‘estate’ claim as being the net residuary estate after administration or value of the estate as at the date of the deceased death Held plaintiff advanced claim on basis that she was entitled to the net residuary estate after administration WORDS AND PHRASES — ‘Residue’ SUCCESSION — Testamentary contract — Nature of interest that a promisee has pursuant to a testamentary contract — The ‘beneficiary theory’ and the ‘creditor theory’ discussed — Prevailing High Court authority favours or is consistent with the ‘beneficiary theory’ — Submissions that the plaintiff is entitled to judgment as a creditor of the estate rejected SUCCESSION — Testamentary contract — Claim to judgment sum and payment of pre-judgment interest to s 100 Civil Procedure Act 2005 (NSW) (“CPA”) on basis of a judgment debt entitlement rejected — However, interest permitted calculated at ‘legacy rates’ on the plaintiff’s quantified 50% share of net residue from the ‘distribution date’ of the estate COSTS — Offers of compromise — Whether offer valid — Meaning of “must not include an amount for costs” in r 20.26(2)(c) UCPR — Whether infringed by term that “the plaintiff is to pay her own costs of and incidental to the proceedings” (held no infringement) COSTS — Offers of compromise — UCPR r 42.14 — Principles discussed — Whether offers contained element of ‘real’ or ‘genuine’ compromise (Yes – as to the second offer) — Whether defendant acted reasonably in rejecting offers (No - as to the second offer) — Whether there are other factors beyond the defendant’s reasonableness capable of supporting an ‘otherwise’ order (No - as to the second offer) COSTS — Specified gross sum costs order — belated claim by plaintiff for specified gross sum costs order — Declined on facts SUCCESSION — Administration — Solvent estates — Ordinary order of application of assets to discharge of funeral testamentary and administrative expenses debts and liabilities SUCCESSION — Administration — Whether a residuary beneficiary is entitled to interest on a share of residue — Discussion regarding ss 84 and 84A Probate and Administration Act 1898 (NSW) (“PAA”) permit interest on residue SUCCESSION — Jurisdiction to make orders as to which part of the deceased’s estate bears the burden of costs orders — Interaction between the costs orders and statutory order under the Probate and Administration Act 1898 (NSW) (“PAA”) for payment of testamentary expenses — Court’s exercise of discretion under s 98 CPA permits allocation of costs burden to particular parts or shares of an estate and displaces (to the extent described in the costs order) the statutory order provisions of s 46C(2) PAA concerning how testamentary expenses are to be borne — The power to specify which shares or parts of the estate are to bear the burden of the legal costs of the proceedings is not dependent upon findings as to misconduct or unreasonableness on the part of an executor

CIVIL PROCEDURE – interim preservation – preservation of property – trustees for sale appointed to sell certain former matrimonial property – plaintiff/husband seeks compensatory relief against defendant/wife in relation to the appointment of the trustees for sale – the plaintiff/husband also seeks relief against the trustees for sale in relation to the performance of their duties in completing their sale of certain real estate – the plaintiff/husband’s claims for relief are repetitive, relate to some matters which have already been determined against the plaintiff/husband and are frequently dismissed, occasioning substantial expense –discussion of reasonable measures that can be taken to control the unnecessary expenditure of costs so that the matrimonial property is not wasted. COSTS — Costs assessment – whether costs should be paid forthwith – whether a specified gross sum should be ordered instead of assessed costs pursuant to Civil Procedure Act 2005, s 98(4)(c) in respect of particular costs orders – parties’ shares of the proceeds of sale of property need to be determined expeditiously – numerous costs orders outstanding between parties due to multiple applications by the plaintiff/husband – need to quantify the parties’ respective liability for costs, so that the true net proceeds of sale can be calculated – suitable case for the fixing of a specified gross sum instead of assessed costs – specified gross sum fixed in respect of several costs orders.

CIVIL PROCEDURE — interim preservation — freezing orders — whether there is a danger that a judgment against the first defendant will be unsatisfied because its assets may be disposed of — other relevant considerations including plaintiff’s capacity to meet usual undertaking as to damages

CIVIL PROCEDURE — Application for leave under s 4 Felons (Civil Proceedings) Act 1981 (NSW)

BUILDING AND CONSTRUCTION — payment claim — where parties engaged in two adjudicative processes — whether a decision by an adjudicator as to lack of jurisdiction to carry out the statutory functions of an adjudicator constitutes a “determination” — whether second adjudication determination is an abuse of process — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 26

CIVIL PROCEDURE — dismissal of proceedings — application for dismissal of proceedings on basis of non-payment of security for costs — where security for costs paid at the eleventh hour — whether the Court may still dismiss the proceedings on basis of late payment of security for costs CIVIL PROCEDURE — stay of proceedings — condition of payment — overturned where party benefitting from stay no longer seeks to rely on the order CIVIL PROCEDURE — adjournment — application to adjourn hearing of notice of motion COSTS — interim costs orders — application for costs orders to be paid forthwith — where the Court not persuaded to depart from usual practice LEGAL PRACTITIONERS — capacity to appear — where no record of solicitor on New South Wales Law Society website — where leave required to appear as a director of a corporation — where no leave sought

TORTS — trespass to person — intentional tort — battery — police — unreasonable use of force during arrest — where applicant slammed to ground and punched — where applicant was handcuffed and weighed 55kg — failure to apply the rule in Browne v Dunn — where respondent failed to call or ascertain unidentified police officers — where trial judge failed to draw a Jones v Dunkel inference against the respondent — lawful justification defence — whether a new trial ought be ordered — damages — aggravated damages — exemplary damages

BANKING AND FINANCE — Banks — Banker and customer relationship – where defendant bank reports to credit agencies as an adverse credit event a claimed shortfall by the plaintiff of $44.11 for one month in payment of her mortgage instalment after the bank informed her of a reduction in her monthly instalment and she paid the reduced amount early – where bank fails to take steps to have the record amended even after the shortfall is made up – where plaintiff moves the Court for final relief that the bank take such steps and shortly before a final hearing the bank takes them – HELD: order nevertheless made by the Court and reasons given

CORPORATIONS — insolvent trading — claim against director under ss 558G and 588M of the Corporations Act 2001 (Cth) for insolvent trading — whether companies were insolvent or became insolvent by incurring the debts — whether there were reasonable grounds to suspect that company was insolvent or may become insolvent by incurring the debt — whether director was aware that there were reasonable grounds to suspect insolvency or a reasonable person would have been aware

CONSUMER LAW — misleading or deceptive conduct — contractual interpretation — price-capped gas contract — whether gas supplier represented that it would obtain third-party insurance — pre-contractual negotiations — cover email — two phone calls — whether “calculated ambiguity” in terms of contract — whether any ambiguity was exploited — significance of silence or non-disclosure.

NEGLIGENCE — Professional negligence — Solicitors — Breach of duty — Whether solicitor should have advised proceedings were hopeless and doomed to fail — Whether solicitor should have advised appeal lacked any arguable basis CIVIL PROCEDURE — Effect of grant of “liberty to apply” with respect to costs order — Uniform Civil Procedure Rules 2005 (NSW), r 36.16 — Time limit for application to vary final order — Procedural fairness — Whether primary judge ought to have reserved the question of costs

HEALTH — negligence — surgery — medical procedure on eye — liability of hospital for negligence of medical practitioners — tap and inject treatment for endophthalmitis — appellant alleges treating ophthalmic registrar made excessive number of attempts to tap vitreous fluid from eye — alleged failure to document procedure — submissions on whether failure to make clinical notes of procedure amounts to breach of duty — claim fails on the facts — no error in reasoning of trial judge demonstrated — failure to establish causal connection with harm allegedly suffered

CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant’s authorship of pseudonymous messages was an intermediate essential fact — whether evidence was sufficient to find that applicant sent messages CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge erred in leaving to jury a basis for conviction that represented a change in Crown case from opening — whether denial of procedural fairness — whether Crown case changed between opening and closing

HIGH RISK OFFENDER – preliminary hearing – serious sex offender – application for interim supervision order – where nature of one condition contested by defendant – interim supervision order imposed

ADMINISTRATIVE LAW – judicial review – denial of procedural fairness – whether consent orders should be made

CIVIL PROCEDURE − non-compliance with case management orders designed to ensure readiness for hearing – failure to relist matter in a timely manner following significant non-compliance with Court’s orders – extensions of time ordered

SUCCESSION — Family provision — Nature of orders — Apportionment of burden of provision — Settlement of family provision claim in which there was agreement between parties and consent from residuary beneficiaries regarding a lump sum provision for the plaintiff but dispute regarding the incidence of burden of the provision from residuary estate — Beneficiaries of one half share of the deceased’s residuary estate (4 niblings of the deceased, now D2-D5) contended that the deceased’s brother (now D6) the sole beneficiary of the other half share of the deceased’s residuary estate should bear the entire amount of the burden of the plaintiff’s provision (or alternatively the majority of the burden) — Held submission that the deceased’s brother bear the entire burden rejected —Deceased’s brother (D6) ordered to bear 70% of the provision burden with the remaining residuary beneficiaries the balance in specified percentages (D2 9%, D3 9%, D4 7% and D5 5%) SUCCESSION — Family provision — Parties — Principles regarding joinder of parties discussed — Whether beneficiaries should be joined to address apportionment of burden of provision (on facts – Yes) SUCCESSION — Family provision — Historical development of incidence and apportionment of burden principles outlined — Burden principles under s 65(1)(c) Succession Act discussed SUCCESSION — Family provision — Apportionment of burden of provision — Burden allocation is an evaluative decision to be determined on the relevant material facts including s 60(2) Succession Act factors unique to each case — Features of burden allocation discussed — The burden jurisdiction is not to be exercised to produce, in light of the order for provision, a per stirpes distribution to attempt put the respective generational families in a position where each family unit receives overall an equal part or division of the deceased’s estate WORDS AND PHRASES — Distribution per stirpes, distribution per capita, ‘Carriage order’, ‘just and equitable’

CIVIL PROCEDURE — notice to produce to the Court — claims for client legal and litigation privilege — waiver CIVIL PROCEDURE — subpoenas — claims for legal and professions privilege by third parties — waiver

BUILDING AND CONSTRUCTION – casino refurbishment – architect specifies “non-combustible” cladding for external façade – procurement concerns – builder and façade installer suggest aluminium composite panels (ACPs) instead – ACPs are “combustible” – casino and architect approve product substitution – construction drawings not updated – certifier unaware of ACPs – government requires ACPs to be replaced – casino sues builder for $4M remediation costs – builder sues architect, façade installer and its insurers – partial damages awarded. BUILDING CODE OF AUSTRALIA – 2014 and 2015 editions – fire-resisting construction – cl 2.4 – attachments – cl 3.1 – whether “combustible” materials can be attached to a Type A building – consideration at [48]-[62]. CONTRACT – façade installer gave warranty that works would be fit for purpose – whether installation of non-compliant ACPs on building breached warranty – principles at [386]-[387] – not fit for purpose. AUSTRALIAN CONSUMER LAW – whether “supply” by architect to builder absent contract between them – s 4(1) – principles at [251]-[256] – no “supply” – whether casino a “consumer” – s 3(10) – presumption that a consumer “unless the contrary is established” – whether architect represented to builder that ACPs were suitable to install on external walls by approving sample and shop drawings – whether statement of fact or opinion – whether representation as to a future matter. CONTRACT – Construct Only contract excluded “Design Responsibility” – warranty that works would comply with BCA – proper construction – multiple documents in same transaction – presumption against surplusage – commerciality – principles at [207]-[216] – warranty did not extend to non-compliance with BCA referable to tasks within “Design Responsibility”. NEGLIGENCE – economic loss – whether architect owed duty to builder – principles at [235]-[239] – builder lacked “vulnerability” – builder protected itself by excluding Design Responsibility in contract with principal. INSURANCE – “property damage” – whether attaching non-compliant ACPs to casino was “property damage” – principles at [398]-[405] – removing non-compliant ACPs left holes, gaps and damaged adjacent building elements – exclusions – principles at [414]-[416] - whether insured’s agreement with builder to exclude operation of Civil Liability Act was an assumption of liability regardless of fault – not so – whether insurers entitled to nonetheless rely on apportionable claims – not so – s 4, Civil Liability (Third Party Claims Against Insurers) Act 2017. DAMAGES – whether casino entitled to estimated or actual cost of remediation – actual cost less given remediation works undertaken together with other works – principles at [435]-[437] –actual costs is a more accurate award of damages and does justice between the parties.

GIFT of property – Elements of gift – Donor intention to make a gift – Donee intention to accept the gift – Delivery of the gift – Once an unconditional gift effectively made, freely and voluntarily, it cannot be recalled by donor

CIVIL PROCEDURE – Admissions – Withdrawal – unopposed amendment of Commercial List Statement during trial – whether amendment amounted to withdrawal of admission – construction of UCPR r 12.6(2) – rule does not apply to statements of claim – rule does not require provision of formal notice where court’s leave to amend a document is sought

CRIME — appeal against conviction — offence of aggravated sexual assault in company — Crown case that the co-accused physically and sexually assaulted the complainant to obtain drugs secreted in her vagina in a correctional centre — principles of joint criminal enterprise — whether the applicant’s plea of guilty to an alternative count removed proof of an element as a real issue at trial — whether trial judge’s directions on reckless infliction of actual bodily harm and sexual intercourse erred — no second limb error — appeal dismissed

CRIME – Appeal against sentence – supply large commercial quantity of prohibited drugs – partly motivated by drug and gambling addictions – diagnoses of substance use disorder and gambling disorder – mental health found not to be “causally connected to the offences in the relevant sense” – infelicity – drug and gambling addictions might provide an explanation for offending but do not operate in a mitigatory sense

CRIME — Appeals — Appeal against sentence — Whether sentencing judge’s characterisation of the applicant’s behaviour as methodical, calculated and systematic was unfounded on the evidence CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — Where applicant was diagnosed with Post Traumatic Stress Disorder and other mental health conditions — Whether sentencing judge failed to properly consider the applicant’s mental health conditions when assessing moral culpability and a causal connection with the offence CRIME — Appeals — Appeal against sentence — Manifest excess — Where sentencing judge found the objective seriousness of the offence was relatively high — Where comparative cases encompass a wide range of circumstances and severity of injury

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdict of guilty on one charge of sexual intercourse with a child under the age of 10 was unreasonable — where leave to appeal granted but appeal dismissed

CRIME – Appeals – appeal against sentence – where two co-offenders sentenced by the same judge 10 months apart – whether the absence of the co-offender’s subjective material before the sentencing judge caused the applicant’s sentence proceedings to miscarry – whether the sentencing judge erred in the consideration of objective seriousness – whether the sentence is manifestly excessive – leave to appeal granted – appeal dismissed

CIVIL PROCEDURE — Application for vexatious proceedings order — Whether plaintiff has frequently instituted or conducted vexatious proceedings in Australia CIVIL PROCEDURE — UCPR r 13.4 — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — Proceedings dismissed with costs

EVIDENCE – whether evidence not served in accordance with Court orders would cause unfair prejudice − whether an order under s 136 of the Evidence Act 1995 (NSW) could overcome any prejudice or unfairness – s 136 order imposed limiting reports’ operation – tender of some evidence rejected due to unfairness and prejudice

COSTS — costs order against non-party — s98(1)(b), Civil Procedure Act 2005 — plaintiff goes into liquidation while judgment reserved — successful defendant seeks order that the plaintiff’s sole director and shareholder be jointly and severally liable for costs — principles at [2]-[6] — whether in the interests of justice to make non-party costs order— director had earlier given undertaking to the Court to meet any adverse costs order against the plaintiff, to avoid an order for security for costs — non-party costs order made.

Obeid v The King Obeid v The King Macdonald v The King Criminal law – Conspiracy – Common law offence of conspiracy to commit misconduct in public office – Where accused charged on indictment with single count of conspiring together that one of them would wilfully commit misconduct in public office – Where prosecution did not allege agreement to do particular acts that amounted to misconduct in public office – Where prosecution case was that agreement to undertake acts fell within cumulative elements of charge – Whether prosecution put case at trial capable at law of amounting to conspiracy to commit misconduct in public office. Words and phrases – "but for", "conspiracy", "conspiracy to commit misconduct in public office", "conspirator", "conspiratorial agreement", "elements of conspiracy", "elements of misconduct in public office", "improper purpose", "misconduct", "misconduct in public office", "overt acts", "predicate offence", "public official", "serious and meriting criminal punishment", "wilfully misconduct". Mining Act 1992 (NSW), Pt 5.

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process — No issue of principle

PRACTICE AND PROCEDURE — Application for stay pending determination of proceedings in another jurisdiction.

EVIDENCE – Crown application to tender body worn video of the arrest – where the video will be used to impugn the accused’s credibility – whether the video is unfairly prejudicial

OCCUPATIONS — legal practitioners — solicitor’s practising certificate — whether Council of the Law Society of New South Wales entitled to make findings of misconduct when making renewal decision under Ch 3 of Legal Profession Uniform Law (NSW) instead of proceeding under Ch 5 ADMINISTRATIVE LAW — application for judicial review — decision by Council of the Law Society of New South Wales not to renew solicitor’s practising certificate and to appoint manager of law practice for period of 2 years — where practitioner is found to not be a fit and proper person — whether jurisdictional error or error of law on the face of the record — whether judicial review relief should be denied having regard to statutory right of appeal CIVIL PROCEDURE — whether notices to admit facts should be set aside — whether non-publication and suppression order should be made in circumstances where defendants apprehended publication of materials relating to proceedings for extraneous purpose

OCCUPATIONS — legal practitioners — solicitor’s practising certificate — whether Council of the Law Society of New South Wales entitled to make findings of misconduct when making renewal decision under Ch 3 of Legal Profession Uniform Law (NSW) instead of proceeding under Ch 5 ADMINISTRATIVE LAW — application for judicial review — decision by Council of the Law Society of New South Wales not to renew solicitor’s practising certificate — where practitioner is found to not be a fit and proper person — whether jurisdictional error or error of law on the face of the record — whether judicial review relief should be denied having regard to statutory right of appeal CIVIL PROCEDURE — whether notices to admit facts should be set aside — whether non-publication and suppression order should be made in circumstances where defendants apprehended publication of materials relating to proceedings for extraneous purpose

SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3

CORPORATIONS — directors and officers — appointment, removal and retirement of directors — employment of director purportedly terminated by executive chairman of another company — whether executive chairman had actual express or implied authority APPEALS — parties — obligation to join all persons directly affected by orders sought — appellants co-owned company and sought orders that employment contract between company and director validly terminated but joined neither to the appeal — joinder ordered

CIVIL LAW – high risk offender – urgent application for orders under the Terrorism (High Risk Offenders) Act – where defendant convicted of offences found to be motivated by hate and prejudice – anti-Israel graffiti – where area targeted suggests anti-Semitic attack – relevance of Magistrate’s findings – where Magistrate satisfied crimes motivated by hate and prejudice – assessment of risk – test to be applied on preliminary hearing – whether material if proved would justify the making of an extended supervision order CIVIL LAW – high risk offender – statutory construction – whether defendant’s current custody “will expire” before application determined – statutory pre-requisite to making an interim supervision order – meaning of “will” in statutory context – construction of statute to give effect to primary object of the legislation – whether words “appears to the Court” changes natural meaning of the phrase “will expire” – where Local Court sentence expires in many months – where appeal against severity pending in the District Court – where one possible result is that the sentence will be reduced to allow for defendant’s imminent release – whether “will” means “may possibly” – construction rejected – will expire amounts to a realistic inevitability

SUCCESSION — Family provision — Costs — Prospective costs capping orders — Novel contested application for costs capping in small estate post-mediation and prior to completion of interlocutory steps before allocation of any hearing date — No precedents of contested family provision capping orders being made at an early interlocutory stages — Parties’ current actual costs total $62,416 incl GST being approximately 46% of net estate of $135,674 — Held cost capping order is appropriate (amount that any party may recover from any other party, or out of the estate in these proceedings limited to $22,500 incl GST) SUCCESSION — Family provision — Prospective costs capping —Examination of and guidance regarding costs capping in civil litigation— Examination of family provision costs by reference to nature and purpose of the jurisdiction legislative and practice provisions, differences between family provision costs and costs in other civil litigation SUCCESSION — Family provision — Examination of historical antecedents of costs capping following final hearing of family provision claims — Consideration of quantum of costs in “standard” family provision and ‘uplift’ referable to success in conditional cost agreements SUCCESSION — Family provision — Prospective costs capping — Consideration and discussion of costs capping at early interlocutory stage — Consideration of what is ‘proper’ and ‘proportionate’ — The basis for early interlocutory capping may be justified by various sources including r 42.4 UCPR, s 98(1)(b),(3) CPA and s 99 Succession Act — Evidentiary and other materials discussed SUCCESSION — Family provision — Prospective costs capping — Prospective capping must be legally principled and involves an evaluative determination of relevant matters including proportionality considerations rather than being determined by fixed percentages or rules of thumb — The capping power serves various objectives including ensuring that the purposes of family provision jurisdiction are not frustrated or thwarted —There needs to be a sufficiency of materials on which the Court is able to make the evaluative assessment in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment. SUCCESSION — Family provision — Prospective costs capping — interlocutory costs capping orders under UCPR r 42.4 are subject to later variation where there are ‘special reasons, and it is in the interests of justice to do so’ — Comment (obiter) regarding ‘special reasons’ and ‘interests of justice’ SUCCESSION — Family provision — Discussion of party and practitioner obligations in light of legislative reform and cost concerns especially in small estates WORDS AND PHRASES — ‘Proportionality’, ‘Costs capping’ ‘Maximum costs’ ‘Protective costs order’

COSTS — costs orders in interlocutory proceedings — general rule that costs follow the event — application of the rule and discretion CIVIL PROCEDURE — alternative dispute resolution — referral to mediation

CORPORATIONS – Application to adjourn hearing of winding up application where company is in administration – where administrator preparing major report to creditors – short adjournment sought for administrator to provide major report to creditors – where there is minimal evidence of the identity of the creditors and their circumstances – where a short adjournment is in the creditors’ interest – adjournment granted

COSTS — Party/Party — Proceedings discontinued — whether there is reason to depart from the starting point as to costs in rule 42.19 of the Uniform Civil Procedure Rules 2005 (NSW)

PROCEDURE – security for costs – application for leave to appeal – security ordered against company in earlier proceedings at first instance – no need for special circumstances – no ability to assess prospects of appeal – estimated amounts of costs excessive – security ordered, in much smaller amount than sought

CIVIL LAW – contractual dispute – dispute over provision of internet routing services – consumer protection – application for urgent interlocutory relief – mandatory injunction requiring defendants to re-activate plaintiff’s routing service – whether plaintiff acted with due dispatch – where affidavit sworn on Thursday but application brought on Saturday – where defendant’s business located in Pennsylvania – discretionary considerations – whether plaintiff’s “usual undertaking” as to damages is enforceable – whether plaintiff’s loss cannot be compensated by monetary damages – lack of supporting evidence of plaintiff’s commitments to DFAT, ASIO and Australian Federal Police – Saturday AVL to Puerto Escondido – 🖕