Cases and authorities

COSTS - general rule that costs follow the event - whether any reason why costs should not follow the event - appellant successfully challenged judgment regarding Property (Relationships) Act 1984 (NSW) claim - appellant had three sets of legal representation - appellant self-represented at trial - appellant refused to allow valuation of foreign assets - whether refusal unreasonable - appellant raised legally untenable challenges to jurisdiction of court - unlikely that significant costs thereby incurred - costs otherwise offset - Civil Procedure Act 2005 (NSW), s 98 - Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2

LANDLORD AND TENANT - measure for calculation of loss of bargain damages on termination of lease for breach of an essential term - where owner takes possession and carries on business itself as entitled to do under the lease EVIDENCE - whether expert evidence rejected by trial judge on the grounds of relevance should have been admitted as going to potential basis for calculation of loss of bargain damages

[CORPORATIONS] - [RECEIVERS AND MANAGERS] - whether Receivers and Managers entitled to orders for delivery up of books and records of various Companies - whether asset of Company sold at undervalue [SHIPPING] - transfer of title of a Sunseeker Manhattan 62 pursuant to a Bill of Sale in accordance with the Shipping Registration Act 1981 (Cth) - registration certificate issued by Registrar of Ships - where boat valued at over $1 million and sold for $1 - whether sale in breach of statutory duties and fiduciary duties - whether boat held on trust by transferee

COSTS - cost assessment scheme - enforcement of cost certificates - cost certificates issued under ss 368 and 369 Legal Profession Act 2004 (NSW) PROCEDURE - perfected final orders - whether judgment was entered irregularly pursuant to Uniform Civil Procedure Rules 2005 - whether there is sufficient cause for judicial discretion to set aside judgment - principle of finality CORPORATIONS - application under s 459G Corporations Act 2001 (Cth) for order setting aside statutory demand - no matter of general principle

PROCEDURE- Costs- Security for costs - Security ordered- Quantum - Liberty to apply for variation of quantum reserved COSTS - Security for costs - Security ordered - Quantum - Liberty to apply for variation of quantum reserved

[CHILDREN] - application for approval of medical procedure in parens patriae jurisdiction where Minister has parental responsibility for child - where parents and Minister consent to treatment - responsibility of parents or those with parental responsibility - where Court order unnecessary.

TRUSTS AND TRUSTEES - Principles of construction of trust deed and notices under deed - Whether father's appointment of adult son as appointor and protector effective TRUSTS AND TRUSTEES - Office of appointor and protector - Whether power to appoint successor fiduciary or personal EQUITY - General principles - Undue influence - Whether applicable to appointment to an office under a trust deed

CRIMINAL LAW - bail - multiple offences - whether exceptional circumstances - whether bail should not be refused

DEFAMATION - imputations - objections as to form and capacity - whether plaintiff should have leave to replead imputations objected to

PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - No prima facie basis disclosed - No matter of general principle

Civil - Guarantee - Breach of duty of care - Consideration of Modderno v ANZ Bank [1999] NSWCA 13 - Misrepresentation of terms - Res Judicata and issue estoppel - Solicitor's authority to sign on behalf of the plaintiff - Consideration of Papailia v Romeo [2011] NSWSC 696

CORPORATIONS - management and administration - application for review of decision of trustees of creditors' trust deed to reject a claim for payment under the terms of a creditors' trust - whether the Court has jurisdiction to determine an appeal from the decision of trustees of a creditors' trust - Court's power to give a direction to a trustee under s 63 of the Trustee Act 1925 (NSW). LANDLORD AND TENANT - agreements for lease - creation - when lease took effect at general law - where lease is a deed which would not be binding until delivered - whether intention by the lessor to be immediately bound by the lease - whether lease took effect in accordance with s 8(2) Retail Leases Act 1994 (NSW) - whether lease was sufficiently complete to have effect. DAMAGES - whether damages for breach of contract established where damages sought are loss of profit making opportunity represented by an opportunity to occupy a shop under a lease - where conflicting expert evidence - whether basis for damages calculation established.

PROCEDURE - judgments and orders - order sought for proceedings or execution of judgment for possession to be stayed pending determination of other proceedings - whether the requirements of justice demand a stay - whether any prejudice to the respondent arising out of the grant of a stay - whether other proceedings would be stultified by declining a stay.

PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle

PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle

PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle

PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle

REAL PROPERTY - leases - operation of the Retail Leases Act 1994 (NSW) ss 5, 6A, 8 and 16, the Liquor Act 2007 (NSW) s 92 and the Registered Clubs Act 1976 (NSW) ss 41J and 41Q - whether a leasehold interest vests in a tenant notwithstanding illegality of the lease

PROCEDURE - notice of motion - leave sought to file amended defence - whether additional limitation defence affects the factual dispute between the parties and prejudice the plaintiff - whether amended defence is consistent with the overriding purpose of the Civil Procedure Act

COSTS - both parties enjoyed measure of success on appeal - no order as to costs - no occasion to alter costs order at first instance

COSTS - review of costs order at first instance where appeal allowed in part - costs of appeal where appeal allowed in part only - no matter of principle

CONTRACTS - construction - agreement between third party motor insurers for sharing of claims - whether particular circumstances within sharing provision

FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Taiwan - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Taiwanese court - birth mother has not given consent for purposes of NSW Adoption Act - where consent dispense order applied for - whether birth mother unable after reasonable inquiry to be identified or found - "reasonable inquiry" - held, in the circumstances, further inquiry not reasonable.

PROCEDURE - judgments and orders - application for approval of compromise - whether to approve terms of compromise in unique circumstances - damages agreed are not at, or near, high end of range - appropriate to approve terms of compromise in the interests of the plaintiff - no point of general principle.

PROCEDURE - application by defendant for dismissal of proceedings following failure by plaintiff to comply with orders to provide security for costs - plaintiff had not sought leave to appeal from the order for security, nor an extension of time for compliance nor taken steps to remedy his default - evidence permitted inference that plaintiff unable to fund proceedings - significant period elapsed in context of case since order for security made - inference available that plaintiff has no intention to comply with order for security - plaintiff given notice and aware of application for dismissal of proceedings - plaintiff subsequently ceased communication with defendant - appropriate case to order dismissal of proceedings and costs against plaintiff

PRACTICE AND PROCEDURE - application to strike out various paragraphs of plaintiff's amended statement of claim

EQUITY - breach of fiduciary duties owed to a company by a director - knowing assistance in a dishonest and fraudulent breach of fiduciary duty - test of causation for breach of fiduciary duty - equitable compensation for a lost opportunity CORPORATE LAW - breach of Corporations Act 2001 (Cth) s 181

CRIMINAL LAW - appeal against sentence - possession of prohibited firearms and weapons - whether less weight is to be afforded to good character in firearms offences - whether quantity of firearms increase the objective seriousness of individual offences - whether error in assessing the applicant's prospects of rehabilitation - whether marked disparity with sentence imposed on co-offender - whether court should intervene

CRIMINAL LAW - appeal - conviction - conduct of judge - adequacy of summing up to jury - whether defence case adequately put to jury - where no objection taken by defence at trial

CORPORATIONS - managed investment schemes - unlisted unit trust - terms on which units subscribed for provided for redemption after 12 months - whether that redemption a withdrawal from scheme to which Pt 5C.6 of the Corporations Act 2001 (Cth) applied - whether subscription agreement itself satisfied those requirements - whether s 601KB(3) requires that before making any withdrawal offer responsible entity must identify existing assets of scheme available to meet withdrawal requests CORPORATIONS - managed investment schemes - obligations undertaken by responsible entity "in its personal capacity" as distinct from "in its capacity as responsible entity" - whether liabilities arising from those obligations become liabilities of new responsible entity by s 601FS(1) - whether responsible entity entitled to indemnity from assets of scheme in respect of such liabilities CONTRACTS - construction - underwriting agreement by which units in an unlisted unit trust subscribed for -units to be redeemed after 12 months - whether issuer required to redeem as and when funds received from acceptances of public offer

BANKING AND FINANCE - loan facilities - several loans by lender to borrower - proceeds of sales of properties wholly applied towards repayment of loans - action by lender to recover outstanding balances - judgment given - whether interest correctly calculated - whether outstanding balance less than judgment sum - REAL PROPERTY - caveats against dealings - caveat lodged by lender on title to borrower's property over which it held no security - whether that caveat lodged without reasonable cause - whether borrower sustained loss attributable to lodgement of the caveat

EQUITY - Equitable set-off - mutuality not required - whether countervailing liabilities are sufficiently connected - identity of beneficial interest COSTS - where plaintiff wholly succeeded on its claim - where cross-claimant partly succeeded on cross claim - whether late amendment to pleadings should preclude recovery of costs

REAL PROPERTY - first defendant obtained three loans from plaintiff secured by mortgage over block of land - subsequently three defendants amalgamated their disparate blocks of land into one certificate of title - Register describes interest of each proprietor by reference to the previous folio as interim measure which creates folios of multiple ownership - three defendants chose not to progress with amalgamation - first defendant's loans fell into arrears - application by plaintiff for relief under s 66G of the Conveyancing Act 1919 to appoint trustees for sale - whether land the subject of the certificate of title can be in 'co-ownership' as defined by s 66F(1) of the Act - whether defendants entitled to an interest in the land of the other - certificate of title records ownership in terms of "of the part formerly in" - not a case in which defendants hold title as either joint tenants or tenants in common - relief not available under s 66G

PROCEDURE - application to summarily dismiss proceedings - dismissal for failure to prosecute with due despatch pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 - respondent to application in liquidation - whether leave is required pursuant to s 471B of the Corporations Act 2001 (Cth) - whether application for summary dismissal constitutes a "defensive" proceeding - whether security for costs should be granted

DEFAMATION - imputations - no question of principle

[CHILDREN] - where parental responsibility order made - where application pending to rescind or vary that order [CONFIDENTIAL INFORMATION] - where claim that person with parental responsibility induced to make disclosure of allegedly criminal conduct - where promise of confidentiality - where no notice of proposed use in court proceedings - where obligation to refer information as disclosed to Police [INJUNCTIONS] - where a serious issue to be tried in respect of circumstances where disclosure made - whether interlocutory injunction to be granted

CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application for adjournment - whether defendant lodged an appeal against the refusal of his legal aid application or that he intends to do so - adjournment refused

PROCEDURE - service of originating process out of State of New South Wales - whether service effective - where originating process no longer valid for service within the State - whether time within which process valid for service should be extended

PRACTICE AND PROCEDURE - application to dismiss proceedings for want of prosecution - appeal to the Supreme Court under s 69 of the Supreme Court Act 1970 from the Equal Opportunity Division of the Administrative Decisions Tribunal - no arguable grounds disclosed - summons summarily dismissed

APPEAL FROM LOCAL COURT - orders made for dividing fence, clearing of encroachments - whether error of law - whether procedural fairness afforded - appeal dismissed

MORTGAGES - possession - claim for writ of possession - borrower relies on tender by pretended bill of exchange - no genuine payment or tender - no basis for stay under r 6.17 of the Uniform Civil Procedure Rules 2005 PROCEDURE - default judgment - application to set aside default judgment for payment - pretended bill of exchange - no irregularity

BREACH OF TRUST - repayment of money received in breach of trust - satisfaction of condition - breach of deed - estoppel - termination of deed - summary judgment - satisfaction of test for summary judgment.

COSTS - practice and procedure - where proceedings between plaintiff and defendant settled - where dispute arose between plaintiff's solicitor and plaintiff's former solicitor as to costs - whether conduct of plaintiff's solicitor contributed to wasted costs incurred by the defendant - whether conduct of plaintiff's former solicitor also contributed to wasted costs incurred by the defendant COSTS - costs against legal practitioner personally - necessity for the circumstances of the case to be clear before such an order is made - necessity for the conduct on the part of the legal practitioner to be causative of wasted costs - where unreasonable conduct on the part of the legal practitioner was partly the cause of wasted costs

APPEAL - application for leave to appeal - costs - applicant a vexatious litigant - whether challenge to costs order in Land and Environment Court excluded from the prohibition on bringing proceedings without leave - challenge to be heard together with application for leave to appeal from vexatious litigant order

CORPORATIONS - external administration - winding up - winding up in insolvency - application to set aside statutory demands under s 459H and s 459J - adequacy of description of debt claimed - whether genuine dispute as to existence of debt or amount or any offsetting claim.

CONTRACTS - general contractual principles - formation of contractual relations - matters not giving rise to binding contract - vagueness and uncertainty - agreement contemplating execution of formal document to contain such additional terms as mortgagee "may require" MORTGAGES - mortgage contract - agreements for mortgage - agreement contemplating execution of formal document - formal document to include such additional terms as mortgagee "may require" - whether uncertain EQUITY - equitable remedies - specific performance - jurisdiction and availability - particular contracts - agreements to give security EQUITY - equitable remedies - specific performance - relevant considerations and defence matters - uncertainty and ambiguity

EVIDENCE - tender of computer records from adult dating site - whether unfairly prejudicial - whether material probative of a fact in issue

REAL PROPERTY - compulsory resumption of substratum land - operation of the Community Land Development Act 1989 (NSW) ss 53, 57 - no issue of general principle

DEFAMATION - whether proceedings an abuse of process - where plaintiff the subject of referral to ICAC in respect of the same matter - defences - absolute privilege - whether defence so plainly available as to warrant summary dismissal of plaintiff's claim - whether defence adequately pleaded

PRACTICE AND PROCEDURE - civil - whether jurisdiction to enforce orders made by Consumer, Trader and Tenancy Tribunal - no jurisdiction