Cases and authorities

CORPORATIONS - voluntary administration - second creditors' meeting - extension of convening period - applicable principles - whether there should be evidence of views of members of committee of creditors

CRIMINAL LAW - extension of supervision order - order made

CONTEMPT – where orders made by consent by Registrar pursuant to (NSW) Family Provision Act 1982, s 7 for provision out of estate – whether failure to pay by defendant executor is punishable contempt of court – “criminal contempt”. - FAMILY PROVISION ACT 1982 – enforcement – nature of orders made pursuant to section 7 – whether an order of the court or a codicil to relevant Will.

CONTRACTS - Management agreement - breach - defendant's failure to comply with statutory conditions for a licence constituted breach of Management Agreement where possession of licence a condition of the Agreement - whether serious breach of a material obligation.

CONTRACTS – general contractual principles – construction and interpretation of contracts – application by purchaser to continue interlocutory injunction restraining vendor from claiming payment pursuant to bank guarantee – where vendor had entered into heads of agreement with a potential tenant prior to exchange of contracts – where prospective tenant decided before settlement not to enter into lease – where contract required vendor to notify purchaser of proposed dealings with leasehold – whether heads of agreement amounted to agreement to lease or equitable lease – whether arguable case for final relief demonstrated by purchaser

REAL PROPERTY – Encroachments – Garage – Dividing Fences – where order made by Local Court under Dividing Fences Act 1991, s 14 for fencing work – where one adjoining owner obstructs fencing work – whether Supreme Court can restrain obstruction in aid of statutory right of other owner

REAL PROPERTY – TORRENS TITLES – CAVEATS – BANKRUPTCY – caveatable interests – where bankrupt transferred joint tenancy interest in land to spouse for $1 consideration – where trustee of bankrupt estate issued a notice pursuant to Bankruptcy Act 1966, s 139ZQ, to bankrupt’s spouse – where notice set aside but appeal pending to Federal Court – where caveat claims “equitable interest” – where application to Court made for the purpose of extending operation of caveat in aid of appeal in Federal Court – whether caveator's claim in the caveat "has or may have substance" – test for determining whether claim "has or may have substance" – whether nature of interest was sufficiently described in the caveat – whether caveator sufficiently complied with (NSW) Real Property Regulation 2003, cl 7 – whether Bankruptcy Act, ss 120 and 121 create a caveatable interest – whether charge created by Bankruptcy Act, s 139ZR(1) is a caveatable interest – where s 139ZR(1) charge did not exist at time caveat lodged – where caveat discloses no connection with s 139ZR(1) – DISCRETIONARY CONSIDERATIONS – where trustee has not administered bankrupt estate or brought proceedings expeditiously – whether more appropriate remedy to aid appeal in Federal Court is to seek an interlocutory injunction from that Court – where sufficient security retained for trustee’s claim.

EQUITY – equitable remedies – specific performance – defences – impossibility – where purchaser does not have funds available to complete purchase – discretionary considerations – where purchaser owns other assets, including an interest in a former matrimonial home to be sold pursuant to court order and it is expected that the proceeds will be sufficient to complete contract – where purchaser is otherwise unlikely to obtain finance – hardship – whether difficulty in finding the purchase money amounts to hardship or impossibility - CONTRACTS – penalties – whether provision requiring payment of second instalment of deposit upon completion date is void as a penalty - COSTS – costs follow the event

PROCEDURE – application to reopen case after judgment reserved – relevant considerations – whether evidence sought to be adduced relevant only to a collateral issue

Frivolous and vexatious proceedings struck out

INDUSTRIAL LAW – Chief Industrial Magistrate’s Court – Jurisdiction – Transfer of proceedings to Supreme Court – Civil Procedure Act 2005, s140(1).

PROCEDURE – judgments and orders – setting aside – where judgment given in absence of party.

COSTS – indemnity costs – offer of compromise – where Calderbank offer made otherwise than in compliance with rules – where plaintiff betters offer – where offer open only for short period.

PROCEDURE – judgments and orders - amending, varying and setting aside – where judgment already given but not entered – general principles on applications to reopen case to adjust judgment sum in light of issue previously overlooked – whether defendant trustee can claim interest on funds advanced to trust – whether defendant should be permitted to claim reimbursement of costs incurred in other proceedings – EQUITY – general principles – remedies – tracing – where property to which plaintiffs held entitled in equity is traceable into defendant’s property – whether defendant holds property subject to a charge – whether Court should declare charge – TRUSTS – (NSW) Trustee Act 1925, s 93 – whether proceeding “with respect to the management or administration of any property subject to a trust” – PROCEDURE – costs – indemnity costs – whether first defendant’s conduct of case amounted to abuse of process – where offer of compromise made by plaintiffs – whether offer could only be relevant if accepted by both defendants – PROCEDURE – costs – general rule – costs follow the event – whether second defendant should pay or receive costs where no judgment given against him – where second defendant nonetheless failed on many issues raised by him and was cause of litigation

Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether section 14 (3) of the Act permits incorporation by reference into a payment schedule - Whether respondent’s payment schedule indicated, within the meaning of s. 14 (4) of the Act as reasons for withholding payment, the reasons contained in an anterior payment schedule - Whether the Adjudicator made an error of a character that was within his jurisdiction - Whether the Adjudicator’s findings constitute a failure by the Adjudicator to comply with the requirements contained in s.22(2)(d) of the Act - Whether Adjudicator denied natural justice - Whether the Adjudicator failed in good faith to exercise the power to make an adjudication.

ESTOPPEL [32]- Proprietary estoppel by encouragement- Plaintiffs allege a series of promises was made to them by the deceased that "they could live on the deceased's property for the rest of their lives" in consideration of them maintaining the property and performing personal services for the deceased while the deceased was alive- Corroboration desirable to make out a claim against a deceased estate virtually absent in this case- Necessity of sufficient link between the promises made and the work performed- Case fails on the facts.

MORTGAGES - Mortgages and Charges Generally - Rights and Liabilities of Mortgagor and Mortgagee - Mortgages to bank secured debt to bank of A and B - Mortgages transferred by bank to B as trustee for others - Whether debt of B discharged - Whether by analogy with equitable setoff debt and mortgage had to be in the same interest to be discharged

INTERLOCUTORY INJUNCTION – EMPLOYMENT CONTRACT – RESTRAINT OF TRADE – whether seriously arguable case – balance of convenience – where plaintiff sought relief a week after becoming aware of purported breach of contract.

COSTS – costs assessment – appeal and review – substitution of Court’s decision for Assessor’s – nil assessment

EQUITY – trusts and trustees – trustees right of indemnity – equitable liens – where trustee removed upon winding up pursuant to trust instrument and new trustee appointed – whether causes of action in other proceedings to recover loans are trust assets – whether removed trustee can retain possession of assets to secure indemnity pending determination – whether right of indemnity survives transfer of trust assets to new trustee – whether a removed trustee is entitled to retain assets as against a new trustee to secure its indemnity

PROCEDURE – DISCOVERY – CONFIDENTIAL COMMERCIAL INFORMATION – where defendants have masked certain parts of discovered documents and object to producing other documents – claim of commercial confidentiality does not prevail against an order for discovery – whether a party giving discovery can mask documents discovered – protective measures employed by courts to protect confidential commercial information – public policy considerations – where plaintiff claims injunctive relief and an account of profits – whether defendant needs to discover documents relevant only to an account of profits before liability is established – whether a reconstructed list of customers complies with discovery obligation – whether defendants can mask information relevant to pricing of products sold by the plaintiff – whether plaintiff should be granted leave to expand classes of discovery – whether defendants should be directed to depose as to the circumstances in which Schedule 2 documents were discarded before discovery was ordered - PROCEDURE – DISCOVERY – PRIVILEGE – third party communications - PROCEDURE – SUBPOENAS – whether granting plaintiff access to documents produced by telephone service provider amounts to giving the plaintiff access to confidential client list

CORPORATIONS – Corporations Law 2001 (Cth) chapter 5A – deregistration and reinstatement of company – effect on caveat under Real Property Act 1900 (NSW) lodged before deregistration and on orders for extension made by Court while deregistered where company subsequently reinstated – application that orders for extension be vacated refused

COSTS - security for costs - discretion - whether, if ordered, plaintiff able to pay security for costs - whether plaintiff's impecuniosity was caused by the defendant's conduct, the subject of proceedings - whether an order for security for costs would stultify proceedings - whether security for costs should be ordered against a party who is, in substance a defendant.

CAVEATS - loan agreement and contemporaneous caveat - borrower authorises lender to lodge caveat against her land title - principle in Troncone v Aliperti distinguished, where caveat asserted that loan was "unsecured"

CONTEMPT – where defendant allegedly in contempt for not returning deposit to plaintiff upon plaintiff delivering up possession of property pursuant to Court order – whether Court can hear application by alleged contemnor – whether decision of Court to hear application discretionary – where UCPR, r 36.5 applies – where plaintiff notified defendant of delivery up of possession of property on evening after defendant notified application for stay of order.

CORPORATIONS - winding up - application to terminate winding up - failure of liquidators to provide financial information - grounds for order under s 482(2) requiring liquidators to furnish a report to the court

PRACTICE AND PROCEDURE - Tender of documents on interlocutory application - Whether documents part of public domain -

REAL PROPERTY – residential park – encroachments on neighbouring property – order for removal not opposed by park owner or tenants – stay – whether stay should be granted pending outcome brought by tenants against owner in Consumer Trader and Tenancy Tribunal – where defendants are tenants of residential park – whether proposed orders might affect rights under residential parks legislation – whether adjacent owner is “person having superior title” to park owner – whether adjacent owner “becomes entitled to possession” as a result of proposed order – discretionary considerations.

Notices to produce - Rights of audience - Counsel refused leave to appear on defendants' behalf where purporting to be instructed by solicitors who had ceased to act - No such thing as a 'Claytons solicitor'

CORPORATIONS – statutory demand – application by plaintiff to set aside the defendant’s statutory demand under s 459G of the Corporations Act 2001 (Cth) – the defendant alleges an agreement between the parties under which the defendant is entitled to be paid consultancy fees – the plaintiff denies the existence of any agreement, or alleges a failure of consideration or performance by the defendant –statutory demand accordingly set aside on grounds that genuine dispute established

PROCEDURE – application to amend Statement of Claim – whether plaintiff has sufficiently particularised claim against defendants – where plaintiff endeavours to preserve ability to enlarge claim

COSTS - where proceedings settled - plaintiff obtained both interlocutory and final relief - costs follow event but with reduction to reflect plaintiff's unreasonable demands.

PARTNERSHIP [8]- Rights and duties of partners inter se- Articles and terms of partnership- Option to purchase assets of partnership in event of, inter alia, bankruptcy of one partner- Bankruptcy occurs after expiration of fixed term partnership agreement- However continuation of partnership effected by s 27(1) of Partnership Act- Option validly exercised.

PROCEDURE – EVIDENCE – Subpoenas – setting aside – legitimate forensic purpose – whether necessary for issuing party to establish that “on the cards” that documents will materially assist its case, or only that they may throw light on issues in the case

PROCEDURE – costs – departing from the general rule – application by unsuccessful defendant – where several offers of compromise made but not in accordance with the (NSW) Uniform Civil Procedure Rules – relevance of such offers to exercise of discretion in respect of costs – where defendant achieved substantial success in part of cross-claim – whether costs should reflect defendant’s success on particular issues - PROCEDURE – costs – interlocutory proceedings – costs in respect of defendant’s application to reopen main proceeding – where plaintiff unsuccessfully opposed reopening but defendant required indulgence from the Court – where plaintiff contributed to necessity for reopening – relevant considerations - PROCEDURE – costs – whether sum payable by plaintiff to defendant should be paid into court pending assessment of costs payable by defendant to plaintiff

CORPORATIONS – Application to terminate winding up under s 482 of the Corporations Act 2001 (Cth) – Winding up initially stayed to allow resolutions to be passed and then terminated

CONTRACTS [248]- Auctioneers- Plaintiffs claim auctioneer knocked property down to their representative- Contract signed with another bidder- Whether plaintiffs may seek extension of caveat or injunction- Held no note or memorandum in writing evidencing a contract of sale between plaintiffs and vendor under s 54A of Conveyancing Act 1919. STATUTES [131] Regulations- Whether auctioneer had statutory obligation to sign contract as plaintiffs were highest bidder pursuant to reg 18 of Property, Stock and Business Agents Regulation 2003- Held regulation is procedural and does not affect the contractual rights of vendor and purchaser.

PROCEDURE - Access to Third Party Documents - Proceedings under the Family Provision Act 1982 - Defendant executrix and deceased owed moneys to Centrelink for wrongly claimed age pensions - Plaintiff alleged she discharged the liabilities - No claim as yet on the estate -The Social Security (Administration Act 1999 (Cth), s 207 prevents an officer producing any document in possession because of performance of duty under the social security law - Whether the defendant should be ordered to sign an authority to Centrelink and the Social Security Appeals Tribunal to produce files to the plaintiffs' solicitors - Authorities establish a default is entitled to such an order against a plaintiff - Whether same principle applies to a plaintiff seeking such an order from a defendant

COSTS – where plaintiff fails against one defendant on Contracts Review Act claim but succeeds against solicitor for professional negligence – whether solicitor should be liable for costs plaintiff must pay successful defendant

CONVEYANCING – deposit – whether deposit less than 10% accepted. - AGENCY – real estate agent – whether authorised to accept less than 10% deposit. - AGENCY – duties – real estate agent – to communicate relevant information to principal – to assiduously endeavour to elicit best offer – to obey instructions. - EVIDENCE – cross-examination – significance of absence of cross-examination in case conducted on affidavit evidence. - EQUITY – estoppel – promissory estoppel – whether failure to afford party in default an opportunity to rectify breach is unconscionable – whether loss of such opportunity is relevant detriment. - EQUITY – relief against forfeiture – deposit – Conveyancing Act s 55(2A). - COSTS – where defendant succeeds on plaintiffs’ claim – where cross-defendant responsible for litigation – whether cross-defendant should indemnify plaintiff.

PROCEDURE – Stays – stay pending appeal – winding up order

BANKRUPTCY [205]- Proceedings commenced by bankrupt before sequestration- Effect of bankruptcy on proceedings- Trustee did not elect to prosecute action- Whether bankrupt may continue proceedings in his own name- Whether action is in respect of any personal injury or wrong done to the bankrupt- Held a claim that is connected with or that is consequential to a property claim is not a personal injury claim for the purposes of s 60(4) of the Bankruptcy Act 1966 (Cth).

PROCEDURE – Amendment – Late amendment which would if granted jeopardize hearing – where amendment would raise arguable complete defence. - PARTIES – joinder – where defendant surety wishes to take advantage of a defence by way of set off or counterclaim that would be available to principal – whether principal may be joined as co-defendant – preferable course to allow cross-claim to be brought.

PROCEDURE - Payment into Court - Offer to lodge in Court a guarantee for $250,000 as security for any amount held to be due to second defendant in consideration of order that second defendant discharge her mortgage over property - Argument that plaintiff's entitlement to payment for costs of construction exceeded the second defendant's loan - argument that plaintiff entitled to setoff the one against the other - Construction costs not determined under dispute resolution provisions - Whether can offset an unliquidated claim against a liquidated one

CORPORATIONS – Application under s 459G of the Corporations Act 2001 (Cth) (“the Act”) to set aside statutory demand – Moneys advanced for purchase of shares and options – Loan facility entitled lender to demand repayment absent default within 5 days of notice being given – Lender “closed out” borrower on grounds that borrower was acting in accordance with a strategy impermissible under the loan facility – Borrower contends that lender led borrower to believe strategy was permissible, raising an arguable conventional or promissory estoppel or misleading and deceptive conduct in contravention of either the Trade Practices Act 1975 (Cth) the Australian Securities and Investment Commission Act 2001 (Cth) or the Act – On the plaintiff’s case detriment less than loan debt owed – Whether genuine dispute as to existence of debt or offsetting claim for equitable compensation – Demand varied by reducing amount to maximum detriment demonstrated

COSTS - statutory demand set aside by consent after judgment upon which demand was based set aside on appeal - no good reason why costs should not follow the event.

SUCCESSION - Executors and Administrators - Proceedings by executor or administrator - Advice under the Trustee Act 1925, s 63 - Whether justified in completing a sale of property at $1.55 million - Acrimonious proceedings on foot - Whether court should give advice on a commercial decision thereby exonerating the administrator

Evidence - transcripts of Police Royal Commission - business records - police verbal - previous representation - Royal Commission not a proceeding - Pt 31 r 31.9 Uniform Civil Procedure Rule 2005 - cross-claim against former police officer - future proceedings - State not entitled to protection of s 17(2) Royal Commissions Act 1923 - s 63 Evidence Act - reasonable steps to find witness - s 135 Evidence Act - - no unfair prejudice when State could take reasonable steps to remove prejudice.