Cases and authorities

CORPORATIONS - Statutory demand - application to set aside under s 459H - genuine dispute - whether plaintiff became liable to defendant by novation - novation not established - genuine dispute that debt not owed by plaintiff

PROCEDURE - Summary Termination - Application to strike out defence - Serious issues whether extension of time validly made, whether defendants estopped from asserting to the contrary, and whether a notice of rescission can rely upon any ground extant at the time - Whether principles in relation to summary termination of a plaintiffs proceedings apply equally to the striking out of a defence

EXECUTORS – Administration of estates – where joint executors in dispute as to application of proceeds of estate property - where two of three joint executors had appropriated for own benefit sum set aside for legatee – costs.

LIQUOR AND GAMING – Poker machine entitlements – Poker machine authorisations – social impact assessment – whether requirements of Gaming Machines Act s 33(2)(a) and (b) are cumulative or alternative - whether transferee hotel must be licensed when SIA provided - whether there must be pending application to transfer PMEs when SIA provided – whether person who has neither applied for nor been granted licence of subject premises has standing to provide SIA.

PROCEDURE – leave to amend – on day 8 of hearing – where issue flagged by defendants at opening – where cross-examination proceeded on basis that proposed new issue not in case – whether new issue triable

REAL PROPERTY [310]- Sale or partition- Plaintiff equitable co-owner seeking sale under s 66G of Conveyancing Act- Fifth defendant claims that sale incompatible with partnership deed- Fifth defendant not a party to the partnership deed- Other co-owners opposing plaintiff's proposed method of sale- Order for sale made on basis to accommodate all parties.

Stay of civil proceedings during pendency of criminal proceedings - Principles - Right to silence - Likelihood of future publicity - Proximity of criminal hearing - Possibility of miscarriage of justice

PROCEDURE – Adjournment – late application for leave to amend – where both parties responsible – when application to amend requires investigation of facts

Practice and procedure - Application to recall reasons for interlocutory judgment - Principles

PERSONAL PROPERTY – Bailment – wine – contract for winemaking services – growers deliver grapes to winemaker – winemaker’s lessee re-enters – claims to be entitled to wine – whether contract between growers and winemaker bailment for work and labour, or sale and resale of goods – whether property passed to winemaker.

PROCEDURE - Costs - Plaintiff's offer to accept specified amount plus costs and disbursements to be advised - No advice - Whether offer capable of immediate acceptance as an offer of an amount plus costs to be assessed or agreed - Where Calderbank v Calderbank (1975) 1 All ER 333 should be followed

CONTRACTS [142]- Contract that charge existed if the defendant's representations and warranties were incorrect and misleading- Defendant said it had a valuation report which said land worth $1.4 million- True value nearer $700,000- Valuation never relied on by plaintiff- Held no incorrect representation or warranty.

MORTGAGES - Mortgages and Charges generally - Equitable charge - Proper construction of loan agreement - Whether charge covered legal fees and expenses of recovering fees and expenses as defined

COSTS – Specific performance – decree obtained in absence of proof of breach or apprehended breach – whether plaintiff should be allowed costs – where decree was opposed – insufficient reason to deprive successful plaintiff of costs

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Equitable life interest based on proprietary estoppel alleged - Whether construction cost arising under serious question to be tried - Whether balance of convenience favours continuation of caveat - Defendant wishing to refinance - Plaintiff not averse to clearing title to allow new mortgage to be registered

CORPORATIONS – Application under s 447A of the Corporations Act 2001 (Cth) for a modified application of s 443A(1)(a) to enable administrator to incur obligations without personal liability to facilitate company’s business to continue as a going concern so as to benefit creditors

CORPORATIONS – Application under s 459G, or s 459H or s 459J(1)(b) of the Corporations Act 2001 (Cth) to set aside statutory demands – Moneys advanced for the purchase of shares and options and used for that purpose – Whether genuine dispute or countervailing claim arising from purported representation that lender would not, absent event of default, exercise its right to repayment until a particular date – Loan contract entitled lender to demand repayment without default – Where damages sought in offsetting claim, some evidence supporting quantum must be adduced – No evidence that borrower’s position was worse than it would have been had it not borrowed the money – No direct or indirect indication that lender would not enforce its contractual rights – No genuine dispute as to existence of debt

COSTS – Interlocutory costs order – whether should be assessable forthwith - PROCEDURE – Pleading – application to strike out – late application – liberal view taken of pleading

Costs - Stay of proceedings - Defendants seek a stay of the proceedings pending payment by the first plaintiff of the outstanding costs in other proceedings before this Court and the Court of Appeal between Mr Green and AMP Life - alternatively, a stay pending the payment of security for costs

FAMILY LAW – de facto relationship – costs – whether costs should follow the event – relevant considerations – substantial success – adjustive order below jurisdictional limit of Local Court. - COSTS – proceedings under Property (Relationships) Act 1984 – whether costs should follow the event – relevant considerations – substantial success– adjustive order below the jurisdictional limit of Local Court.

PROCEDURE - Miscellanous procedural matters - Amendments - Application at trial to amend defence to withdraw an admission - Earlier successful application to amend defence to cross claim raising new issues including a limitation point - Prejudice limited to preparation of case on assumption no evidence needed on admitted issue - Whether all issues between the parties should be ventilated

EVIDENCE – Opinion – expert – whether architect qualified to give evidence of reasonable refurbishment of commercial building – Makita v Sprowles – whether basis of opinion sufficiently explained – EVIDENCE – valuation – where evidence tendered as to experience of noise in “comparable” apartment – where ample evidence already tendered of noise experience in more readily comparable apartments – undue waste of time

PROCEDURE [558]- Costs- Co-defendants- Where deed of settlement provided for second defendant to pay "costs of proceedings"- Whether that includes costs of plaintiff's action against first defendant.

[MEDIATION] - consensual referral to mediation - order that parties share equally in costs of mediator - mediation unsuccessful - parties settle subsequent to mediation on basis including an order that the defendant pay "the plaintiffs' costs of these proceedings" - application by plaintiffs for order that "costs incurred by the plaintiffs in connection with the court ordered mediation be costs of the plaintiffs of the proceedings on a party/party basis".

REAL PROPERTY – land under Real Property Act – Caveats – Caveats against dealings – where lodged by solicitor claiming interest under contract to which solicitor is not party – where evidence refutes solicitor’s claim to have lodged caveat in interests of his former clients

PROCEDURE - Costs - Discrete aspect of case concluded - Damages to be determined by an Associate Justice - Whether costs should be paid forthwith or reserved until judgment entered

MORTGAGES [50]- Remedies of mortgagee- Power to sell- Statutory notice before exercise- Mortgagor in default because of insolvency- Mortgage provides that on such default mortgagee may sell without notice- Held clause sufficient to activate s 58A of the Real Property Act 1900- Mortgagee can exercise power of sale without notice.

CRIMINAL LAW - Practice and Procedure - Application for special leave to High Court - whether trial should be stayed.

PROPERTY – Choses in action – assignment – (NSW) Conveyancing Act s12 – assignment “subject to all equities” – equities include set-offs, cross-claims and counterclaims – whether such equities extend to cross-claims in excess of amount of assigned obligation so as to entitle obligor to judgment for damages against assignee

PROFESSIONS [76]- Lawyers- Challenge to retainer- Solicitors retained by General Secretary of plaintiff association- General Secretary had no authority to commence actions on behalf of association- Held retainer invalid.

CORPORATIONS – Application under s 247A(1)(b) and (2) of the Corporations Act 2001 (Cth) by a shareholder for an order authorising inspection of company’s books – Shareholder neither nominal nor recent – Inspection in good faith and for proper purpose – Where documents commercial in confidence copies not to be taken without prior consent or order of the Court - Liberty to apply

CONVEYANCING [114]- Vendor's lien- Balance of purchase price unpaid at completion- Interest payable at 10% on purchase price if unpaid- Vendor's lien exists not only for unpaid purchase price but also to interest on it- Judicial sale appropriate means of enforcing lien- Procedure for judicial sale orders considered.

PROCEDURE - Costs - Plaintiff obtained declaration that it validly rescinded a contract for sale of land but failed in a claim for damages for maintenance of the caveat on unreasonable grounds - Defendants rejected offer of compromise that included payment of costs fixed at $11,500 - Whether defendants unreasonable in rejecting offer - Whether plaintiff entitled to some costs

EVIDENCE [172]- Presumption of death- When presumption will arise- Defendant last seen in 1980- Evidence sufficient to presume defendant's death for purposes of s 101 of Real Property Act 1900.

LANDLORD & TENANT [51]- Rent- Rent review clauses- Reference to valuer- Valulation to be and to be set out in accordance with s 19 of Retail Leases Act 1994- Not mandatory that valuation be provided within one month of reference to valuer- Valuation flawed due to absence of detailed reasons.

JURISDICTION – Cross-vesting – Transfer of proceedings – between State Supreme Courts – relevant considerations – breach of confidence – when duties arose in NSW but breaches mainly occur in Queensland – where plaintiff resides in NSW and first defendant resides in Queensland.

Practice and Procedure - Stay orders

PROCEDURE – Orders setting aside or varying – liberty to apply

CIVIL PROCEDURE – Pt 12 r 12.4 of the Uniform Civil Procedure Rules 2005 (NSW) – Stay of further proceedings to secure costs of discontinued proceedings – Director transfers rights under directors’ and officers’ liability insurance policy to registered trustee by way of deed of arrangement under Pt X of the Bankruptcy Act 1966 (Cth) – Director previously sued on insurance policy for defence costs in prior discontinued proceedings – Trustee presently sues, in respect of director, on insurance policy for compensation order – Defendant’s defence in prior discontinued proceedings and in current proceedings is an entitlement to avoidance on the basis of fraudulent misrepresentation or non-disclosure – Whether congruity of plaintiff – Whether the same or substantially the same cause of action

PROCEDURE - Costs - Issues abandoned by plaintiff at beginning of trial - Plaintiff successful - Whether plaintiff should pay costs of the abandoned issues

EQUITY – Equitable defences – clean hands – where agreement of which enforcement sought involved procuring a breach of trust – where cross-defendant declines to plead want of good hands – discretion of court - washing hands – where no suggestion of cleansing until closing submissions. COSTS – offer of compromise – where costs of proceeding increased by successful offeror’s pursuit of issue on which it fails.

EQUITY [334]- Equitable remedies- Injunctions- Interlocutory injunctions- Evidence that notice was sent sufficient to establish arguable case- Balance of convenience considered- Injunction granted. LANDLORD & TENANT [39]- Option to renew- Plaintiff tenant to give landlord notice of intention to exercise option by certain date- Plaintiff says notice sent to landlord's solicitor- Alleged that notice never received- Notices sent in accordance with usual office procedure are presumed to have reached their destination unless there is evidence to the contrary- Therefore case to go for trial on the facts.

SPECIFIC PERFORMANCE – supervision of contract – application for orders regulating internal affairs of defendant corporation so as to secure compliance with order for specific performance – internal steps not steps in performance of contract – application refused

SUCCESSION - family provision - claim by adult daughter - no question of principle

Corporations - Winding up of Macquarie University Students' Council Incorporated - Incorporated Association under the Associations Incorporation Act 1984 (NSW) - Students' Council no longer viable - Students' Council unable to pay its debts - Just and equitable grounds for Students' Council to be wound up

PROCEDURE [598]- Costs- Departing from general rule- Plaintiff obtained relief under the Ex parte James principle having failed on its principal arguments- Whether seeking indulgence- Liquidators of second defendant seeking to protect a fund- Appropriate in circumstances for plaintiff to pay second defendant's costs.

REAL PROPERTY – Easements – obstruction – gateposts – width of aperture

EVIDENCE – on claim for damages for misleading and deceptive conduct – where plaintiff claims to have purchased property in reliance on misrepresentation as to use of adjoining amusement park and in particular location and operation of thrill rides – whether evidence of noise experience when park opened after purchase completed admissible – measure of damages for misleading conduct – rule in Potts v Miller – EVIDENCE – on claim for injunction to restrain use of amusement park in contravention of Crown Lands Act s 114 and Plan of Management – where by statute no remedy is available in respect of emissions of noise from park and such emission is not a nuisance – whether evidence of noise relevant to discretion to grant injunction