Cases and authorities

CORPORATIONS - application under ss 459G, 459H(1)(a) and 459J(1)(b) of the Corporations Act 2001 (Cth) for order setting aside statutory demand - whether Graywinter principles apply to preclude reliance on grounds not expressly or by inference identified in supplementary affidavit - whether genuine dispute as to existence and amount of debt and offsetting claim - whether "some other reason" established for the purposes of s 459J(1)(b) - HELD - Graywinter principles applied - statutory demand reduced pursuant to s 459H(4) but not set aside - genuine dispute as to amount of debt - no genuine offsetting claim identified in affidavit material - no "some other reason" for the purposes of s 459J(1)(b)

COSTS - criminal proceedings in the Children's Court - where charges withdrawn and dismissed - no prima facie case on one out of six charges - whether magistrate erred in dismissing costs application.

PROCEDURE - Costs - general rule costs follow the event - no question of principle.

PROCEDURE - Miscellaneous procedural matters - application to re-open plaintiff's case - Court has given two judgments in the proceedings- application to re-open made before the second judgment - HELD - scope of proposed re-opening limited - no prejudice or embarrassment to the defendants -re-opening will avoid need for separate proceedings - leave to re-open granted.

PROCEDURE - costs - where applicant comprehensively unsuccessful but achieving success on one claim - costs to be apportioned - whether indemnity basis appropriate - whether there should be interest on costs

PROCEDURE - costs - defendant does not resist application for order setting aside statutory demand - whether defendant should have withdrawn demand before proceedings commenced - what costs order appropriate

Request for documents and examination of overseas proceedings – request cannot be in the nature of discovery – whether request so broad as to amount to discovery – discovery underway in overseas proceedings – proceedings not in the nature of criminal proceedings – whether subpoena of sufficient particularity – must identify the individual document sought

PRACTICE & PROCEDURE - application for leave to commence proceedings under Vexatious Proceedings Act 2008 - applicant prohibited from commencing legal proceedings without leave of the court - failure by applicant to disclose material facts in support of application - application dismissed

PROCEDURE - civil - defective documents or defective pleadings - strike out; application to - summary disposal - default judgment

TRUSTS - judicial advice - s 63 Trustee Act 1925 - application for judicial advice by trustee whether justified in refusing to register transfer of units pursuant to transfer documentation executed under powers of attorney granted by unitholders - reasoning in Re Perpetual Investment Management Limited as responsible entity for Perpetual's Monthly Income Fund and Perpetual's Wholesale Monthly Income Fund [2011] NSWSC 133 applied - jurisdiction to give advice - advice as to registration of transfers is advice respecting administration of trust property - no statutory obligation to register transfers - trustee justified in acting on basis that no presumption contracts are binding - judicial advice that trustee justified in refusing to register transfer in respect of unitholders who have not indicated to the trustee they wish transfers to be registered - judicial advice on distribution of income and proceeds of redemption

PRACTICE AND PROCEDURE - plaintiff under legal incapacity - general rule encapsulated by UCPR 7.10 that persons under legal incapacity cannot bring proceedings except by tutor - not appropriate to dispense with rule to ensure litigation carried on by responsible person - whether Powers of Attorney Act allows attorneys under power to commence proceedings in name of principal - proceedings must be brought in name of principal not attorney - tutor appointed. PRACTICE AND PROCEDURE - estate of deceased person has interest in proceedings - estate not represented - whether proceedings should be continued in absence of representative under UCPR 7.10(2) - no interest or claim by other person - potential beneficiaries submitted or taken to submit to relief sought - effect of order to convert real property to cash - s66G orders made almost as of right - plaintiff's interest in property is 75% - held: proceedings may continue. REAL PROPERTY - application for appointment of trustees for sale of property - orders made almost as of right - practice of court to require verification of consent of trustees - practice of court to require affidavit of fitness of trustees - requirements satisfied - s66G orders made.

REAL PROPERTY - Remedies available to Court of Equity - testatrix devises real property to trustees upon certain trusts - son has life estate - grandnephew has remainder interest - grandnephew's vested remainder interest takes effect on son's death - grandnephew in possession of property - trustee seeks to exercise power of sale under will - declaratory relief and order for vacant possession sought by trustee - jurisdiction of Court of Equity to issue writ of possession - Court of Equity has jurisdiction to grant most appropriate remedy to vindicate right established -defendant in occupation of property - mandatory injunction only enforceable in contempt proceedings - proceedings for possession attended by procedural constraints protective of rights of persons in possession - possession most appropriate remedy. PRACTICE AND PROCEDURE - Summons does not seek possession - court obliged to give judgment as case requires regardless of relief sought in originating process - judgment for possession granted.

COSTS - settlement of proceedings against all parties - unauthorised signature on loan - Bullock orders sought - no necessity for mini-trial - orders granted; PRACTICE - application for indication by Court of whether orders created dependent or independent obligations - advisory opinion - issue not determined

TORT - negligence - personal injury - construction site - truck driver hired out to truck owner - liability of employer and principal - alternate rights - damages

Criminal law - police powers to fingerprint and photograph - statutory construction

Criminal law - perverting the course of justice - effect of incarceration on third parties

CIVIL - APPEAL - Leave to bring private perjury prosecution - alleged bias of primary judge - ingredients of charge of perjury

REAL PROPERTY - Caveats - application to extend caveat - where caveat already lodged and removed from register -application refused. REAL PROPERTY - Caveats - leave to lodge further caveat - where Trustee in Bankruptcy transferred applicant's interest in property - applicant asserts Trustee in disentitled from transferring interest - mortgage obtained by bank over property subsequent to transfer - applicant cannot sustain caveatable interest.

PRACTICE AND PROCEDURE - application for preliminary discovery -decision as to whether plaintiff commences proceedings extends beyond whether claim has an arguable basis to consideration of prospects of success - plaintiff appears to have decided to bring case - defendant indicates to court that does not retain documents sought to be discovered - held: no utility in making order for preliminary discovery

TORTS - trespass to property - defendants trespassed on plaintiff's farm at request of an office of Animal Liberation NSW to investigate conditions in which animals kept - video and photographs taken during the trespass - authorised only for use as material for a veterinarian report and police investigation - no adverse police findings against farm - entry unlawful INTELLECTUAL PROPERTY - whether copyright subsists in victim over photographs and video film taken during the course of unlawful trespass - defendants' evidence was that there was no intention to publish or profit from or damage plaintiff's reputation through the material - premises mentioned in media by third party Animal Liberation NSW - whether copyright held on constructive trust for plaintiff - whether defendants can be ordered to deliver up film and negatives - whether principle that a trespasser should not enjoy the "fruits of their tort" applied - no intention by defendants to profit from film - no commercial loss or loss of goodwill by plaintiff - photograph and video had no intrinsic value - no basis for a constructive trust INJUNCTIVE RELIEF - whether court could restrain trespass to the video/photographic "products" obtained during a trespass to land - unconscionability as a ground of relief in equity - whether breach of confidence - video film and photographs not in the nature of confidential information - common law damages adequate remedy - injunctive relief refused DAMAGES - claim for general damages, special damages, aggravated damages and exemplary damages - no proof of loss or damage to property - nominal damages inappropriate - general damages vindicates plaintiff's right to exclusive occupation award of $15,000 general damages - exemplary and aggravated damages unnecessary in lieu of sabotage or aggravating circumstances - special damages awarded for costs arising from the natural and probable consequences of the trespass - cost of veterinary services check allowed

CHILDREN - parens patriae jurisdiction - child attains age of 18 - application to Guardianship Tribunal made - guardianship order made - orders of Guardianship Tribunal supersede orders of court - held: secure accommodation and restraint order discharged.

CORPORATIONS - application under s 459G of the Corporations Act 2001 (Cth) for order setting aside statutory demand - whether genuine dispute as to existence of debt - whether genuine offsetting claim established under s 459H of the Corporations Act 2001 (Cth) - whether service of statutory demand amounted to abuse of process - HELD - genuine dispute established as to existence of debt as claimed - no genuine dispute as to liability for lesser amount - no genuine offsetting claim established - no abuse of process - statutory demand varied pursuant to power conferred in s 459H(4) of the Corporations Act 2001 (Cth)

Family Provision order sought by daughter - deceased died intestate - distribution of estate between two children

CORPORATIONS - winding up - winding up order made in the defendant's absence - where plaintiff's representative had told officer of defendant that the matter was listed at 9.15am when the listing was at 9.00am - where originating process stated venue at Supreme Court Queens Square but matter in fact heard at a courtroom in a building in Macquarie Street - standing of applicant for order setting aside winding up order doubtful - but court should of its own motion set the order aside to preserve the integrity of its proceedings

WILLS AND ESTATES - Family Provision - relationship with the deceased - Claim by two children - Turbulent relationship with the deceased - nature and extent of estate - only notional estate and the person having the benefit of the notional estate is suffering from cancer with a life expectancy of 12 months - Order for provision upon the death of the owner of the notional estate.

ROAD TRANSPORT -- appeal from Local Court - regulatory offence - driver of heavy vehicle failing to take prescribed period of continuous rest during 24 hour work period - determination of the time at which the 24 hour period began - meaning of "major rest break" in Road Transport (General) Regulation

DEFAMATION - defences - contextual truth - application to strike out contextual imputations under UCPR Pt 14, r 14.28(1) - whether contextual imputations are "other imputations" carried "in addition to" plaintiff's pleaded imputations - principles considered - s 16 Defamation Act 1974 - s 26 Defamation Act 2005 DEFAMATION - defences - substantial truth - particulars - strike out application under UCPR Pt 14, r 14.28(1) - whether particulars fall so far short of being capable of supporting truth of imputations - materiality of words of imputations - wide difference between facts asserted in particulars and imputations of specific conduct - principles considered - s 25 Defamation Act 2005

REAL PROPERTY - Land under the Real Property Act 1900 - Caveats - Caveats preventing exercise of power of sale by mortgagee - Requirements for caveats - Whether injunction can be granted requiring Registrar General not to accept certain caveats.

CONTEMPT OF COURT - whether undertaking ambiguous - construction of undertaking CONTEMPT OF COURT - whether guilty of criminal contempt - distinction between civil and criminal contempt - criminal standard of proof - requirement for deliberate defiance or contumacy CONTEMPT OF COURT - exercise of sentencing discretion EVIDENCE - credit findings - whether lies evidence of guilt - whether denial evidence of fact asserted in question

Interlocutory application Costs of Notice of Motion Negotiated settlement Scope of discovery Restrictive approach to general discovery

CONTRACT - principles of construction - significance of context - capricious and inconvenient consequences - IMPLIED TERMS - construction or implication - nature and juridical basis CORPORATIONS LAW - oppression - single act - declaratory relief JUDGMENTS - first instance judgment - finally determines rights and liabilities - fixes current legal position - significance of appeal

CONTRACTS - general contractual principles - construction and interpretation of contracts - whether contract was terminated or repudiated - whether plaintiff entitled to adjudication costs - calculation of damages

CONTRACTS - contract of sale of property which includes a buyback option - construction of contract - whether as a matter of construction the buyback option to a third party was a promise made to the plaintiff - whether the plaintiff can enforce a promise for the benefit of a third party - absence of mutuality ESTOPPEL - Anshun estoppel - whether the plaintiff is precluded from bringing its claim - whether it was unreasonable for the plaintiff not to have pursued its current claim in previous proceedings ASSIGNMENT - assignment of contractual rights - whether the plaintiff has standing to bring its claim - whether the plaintiff has assigned all of its rights to a third party who is not a party to these proceedings - whether the subject matter of the assignment is capable of being assigned at all - whether the notice given to the defendants was effective

SECURITY FOR COSTS - significance of delay - discretion - application refused

EVIDENCE - witnesses - unfavourable witnesses - Evidence Act 1995 s 38 - whether party calling witness should be given leave to cross-examine about matters relevant only to the witness's credibility - whether witness unfavourable or made prior inconsistent statement - leave granted

PROCEDURE - cross-claims - notice of motion - leave sought to file further proposed cross-claim against plaintiff - leave granted - leave sought to file proposed cross claim against alleged agent for the plaintiff - delay and other impact on hearing considered - leave not granted - costs

PROCEDURE - expert evidence - leave to serve expert report - testamentary capacity case - small estate - late application by Defendant - principle of proportionality - application refused.

CRIMINAL LAW - sentence appeal - whether sentence manifestly excessive - applicant on conditional bond at time of offence - offence contrary to s.112(1) malicious damage by fire of place of employment - damage in excess of $1.5 million - whether trial judge erred in not taking sufficiently into account subjective factors - whether use of the term "mid-range of objective seriousness" in error where there is no standard non-parole period - remarks on sentence addressed in detail objective and subjective factors - offence objectively very serious - applicant not truthful to the Court regarding his circumstances

CONTRACTS - whether exchange of emails gave rise to binding agreement - no point of principle

EVIDENCE -admissibility - expert opinion - relevance - whether medical reports tendered at the trial could be considered on the issue of liability and causation or only with respect to the latter EVIDENCE - witnesses - credibility or reliability - whether the primary judge should have rejected expert evidence in relation to the reasonableness for the personal trainer to introduce a specific exercise and additions to that exercise TORTS - negligence - breach of duty of care - personal training studio - whether a reasonably competent professional fitness trainer would have engaged an inexperienced and unfit individual in specific physical activities - Civil Liability Act 2002 (NSW), s 5B(1)(c) TORTS - negligence - duty of care - social utility of gyms - Civil Liability Act 2002 (NSW), s 5B(2)(d)

SOLICITORS - Professional negligence - mortgages - general principles - duty and breach - solicitor's duty to mortgagee usually framed by retainer - general duty to exercise reasonable care in obtaining a valid and enforceable security - duty does not extend to advising on valuation of security - obligation to pass on information obtained in course of investigating title that may cause mortgagee to doubt correctness of valuation or bona fides of mortgagor - solicitors did not owe duty to ascertain creditworthiness of mortgagor - solicitors discharged duty to obtain a legally efficacious mortgage -solicitors failed to advise client of matters known or which ought to have been known from usual inquiries which would have caused client to doubt reliability of valuation -reasonably prudent and competent solicitor should have appreciated and advised that contrary to assumption stated in valuation land was subject to flooding SOLICITORS - Professional negligence - mortgages - loss and damage - measure of damage and loss is difference between actual position of mortgagee and hypothetical position but for negligence of solicitors - claim for economic loss from failure to take reasonable care - apportionable claim under Civil Liability Act - proportionate liability of defendants as concurrent wrongdoers - responsibility derived from comparing blameworthiness and causative potency of conduct of alleged concurrent wrongdoers being borrower, valuer, finance broker and solicitors - where borrower fraudulent and valuer grossly negligent - solicitors responsibility assessed at 12.5%. SOLICITORS - claim against valuer for negligence - no duty of care owed by valuer to solicitor - valuer owed duty to borrower only - misleading and deceptive conduct claim against valuer - solicitor's loss not caused by reliance on misrepresentations of valuer but solicitor's failure to take reasonable care - concurrent wrongdoer cannot recover contribution or indemnity against other concurrent wrongdoer except an excluded concurrent wrongdoer - valuer not an excluded concurrent wrongdoer.

PRACTICE AND PROCEDURE - notice of discontinuance - consent of one of the parties not obtained - leave granted to discontinue proceedings as no active participation by non-consenting party.

COSTS - defendants offer of compromise prior to hearing - offer not accepted - plaintiff obtains judgment less favourable than offer - plaintiff to pay defendant's costs from time of offer.

Family Provision. Application by foster child. Poor quality relationship with parents. Increase in provision ordered. No question of principle.

CRIMINAL LAW - procedure - fitness to plead or be tried - question raised during sentence proceedings - inquiry held - finding of unfitness

TRADE PRACTICES - Consumer Protection - Australian Securities & Investments Commission Act 2001, s 12GM and s 12GF - relief dependent upon alleged representations - no representations found - No principle involved

Allegations of misleading or deceptive conduct and unconscionable conduct on the part of persons associated with the operation of an introduction agency

COSTS - application for assessment of legal costs after 12 months - Legal Profession Act 2004 s 350(5) - whether "just and fair" for the plaintiff's application for assessment of the defendant's legal costs to be dealt with after the 12 month period - application granted

CONTRACT - OFFER & ACCEPTANCE - whether offer constituted by signing of licence and shareholders agreements by some parties thereto - whether inferred acceptance thereof - whether manifestation of mutual assent to contract - HELD - contract established by mutual assent - ESTOPPEL - whether conventional estoppel applied to preclude denial of licence agreement - HELD - conventional estoppel established - INTELLECTUAL PROPERTY - whether exclusive licence in respect of registered trade marks and formulas -whether registered owner of trade marks can contractually fetter statutory right to use trade mark - whether confidential information in formulas is assignable - HELD - exclusive licence - statutory right of registered owner can be so fettered by contract - confidential information not property assignable as such - CORPORATIONS - whether pre-incorporation contract - HELD - no pre-incorporation contract

JURISDICTION - Supreme Court has power to re-open matter and evidence after two reasons for judgment (entitled "Judgment") delivered - Operation and effect of UCPR 36.11 and 36.16 - Court had not concluded consideration of controversy - Extended hearing of partnership dispute - Tracing type relief sought - First "Judgment" resolves many disputed questions of fact and partnership declaration made on delivery of second judgment - On delivery of neither were orders made giving effect to tracing type relief - Court considering what relief should be granted to give effect to judgments when application to re-open made Dispensing power under s 14 of the Civil Procedure Act, even if available, which was doubtful, should not be exercised.