Cases and authorities

WINDING UP - Liquidator's powers - approval sought to enter into new lease and fit-out agreement - where terms will be discharged by performance more than 3 months after agreements entered into - s477(2B) Corporations Act 2001

ADMINISTRATIVE LAW [1152]- Ombudsman- Other matters- Plaintiff teacher's aide involved in alleged incident of child abuse- Defendant school investigates, reports to Ombudsman- Investigation declared void- Whether plaintiff may seek damages in addition to declaration- Held no cause of action from which damages may flow. EDUCATION [17]- Schools- Teachers- Whether dragging a disobedient child from classroom an assault.

CONTRACTS [21]- Options- Contract with right of pre-emption- When should triggered right be construed as option. ESTOPPEL [9]- Issue estoppel- Where a court has held a party does not have equitable charge in proceedings to remove caveat- Whether that party is precluded from asserting the existence of a charge in injunction- Whether an interlocutory decision should be followed as a matter of comity.

CORPORATIONS - Company deregistered - Deed of company arrangement terminated - Refund of monies paid on proof of debt under deed where proof incorrectly lodged - Monies held by erstwhile administrator - Orders made to reinstate company and as to how Pt 5.3A of the Corporations Act 2001 (Cth) is to operate so as to facilitate resuscitation of deed of company arrangement so as to enable refund monies to be dealt with and necessity to protect accrued rights but also to afford opportunity to creditors who did not prove to be heard.

PRACTICE AND PROCEDURE – Notice to Produce - Whether counsel who consented to timetable for compliance with Notice to Produce had authority to do so – No evidence that counsel was under any misapprehension, did not have actual authority, was making a mistake or that there was any other factor which would have vitiated ostensible authority

PROCEDURE - Miscellanous Procedural Matters - Adjournments - Vacation of hearing on terms - No new prinicples

PROCEDURE - Miscellaneous procedural matters - Adjournments - Whether defendant entitled to an adjournment of an application to vary consent orders to put on evidence to ground its opposition to the application - No principles involved

CORPORATIONS – Application under s 459G of the Corporations Act 2001(Cth) to set aside statutory demand – Where address of registered office is particular numbered suite on wharf – Whether delivery to mailbox in mailroom some distance from suite under control of security staff and to which recipient does not have unrestricted access constituted delivery to registered office – Genuine dispute about existence of debt to which statutory demand relates where identity of debtor company is contested

Indemnity costs - Interest on costs - Principles - Contract construction

EVIDENCE – Hearsay – Previous Representations admissible under s 64 – where effect is self corroboration – where no suggestion of recent invention and not apparent that direct evidence will be challenged – where previous representations intermingled with inadmissible material – undue waste of time – EVIDENCE – business records – expression of opinion – whether expert witness guidelines and code of conduct apply – whether Makita v Sprowles applies

CORPORATIONS – winding up – whether hearing should be adjourned pursuant to s440A(l), Corporations Act 2001 – whether order for winding up should be made.

Equity - Freezing orders in many jurisdictions - Tracing orders - Closed Court applications to permit plaintiffs to disclose information made available in present proceedings for purpose of ex parte applications for receivership orders in British Virgin Islands - Rule in Harman v Home Office

EQUITY – Confidential Information – Breach of Confidence – Interim relief – Defences – Material already in public domain – where put into public domain by defendant – whether defendant can rely on such publication – held, it is at least arguable that it cannot.

GIFTS [7]- Gifts inter vivos- Testator and his wife presented with two paintings- Testator purports to leave paintings by his will to his children- A gift to a married couple is a gift to them jointly unless circumstances are otherwise demonstrated- Paintings are property of wife by survivorship- Not part of testator's estate. SUCCESSION [310]- Family provision application- Application by plaintiff widow- Estate value $813,000- Will grants plaintiff three-tenths of estate- Widow only person in need- Provision inadequate for plaintiff's future housing needs- Legacy of $700,000 appropriate.

PROCEDURE: - Miscellaneous procedural matter – summary judgment – judgment on admissions – requirement for evidence of belief in absence of defence – where all allegations admitted in default of filing defence.

PROCEDURE – Appeals – appeal from Associate Judge – where decision of Associate Judge is final decision – appeal lies to Court of Appeal, not Division – Powers of Associate Judge – whether power to deal with application for prerogative relief against Workcover Authority doubted

EQUITY – Equitable estoppel – rights arising out of informal family arrangements – remedies – equitable charge – where defendant denies assumption that plaintiff would be registered proprietor – whether plaintiff entitled to recoup contribution rather than enforce equity to be registered.

CONTRACT – Whether “Heads of Agreement” for settlement of proceedings binding – Intention of parties where fuller further Deed of Settlement contemplated – Terms and language of agreement indicate intention immediately to be bound

WILLS – Informal Will – where copy of previous Will amended by testator in handwriting and signed – where plaintiff had ‘borrowed’ $250,000 from estate without authority.

INJUNCTIONS – interlocutory injunction – whether trustee should be restrained from exercising powers on default under trust deed – question, whether default under trust deed, determined as a matter of construction – whether interlocutory injunction should be granted when occasion for exercise of powers has not arisen and trustee undertakes to Court to consider all submissions put to it if (when) occasion for exercise of powers does arise – other discretionary factors.

WILLS – Probate – where forgery alleged - where one attesting witness denies due execution– whether presumption of due execution applies where testator’s signature is disputed – onus of proof – handwriting evidence – where court not affirmatively satisfied of forgery but left unsatisfied that signature is testator’s – COSTS – Probate – exception to general rule – case for inquiry.

PROCEDURE [32]- Adjournment- Application by third defendant to vacate hearing due to his ill health- Hearing vacated on two previous occasions- Third defendant's health problems found to be exaggerated and not principal reason for his seeking the adjournment- Plaintiffs' desire to get hearing on must be considered- Adjournment refused.

PROCEDURE - Transfers to District and Local Courts - Whether proceeding could properly have been commenced in District Court in terms of the Civil Procedure Act 2005, s 146 - Claim to equitable charge over land

PROCEDURE – Expedition – convenience of counsel

EQUITY [207]- Trusts and trustees- Applications to court for authority- Trustees wishing to sell half interest in significant item of trust property- No power to sell under trust deed- Whether court should authorise sale under s 81 of Trustee Act 1925- Sale not consistent with purpose and objects of trust- Ambit of s 81 discussed.

PROCEDURE - Mediation - Substantive proceedings concerning an easement - Many parties - Application for referral for mediation opposed - No new principles

INSURANCE – disputed claim under householder’s defined events policy – whether binding agreement for compromise reached in correspondence – no question of principle.

PROCEDURE - Costs - Conclusion of separately identifiable and discrete aspect of litigation - Whether costs should follow the event - Whether departure justified by defendants' admission of liability resulting in a shortening of proceedings

PROCEDURE [743]- Declarations- Jurisdiction- Plaintiff seeks declaration that defendant obliged to pay moneys owing under Workers Compensation Commission award- Defendant claims Court lacks jurisdiction to make declaration as Commission said to have exclusive jurisdiction to determine Workers Compensation matters- Held exclusive jurisdiction limited- In circumstances declaration of utility- Declaration made. WORKERS COMPENSATION [263]- Enforcement- Unpaid award for weekly payments- Whether declaratory order appropriate.

CONTRACTS – restraint of trade – plaintiff seeks enforcement of restraint of interlocutory relief – whether restraint a term of defendant’s employment – whether first employment agreement continued to bind defendant – whether term asserted too wide – balance of convenience – Costs.

PROCEDURE – Reference – to Referee – procedure on motion for adoption/rejection of report – approval of court to such questions – application for leave to adduce further evidence – approach to such applications – where evidence enables Court to substitute its own view to that of referee – VALUATION – equity – taxation investment product – cost of acquisition or future cash flows - taking into account events after relevant date – obligation to form view as to recoverability of receivables.

COSTS – where substantive proceedings compromised – where evidence permits conclusion that one party had extremely strong prima facie case and was almost certain to have succeeded

BUILDING AND CONSTRUCTION – Question whether delivery or not of a payment schedule is for court or adjudicator to determine – Delivery challenged on basis that Superintendent under contract who delivered it had no authority to do so – Whether Superintendent can be so authorised – Question whether it was is a matter for adjudicator

EVIDENCE – Expert evidence – parties’ single expert – questions to clarify report – leave to adduce evidence from another expert

CONVEYANCING [90]- Vendor and purchaser- Breach of contract- Remedies of vendor- Purported termination by vendor after purchaser fails to complete- Land tax unpaid by vendor when notice to complete issued- Purchaser takes nine months to lodge caveat in response- Contract must be taken to have been abandoned through mutual silence of parties after purported termination- Caveat must be removed.

Practice and Procedure - Separate question orders - Principles

MORTGAGES [64]- Proceeds of sale after first mortgagee's sale- Sale price $X + GST- Whether amount of GST is part of sale price under the law of mortgages- If so, whether GST is an expense occasioned by sale.

EVIDENCE – on claim for damages for misleading and deceptive conduct – where plaintiff claims to have proceeded with conversions of commercial property to residential apartments 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 subsequently opened admissible – measure of damages – where evidence potentially relevant to actual value of property

Defamation - jury verdict peverse - new trial - right of defendant to seek same "peverse" verdict.

LANDLORD & TENANT – lease – termination – notice – Conveyancing Act s 129 – sufficiency of informal notice

JUDGMENTS & ORDERS – enforcement – where leave reserved to plaintiff to apply for substitution of monetary judgment if mandatory injunction not performed – discretionary consideration.

PROCEDURE - Costs - Consent orders to be delivered to chambers - Orders not delivered - Whether legal representatives should be called upon to show cause why they should not pay costs personally under the Civil Procedure Act 2005, s 99

PROCEDURE - Miscellanous procedural matters - Amendments - Application to amend statement of claim to withdraw an admission - Whether leave required under the Uniform Civil Procedure Rules 2005, r 12(6) - Solicitor drew statement of claim in the mistaken view that if an unfair mortgage by one bank was refinanced by another bank, the refinancing bank must be given credit for the unfair loan - Whether the admission should be withdrawn - Matter not set down for trial

CORPORATIONS – EQUITY – Application under s 247A of the Corporations Act 2001 (Cth) by shareholder in company trustee for order to inspect its books – Application by unitholder in unit trust of which company is trustee for access to its records – Suspicion that company sold business of trust at undervalue to entity associated with other shareholder beneficiaries – Application in good faith and for proper purpose – As beneficiary unitholder entitled to access trustee’s records

PARTNERSHIP – joint venture – where Heads of Agreement provide for incorporation of joint venture vehicle – where vehicle not incorporated but parties proceed substantially in accordance with Heads of Agreement – where relationship breaks down – who is entitled to name and goodwill of joint venture business - RECEIVERS – whether appointment should be declined on basis that it would be ruinous - INJUNCTIONS – Interlocutory injunctions – undertaking as to damages – dissolution of joint venture – where one party to retain conduct of business in interim for benefit of joint venture – both parties restrained from exploiting commercial opportunities for separate benefit – where Defendant declines to offer undertaking as to damages as condition of corresponding restraint on Plaintiff – Plaintiff relieved from undertaking as to damages

COSTS – indemnity costs – Calderbank letter – where plaintiff failed to better defendant’s offer – where offer was not and could not have been made as formal offer under rules

SUPERANNUATION – benefits for disablement – where benefits insured under group life policy – “total and permanent disablement” – “disablement from further employment” – whether trustee addressed correct question – date of assessment – whether insurer took into account irrelevant considerations – whether employment for which employee became suited only by subsequent retraining is relevant employment – what constitutes “total and permanent disablement”

PROCEDURE – adjournment – taking of accounts – unrepresented litigation – where one party granted considerable indulgences – fairness dictates that other be granted indulgences

CONTRACTS – implied terms – duty to facilitate performance – implied negative obligation to refrain from doing anything to deprive other party of benefit of contract – where distributor entitled to remuneration calculated by reference to licence fees derived by principal from product placed by distributor – where principal proposes to assign benefit of licence agreements - INJUNCTIONS – interlocutory injunction – where principal threatens to alienate benefit of licence agreements to third party in breach of implied negative stipulation – whether damages a sufficient remedy