Cases
Our experienced litigation department is involved in numerous proceedings before tribunals, mediators, and courts ranging from the Local Court up to the High Court of Australia. Listed below are some examples of proceedings which we have actively being involved in running:
Bl and Gy International Co Pty Ltd v Hypec Electronics Pty Ltd (in liquidation) [2003] NSWSC 1226 (10 December 2003)
http://www.austlii.edu.au
Bl and Gy International Co Limited v Hypec Electronics Pty Limited [1999] NSWSC 447 (12 May 1999)
http://www.austlii.edu.au
Bl and Gy International Co. Ltd v Hypec Electronics Pty Ltd; Colin Anthony Mead v David Patrick Watson and Ors. [ 2001] NSWSC 705 (21 August 2001)
Company Law-Winding up-Liquidators-Exceptions to rule in Foss v Harbottle- -Contributories motion to bring a derivative cross action and to be permitted to seek leave to set aside a default judgment and to conduct a derivative defence-Whether action may be brought or continued or defended by a contributory in the name of company if this is in the interests of justice-Whether any such a rule applies to companies in liquidation-Considerations applicable to control by the court of company in liquidation-Contributory authorised to use companies name as co- defendant and as cross claimant.
http://www.austlii.edu.au
Bl and Gy International Co. Limited v Hypec Electronics Pty Ltd (in liquidation) and ors. [ 2001] NSWSC 841 (25 September 2001)
http://www.austlii.edu.au
Bl and Gy International Co Ltd v Hypec Electronics Pty Limited and 2 others [2002] NSWSC 38 (14 February 2002)
http://www.austlii.edu.au
Bl and Gy International Co Ltd v Hypec Electronics Pty Limited and Ors [ 2002] NSWSC 575 (28 June 2002)
Costs - Plaintiff unsuccessful in principal proceedings, defendant unsuccessful in cross-claim little or no separate evidence directed to cross-claim - plaintiff ordered to pay defendant's costs of entire proceedings - plaintiff's case found to be based on fabricated evidence - indemnity costs ordered
application for non-party to pay defendant's costs - whether the proceedings were an abuse of the process of the Court - whether costs should be awarded against a non-party who purported to commence the proceedings as an authorised director of the plaintiff - discretionary considerations involved - costs order made against non-party.
http://www.austlii.edu.au
Yang v Hypec Electronics Pty Ltd (In Liquidation) & 2 Ors [ 2003] NSWCA 181 (27 August 2003)
COSTS - cross-defendant party to principal proceedings - amenable as such to order for costs of principal proceedings
http://www.austlii.edu.au
Hypec Electronics Pty Limited (in liq) v Mead and Ors [ 2003] NSWSC 934 (3 November 2003)
CORPORATIONS - winding up - principle in Ex parte James; In re Condon (1874) LR 9 Ch App 609 - circumstances of application - circumstances when appropriate to direct liquidator not to collect corporate asset - how principle in Ex parte James fits with liquidator's duty under - Corporations Act 2001 – ESTOPPEL - whether liquidator estopped from collecting corporate assets
appropriate remedy to meet "minimum equity" test – TRUSTS - resulting and constructive trusts - factual decision about whether purchase price of asset in name of Company "A" controlled by directors of Company "B" had been provided by Company "B" Liquidator estopped, and precluded under principle in Ex parte James, from recovering four items of corporate property, until further order. Land in name of company associated with company directors held on trust for company in liquidation.
http://www.austlii.edu.au
Bl and Gy International Company Limited v Hypec Electronic Pty Limited; Colin Anthony Mead v Dp Watson (as Liquidator of Hypec Electronics Pty Ltd in liquidation) and Ors [2003] NSWSC 1138 (4 December 2003)
http://www.austlii.edu.au
Bl and Gy International Co Pty Ltd v Hypec Electronics Pty Ltd (in liquidation) [2003] NSWSC 1226 (10 December 2003)
CORPORATIONS - winding up - liquidator seeking to intervene in Family Court dispute - no proper purpose of advancing liquidation achieved by such intervention.
Liquidator directed, until further order, to make no further intervention in or application to Family Court in identified proceedings
http://www.austlii.edu.au
Hypec v Mead [ 2004] NSWCA 221 (6 July 2004)
CORPORATIONS - Liquidation - Estoppel - Rule in Ex parte James - Corporations Act s 477(6) - Property purchased with company funds - Property sold to fund director's legal costs - Liquidator knows of sale - Director defending company - Proceeds of sale - Liquidator attempts to recover - Whether benefit to company - Whether inducement by liquidator - Whether rule extends beyond money paid under mistake of law.
http://www.austlii.edu.au
Hypec Electronics Pty Limited (in liq) v Mead; Bl and Gy International v Hypec Electronics Pty Limited (in liq) [ 2004] NSWSC 731 (13 August 2004)
CORPORATIONS - winding up - liquidator causes company to bring proceedings to recover corporate assets - proceedings unsuccessful - personal costs order sought against liquidator - principles governing availability of such an order in Supreme Court - supervisory jurisdiction of Court over court-appointed liquidators - whether appropriate for liquidator to pay costs personally when Court directs him, pursuant to Ex parte James; In re Condon (1874) 9 Ch App 609, not to follow a particular course of conduct - PROCEDURE - costs - orders for costs against non-parties in the Supreme Court - construction of Supreme Court Rules 1970 Part 52A, rule 4 - circumstances where personal order for costs can be made against liquidator, in connection with proceedings which liquidator causes company of which he is liquidator to bring, under supervisory jurisdiction of court over court-appointed liquidators - PROCEDURE - costs - indemnity costs - whether awarded on basis of bad conduct of party prior to litigation
No orders for indemnity costs. No personal costs order against liquidator, except concerning a single application where liquidator had stepped outside his proper role. Costs of hearing concerning rule in Ex parte James to be paid from assets of company.
http://www.austlii.edu.au
Mead v Mead and Anor [ 2004] NSWSC 691 (18 August 2004)
Leave to file further amended summons and further amended statement of charge; timetable set; matter listed for directions; liberty to apply; plaintiff to have costs in the cause.
http://www.austlii.edu.au
Bl and Gy v Hypec Electronics [2004] NSWSC 1119 (2 December 2004)
CORPORATIONS - Winding up - Principles in removal of liquidators - Whether in interests of winding up to remove liquidator, Liquidator removed and ordered to pay costs personally
http://www.austlii.edu.au
Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 (28 April 2005)
PROCEDURE - Costs - Circumstances in which a liquidator may be ordered to pay personally costs which have been ordered against the company in liquidation - - Liquidator caused company to bring proceedings to recover corporate assets - Proceedings unsuccessful due to estoppel and Ex parte James defences - Personal costs order sought against liquidator - Whether liquidator's conduct of litigation was "improper" - Whether liquidator acted reasonably in opposing estoppel and Ex parte James defences - Whether "exceptional circumstances" established justifying personal costs order against liquidator - PROCEDURE - Costs - Indemnity costs - Whether conduct of litigation such as to warrant award of indemnity costs against liquidator
http://www.austlii.edu.au
Hypec Electronics Pty Ltd (In Liq) v Registrar-General [2005] NSWSC 1056 (6 October 2005)
CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order for cancellation of certificate of title and issue of new certificate - Certificate of title cannot be located after all possible inquiries.
New certificate of title should issue.
http://www.austlii.edu.au
Hypec Electronics Pty Ltd (In Liq) v Registrar-General [2005] NSWSC 1213 (30 November 2005)
CONVEYANCING [197] – Land titles under Torrens system – Instruments generally – Powers and duties of Registrar as to registration – Securing production of necessary documents – Person in whose favour a declaration of trust and order for transfer of properties – Whether such person entitled to require production of certificate of title held by mortgagee to permit registration of transfers - STATUTES [21] - Acts of Parliament - Interpretation - Rules of construction - Where meaning ambiguous or uncertain - Presumptions as to legislative intention - Not to alienate vested proprietary interests or subvert common law or equitable rights - General principle - Necessity for clear language.
Plaintiff not entitled under s 96(2) of the Conveyancing Act 1919 to have certificate of title held by a mortgagee lodged at the Registrar General’s office to allow registration of transfer to the plaintiff of the fee simple in property.
http://www.austlii.edu.au
Yang v Mead [2008] FCA 1070 (18 July 2008)
Bankruptcy
http://www.austlii.edu.au
WATSON v CONOLLY [2008] NSWSC 872 (26 August 2008)
PROCEDURE – Application for leave to amend statement of claim – sought to delete part of pleadings – amendments in question held separable - Application to rely on subpoenaed documents produced by defendants in different proceedings – documents totalling 350 folders – cost effective to allow access to existing documents
http://www.austlii.edu.au
LGM & CAM (Costs) [2008] FamCAFC 106 (11 July 2008)
http://www.austlii.edu.au
Yang v Mead [2008] FMCA 798 (6 June 2008)
BANKRUPTCY – Application to set aside bankruptcy notice – counter-claim etc exceeding judgment debt – issue estoppels arising from previous litigation – claim owned by debtor in a different capacity – Court not satisfied as to any other claims – application dismissed.
http://www.austlii.edu.au
SGY and Anor Company Z (In Liquidation) [2008] FamCAFC 92 (30 April 2008)
FAMILY LAW - APPLICATION TO EXTEND TIME – Whether application to extend time to file appeal against trial Judge’s orders is competent –Whether trial Judge dealt with all orders sought in original application for leave to appeal when dealing with stay application – Whether application was dismissed by trial Judge – Whether application capable of amendment – Where at time of filing application, applicants were unrepresented – Where original application sought leave to appeal on behalf of third parties – Finding that the original application was abandoned after trial Judge’s reasons on stay application were delivered – Where second application filed for extension of time to appeal orders made by trial Judge – Whether more stringent test applies in exercise of discretion to extend time for leave to appeal than to extend time to appeal – Whether discretion to extend time under the Family Law Rules 2004 is at large – Where established principles guide the exercise of discretion - Whether orders were interlocutory and so application to extend time for leave to appeal is required – In this case, order was interlocutory - Application of Re Luck (2004) 203 ALR 1 – Where applicants put on notice and given opportunity to file amended application – Present application incompetent – Application dismissed.
http://www.austlii.edu.au
LGM & CAM And Ors [2008] FamCA 185 (20 March 2008)
http://www.austlii.edu.au
Hypec Electronic v Registrar-General (No 3) [2008] NSWSC 167 (29 February 2008)
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
http://www.austlii.edu.au
Hypec Electronic v Registrar-General (No 2) [2008] NSWSC 138 (21 February 2008)
PROCEDURE - Miscellaneous procedural matters - Further Submissions - Effect of registration of transfer of mortgage to B upon debt due by A and B to former mortgagee
http://www.austlii.edu.au
Hypec Electronics v Registrar-General [2008] NSWSC 18 (29 January 2008)
CONYEYANCING - Land Titles under the Torrens System - Indefeasibility of Title - Cross claimant first registered mortgagee by transfer - Whether mortgages ceased to secure any indebtedness - Whether mortgages were a sham - Whether registration obtained by fraud within exception to Real Property Act 1900, s 42(1) - Whether earlier transfer of mortgages voidable as alienation with intent to defraud creditors under Conveyancing Act 1919, s 37A
http://www.austlii.edu.au
LGM CAM (Contempt) [2008] FamCAFC 1 (10 January 2008)
FAMILY LAW - APPEAL – Second hearing by a Full Court on remission from the High Court – From decision of Family Court Judge – CONTEMPT – Contravention of court order – Sanctions – Wife seeking that the orders for imprisonment be set aside, the husband’s contempt application be dismissed and that the husband pay costs – In property settlement proceedings interlocutory orders were made restraining the wife from dealing with real property pending division of the matrimonial assets – Contrary to those orders, the wife mortgaged real property, in which she had a half interest, to secure a loan – The wife also sold a property – Arising out of those transactions the husband brought an application for contempt – The wife did not give evidence or call witnesses – The trial Judge found that the wife’s actions constituted contempt – The wife afterwards gave evidence of steps taken by her to purge her contempts – The wife also made offers in relation to paying the husband’s costs of the contempt proceedings – The wife was sentenced for a total period of six months’ imprisonment – The wife was ordered to pay the husband’s costs of the contempt proceedings on an indemnity basis – Whether the trial Judge erred in concluding as a fact that the wife was aware of the terms of the orders and that the orders had been made – Whether the trial Judge should have found that the absence of special service by hand of the amended application for contempt resulted in the failure of the application – Whether incorrect conclusions were drawn in respect to the wife’s attempts to purge her contempt; whether the penalty was plainly unjust; argued that in ordering indemnity costs, the trial Judge failed to take account of the absence of evidence as to the basis upon which the husband’s costs were charged or their quantum; and that the trial Judge wrongly took into account findings central to the conclusion of contempt, for which the wife had already been punished
http://www.austlii.edu.au
LGM CAM (No. 2) [2007] FamCA 1645 (17 December 2007)
http://www.austlii.edu.au
Mead v Allianz Australia Ltd [ 2006] NSWSC 366 (3 May 2006)
Separate question as to whether defendant has validly denied liability under Policy - where insured is liquidator of company - where insured commences proceedings to recover assets of company - where insured ordered to pay costs personally - where insured removed as liquidator - where insured ordered to pay costs of removal proceedings personally - where Policy excludes liability for claim directly or indirectly based upon, attributable to, or in consequence of, any "malicious or reckless act" which is "established by judgment or other final adjudication" - whether judgments in various proceedings "establish" "malicious" or "reckless" acts by insured.
Answer to seperate question - "No".
http://www.austlii.edu.au
Hypec Electronics Pty Ltd (In Liq) [2006] NSWSC 704 (10 July 2006)
CORPORATIONS - winding up - examinations by liquidators - orders for production of documents - orders sought in respect of solicitors - need for mechanism for determination of claims for privilege before order for production made
http://www.austlii.edu.au
Bl and Gy International Co Ltd v Hypec Electronics Pty Limited and Ors [2002] NSWSC 575 (28 June 2002)
Costs - plaintiff unsuccessful in principal proceedings, defendant unsuccessful in cross-claim - little or no separate evidence directed to cross-claim - plaintiff ordered to pay defendant's costs of entire proceedings - plaintiff's case found to be based on fabricated evidence - indemnity costs ordered
application for non-party to pay defendant's costs - whether the proceedings were an abuse of the process of the Court - whether costs should be awarded against a non-party who purported to commence the proceedings as an authorised director of the plaintiff - discretionary considerations involved - costs order made against non-party.
http://www.austlii.edu.au
Bl and Gy International Co. Ltd v Hypec Electronics Pty Ltd; Colin Anthony Mead v David Patrick Watson and Ors. [2001] NSWSC 705 (21 August 2001)
Company Law-Winding up-Liquidators-Exceptions to rule in Foss v Harbottle- -Contributories motion to bring a derivative cross action and to be permitted to seek leave to set aside a default judgment and to conduct a derivative defence-Whether action may be brought or continued or defended by a contributory in the name of company if this is in the interests of justice-Whether any such a rule applies to companies in liquidation-Considerations applicable to control by the court of company in liquidation-Contributory authorised to use companies name as co- defendant and as cross claimant.
http://www.austlii.edu.au
Richard Martin TORY v Michael MEGNA [2007] NSWCA 13 (19 February 2007)
APPEAL AND NEW TRIAL – General grounds – Miscarriage of Justice – Circumstances not involving substantial wrong or miscarriage – Test of “substantial miscarriage of justice” under Supreme Court Rules Pt 51, r23
APPEAL AND NEW TRIAL – Particular grounds – Misdirection or nondirection – Misconduct of counsel
DEFAMATION – Statements amounting to defamation – Whether self-published community circulars were of a character that encouraged a reader to take them seriously
http://www.austlii.edu.au
Megna and Anor v Marshall and Anor [2005] NSWSC 1326 (16 December 2005)
Costs of s 7A hearing
http://www.austlii.edu.au
Megna and anor v Marshall and anor [2005] NSWSC 1302 (15 November 2005)
EQUITY – Remedies – Injunctions – Asset Preservation Order
http://www.austlii.edu.au
Megna v Marshall [2004] NSWSC 191 (19 March 2004)
Costs - Whether "expense or loss" include the costs of retaining a solicitor and/or counsel - Indemnity costs - Appearing before the Court is a public duty - Conduct money - Compliance with Supreme Court Rules
http://www.austlii.edu.au
Megna and anor v Marshall and anor [2005] NSWSC 1347 (22 November 2005)
EQUITY – Remedies – Injunctions – Asset Preservation Order – in aid of potential cross-claim for contribution - in and of proposed third party proceedings under Family Law Act 1975 (Cth) to set aside financial agreement – against third party.
http://www.austlii.edu.au
Megna and anor v Marshall and anor; Tory v Marshall and anor [2006] NSWSC 70 (2 February 2006)
FAMILY LAW – Binding Financial Agreements – setting aside – Jurisdiction – Jurisdiction of Supreme Court under Jurisdiction of Courts (Cross-Vesting) Act (Cth) – Costs – circumstances justifying a costs order in proceedings under Family Law Act. COSTS – Proceedings under Family Law Act – third party proceedings to set aside financial agreement.
http://www.austlii.edu.au
Amanda Cush and Public Employment Office [2006] NSWIRComm 1115 (18 July 2006)
Employment Law
http://www.austlii.edu.au
