Cases and authorities

Ex parte application - Restraining order - s.10 Criminal Assets Recovery Act - Applicability of Queensland v Kahn Nhat Bui [2005] QSC 292

Sentence Appeal - use of standard non-parole period when plea of guilty - error in using standard non-parole period as start point for calculation of sentence - taking into account prior convictions as an aggravating factor.

Criminal Law - Sentencing - Erroneous pronouncement of sentence - whether any other sentence warranted.

CRIMINAL LAW AND PROCEDURE - APPEAL LODGED ON BEHALF OF APPELLANT BY LEGAL AID - APPELLANT ESCAPES FROM CUSTODY AND IS AT LARGE - LEGAL AID WITHDRAWN - NO APPEARANCE OF APPELLANT

Sentence Appeal - applicant surrendering to police when not under suspicion - s21A(2)(g) Crimes (Sentencing Procedure) Act 1999 - meaning of "substantial emotional harm" - offence committed "in company" - wide discretion of sentencing judge.

Criminal Law - Sentencing - Ongoing supply of drugs - extent to which other uncharged supplies may be taken into account.

CRIMINAL LAW AND PROCEDURE - SENTENCE - CO-OFFENDERS - APPELLANT DISADVANTAGED BY BEING IN CUSTODY LONGER FOR THIS OFFENCE THAN CO-OFFENDER WHO WAS IMPRISONED FOR ADDITIONAL OFFENCE - PARITY - JUSTIFIABLE SENSE OF GRIEVANCE - RESENTENCE APPROPRIATE

CRIMINAL LAW AND PROCEDURE - SENTENCE - APPROACH WITH INTENT TO INFLUENCE JUROR - ABSENCE OF SINISTER CONNOTATION IN INTENDED COMMUNICATION TO JUROR TO LISTEN TO EVIDENCE CAREFULLY - OFFENCE COMMITTED WHETHER SINISTER OR BENIGN - APPROPRIATE SENTENCE SHOULD REFLECT APPLICABLE CHARACTERISTIC

Lengthy delay - delay not satisfactorily explained - actual and presumptive prejudice - application brought outside prescribed three year period - application to amend statement of claim which if granted would have the effect of defeating intention of parliament.

CORPORATIONS – STATUTORY DEMAND – Application to set aside – mere assertion of dispute of existence of debt – conclusion stated without sufficient particularity.

DEFACTO RELATIONSHIPS - claim for adjustment of property interests pursuant to s20 of the Property (Relationships) Act 1984

Appeal decision of CTTT - adjournment - denial of procedural fairness

STATUTES: - Acts of Parliament - operation and effect of statures - operation and effect of ss 105-105D of the Real Property Act 1900 (NSW) - REAL PROPERTY:- Torrens system - writ for the levy of property - effect of registration

Practice and Procedure - Civil Liability Act - Proportionate liability - Case management imposing obligation on defendants to formally identify all persons believed on reasonable grounds to be concurrent wrongdoers in relation to the claim - Interrogatories - Particulars

Defamation - pleading - plaintiff’s imputations - contextual imputations - Polly Peck interstate defences - whether defendant’s imputations available - whether contextual truth and Polly Peck defences should be struck out

High Range PCA - Whether absolute offence - Drinks spiked unbeknown to the defendant - Whether prosecution must disprove honest and reasonable mistake - Effect of possible guilt of low range offence - Nature of belief

NEGLIGENCE - liability of Council as occupier - claim for mental trauma - death of child occurring in park managed by Council - discussion of factors set out in s 5B of Civil Liability Act 2002 (NSW) - Council's breaches of duty. - NEGLIGENCE - contributory negligence - whether child aged 12 could perceive the relevant risk - s 5R of the Civil Liability Act 2002 (NSW). D

PROCEDURE [666]- Security for costs- Plaintiff resident overseas- Plaintiff impecunious- Whether impecuniosity caused by defendants- Ordinarily no order for security made against plaintiffs who are natural persons- Unfair for defendants to incur expense of enforcing costs order overseas- Poverty alone not basis for order- Must look at strength of plaintiff's case.

Notice of Motion - Orders sought to allow resignation of tutor - whether legal incapacity

ASSOCIATIONS & CLUBS [5]- Religious association- Meeting- Whether members given sufficient notice- Whether meeting should go ahead- Discussion of Court's approach to prevention of meetings of incorporated associations.

Civil Law – appeal from Local Court – decision of an assessor – whether lack of jurisdiction – whether denial of natural justice

Succession. - Family Provision. - Claim by widow. - Plaintiff and Deceased were estranged at time of Deceased's death. - Conduct disentitling. - Relevance of Plaintiff's adultery. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance. - Prescribed transaction. - Notional estate. - Costs payable out of notional estate.

Costs judgment

TORTS – Negligence – Duty of care – Where plaintiff tripped over mound of dirt – Where mound located on non-dedicated Crown road – Whether Council owed duty of care to plaintiff – Whether Council exercised de facto control over road – Whether evidence that Council had maintained road

NEGLIGENCE – plaintiff slipped on patch of grease or oil in car park – whether finding that patch was ‘obvious’ was inconsistent with a finding of breach of duty of care – whether sufficient evidence to substantiate causation – form of orders where plaintiff recovered against several concurrent tortfeasors – whether plaintiff entitled to several judgments against each for the full amount

CORPORATIONS - civil proceedings arising under Corporations legislation - whether court invested with jurisdiction by Corporations Act should set aside originating process or decline to exercise jurisdiction in case of forum non conveniens - whether proceedings should be transferred to another court invested with such jurisdiction - CORPORATIONS - plaintiff seeks order setting aside resolution of creditors that company be wound up - interlocutory application for orders restraining company and liquidator acting upon such resolution and completing contract for sale - whether serious question to be tried - balance of convenience - EQUITY - interlocutory injunctions - balance of convenience - undertakings to court by plaintiff - usual undertaking as to damages and undertaking to pay money to certain persons in certain events - plaintiff is foreign corporation with no presence and no assets in the jurisdiction - indication of willingness to pay inadequate sum into court

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.

TRADE PRACTICES – Misleading or deceptive conduct – Fraudulent scheme raising finance through a purported hire purchase of non-existent cranes – Where finance was arranged through defendant finance broker – Where application for finance prepared by broker – Application forms represented that the funds were to be used to buy cranes – Plaintiff did not rely on broker to verify information - Claim by plaintiff finance company that defendant finance broker knew or had reason to suspect that the information supplied by applicant was false – Whether conduct by defendant amounted to endorsing the false information provided by the applicant or otherwise warranting its correctness – Held that although broker did more than merely pass on the information, it did not endorse or adopt it - broker had reasonable grounds for making the representations and did not engage in misleading or deceptive conduct - TRUSTS – Claim that director of company which supplied invoices for the fictitious cranes knowingly assisted in the company’s breach of trust – Where director knew that company did not have and would not acquire title to the cranes prior to invoicing the finance company – Held that money received by the company from the plaintiff was held on trust – Company paid money into its bank account which was in credit and later paid moneys to applicant for finance – Held that director liable to pay equitable compensation for knowingly or dishonestly assisting company’s breach of trust - RESTITUTION – Claim that brokerage was paid under a mistake of fact because the cranes did not exist – Alternative claim that there had been a total failure of consideration on the part of the broker – Brokerage contract construed – Held that introducing business which resulted in finance contracts being entered into was consideration – Judgment in favour of broker.

LOCAL COURT - APPEAL - PROSECUTION BY OFFICER OF WORKCOVER AUTHORITY FOR CRIMES ACT OFFENCES - REFUSAL OF COSTS OR RESTITUTION - CONSTRUCTIVE FAILURE TO EXERCISE JURISDICTION - REMITTED FOR RECONSIDERATION

Negligence - statement of claim - whether discloses cause of action - pure economic loss - doctor examined for specialist qualifications - failed - whether RANZCR owed duty to conduct examinations properly - whether duty to conduct review of fail results - arguable case

CORPORATIONS – OFFICERS – BANNING ORDERS – COMPENSATION – Whether officers of corporations found to have committed numerous contraventions of Corporations Act should be disqualified from managing corporations – factors considered – whether contraveners should pay compensation for losses caused by contraventions.

Notice of Motion - Interrogatories - Where plaintiff seeks further and better answers - Rule 22 Uniform Civil Procedure Rules - Fairness and efficiency

CONTRACT - intention of the parties - for the intention of an agent to be attributed to the principal, the agent must be acting with authority - rectification - whether by mutual mistake the parties' common intention has been incorrectly recorded in the written contract - the intention of the parties that is relevant is that existing at the moment the written contract was entered into - convincing proof, not mere suspicion, that the parties had a common intention at that time must be established. - APPEAL - overturning a trial judge's finding of fact which was based upon his or her assessment of the credibility of a witness - principle set out in Devries v Australian National Railways Commission (1993) 177 CLR 472 applies. ND

PROCEDURE [553]- Costs- Plaintiffs successful- Proceedings originally brought by a beneficiary of a discretionary trust- Proceedings amended to add trustee prior to hearing- Proceedings not incompetent prior to amendment- Whether plaintiffs to get whole of costs of suit or only those incurred after amendment. EQUITY [225]- Discretionary trust- Co-trustees deadlocked- Whether beneficiary had standing to bring derivative action to remove one trustee- Generally derivative action can only be brought in special circumstances- Beneficiary may bring derivative action where there is substantial impediment to trustee prosecuting proceedings.

TRADE PRACTICES: - Fair Trading Act 1987 (NSW) - misleading or deceptive conduct - CONTRACT:- sale of share in corporation - breach of express warranty by vendor relating to state of accounts

REAL PROPERTY [187]- Extension of second caveat- Plaintiff loaned money to defendant at high rate of interest- Loan secured by mortgage- Mortgagor granted mortgagee irrevocable power of attorney with respect to its rights and obligations under mortgage- Whether mortgagee as mortgagor's attorney could consent to lodgement of second caveat- Whether other reason why caveat should not be extended.

WILLS PROBATE AND ADMINISTRATION - spouse of attesting witness beneficiary under will - consideration of s13(2)(c) of Act.

Appeal decision of Local Court Magistrate - whether car was stolen

CRIMINAL LAW: - application for leave to appeal against sentence - attempt to commit offence under s51A(2) of the Firearms Act - challenge to findings of fact by sentencing judge - one finding contrary to Crown concession - whether sentence should have been suspended

CRIMINAL LAW - Application for leave to appeal against sentence - offences of armed robbery, specially aggravated detaining for advantage and related offences arising from three separate incidents - sentencing judge's approach to aggravating factors under s21A, Crimes (Sentencing Procedure) Act - whether sentences excessive - youth of offender - length of effective non-parole period

LEGAL PRACTITIONERS – unsatisfactory professional conduct - duty of Bar Council to institute and maintain proceedings under Legal Profession Act - Right to withdraw an Information – ability to administer a private reprimand - STATUTES - proper interpretation of s73(5)(g) of Administrative Decisions Tribunal Act and s155 Legal Profession Act.

PRACTICE AND PROCEDURE – Application to amend pleadings – Date from which amendment is to take effect – Whether defendant deprived of a limitations defence – Whether amendment arises from some facts or it is otherwise just to grant leave under s 64 of the Civil Procedure Act.