Cases and authorities

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether Deed for Expert Determination by Neutral Expert, binding on the parties was terminated before the neutral expert's determination issued - No matters of principle

Appeal from Small Claims Division - no denial of natural justice - unhappiness with findings of fact - attempt to have a re-hearing in this court.

CORPORATIONS - winding up - application by liquidators for various orders

Decision founded on breach of contract not litigated by the parties - denial of procedural fairness - onus - questions not dealt with - pleaded issues and departure therefrom - leave.

CRIMINAL LAW - appeal against sentence - importing a prohibited import being not less than the commercial quantity of heroin - whether the sentence is manifestly excessive - objective seriousness of offence - plea of guilty - delay - hardship of being separated from son - hardship caused to son by separation - whether justifiable sense of grievance when considering the sentence imposed on the co-accused

Equity upon loss of substratum of arrangement under principle of Muschinski v Dodds - quantum of equitable charge - whether based on amount of expenditure upon improvement of property of chargee or upon amount of the increase in value of the property - whether there is a general principle applicable to both promissory estoppel cases and Muschinski v Dodds cases - effect of failure of marriage upon transfer of interest in her home by a mother-in-law to her daughter-in-law - order for transfer back to mother-in-law subject to equitable charge in favour of her son and daughter-in-law measured by the increase in the value of the property by virtue of building works carried out by the son and daughter-in-law.

LAND AND ENVIRONMENT - Site Management Agreement - disclosure of parties - s24 Community Land Management Act 1989 - where effect of management agreement had not been disclosed - application of s24(2) - whether disclosure of the effect of an agreement cannot occur until the agreement has been entered into. (ND)

APPEAL - leave to appeal - arguable error of law - no substantial injustice

EQUITY - remedies - interlocutory injunctions - approach where issue is question of law on uncontroversial facts - ASSOCIATIONS & CLUBS - rights, duties and liabilities of members - club contracts to maintain rights of one class of members in form no less than existed as at date of contract - whether right to stand for election to 2 of 12 board positions in competition with members of other category is a right in a lesser form than to stand for election for those positions in competition only with members of same category - ALTERNATIVE DISPUTE RESOLUTION - mediation - whether agreement to mediate disputes should be enforced where disputed issue is resolved on interlocutory application

Succession. - Family Provision. - Only significant asset in estate is one half interest as tenant in common in matrimonial home of Deceased. - Other one half interest is held by Defendant. - Claim by adult son. - Financial and material circumstances of the Plaintiff. - Obligation upon applicant for provision to place before the Court as fully and frankly as possible all available information concerning his financial and material circumstances. - Whether Plaintiff has been left without adequate provision for his proper maintenance. - Competing claim of Defendant, who is widow and sole beneficiary of Deceased. - Any order for provision in favour of Plaintiff would result in Defendant being deprived of her home.

Malicious prosecution - Wrongful arrest - False imprisonment - Aggravated damages - Exemplary damages - Intentional act that is done with intent to cause injury (s3B(1)(a) Civil Liability Act 2002) - "Injury" (in that section) - Accrual of cause of action (Limitation Act)

Autrefois convict - plea in bar in nature of autrefois convict- not permitted while plea of not guilty remains standing on the record - leave to withdraw plea of not guilty if plea in bar a good one - Autrefois convict - plea in bar in nature of autrefois convict- requirement that both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) must be established by the accused - Autrefois convict - plea in bar in nature of autrefois convict- judge's ruling that plea in bar had been made out when there had not be a sentence erroneous - ruling a final decision disposing of the proceedings - acquittal - no Crown appeal lies from that ruling whether pursuant to s 5F of the Criminal Appeal Act 1912 or otherwise.

PROCEDURE - Court of Appeal - Interlocutory application for stay of proceedings in Industrial Relations Commission - Power not to be exercised lightly

COSTS - Offer of Compromise SCR Pt 5A r 22(4) and (5) - whether judgment no less favourable than the offer - decision turned on construction of offer as to which party was to pay the mortgage debt - decision on construction of terms of offer - no question of principle.

COSTS - late Calderbank offer - no special order - no question of principle. (In proceedings [2005] NSWCA 193).

APPEAL AND NEW TRIAL - jury decision in s.7A trial - a determination by jury under Defamation Act 1974 s.7A(3) that an imputation relied on by the plaintiff was not defamatory, followed by entry of a verdict for the defendant on that imputation is subject to appeal under Supreme Court Act 1970 s.102 - it is not necessary to find a right of appeal, with or without leave, in s.101, as s.102 confers a right of appeal independently of rights conferred by s.101. - DEFAMATION - whether an imputation was defamatory - "mere vulgar abuse" - the defendant in a speech at a public meeting made statements which the jury found conveyed the imputation that "the plaintiff has done illegal work which severely damaged the environment" - jury found that this pmputation was not defamatory - proceedings at trial showed reliance by defendant on the proposition that the imputation was "mere vulgar abuse" (see Mundey v Askin [1982] 2 NSWLR 369 at 371-372) - consideration of concept of "vulgar abuse" - held that the jury's decision that the imputation was not defamatory was within the range of conclusions reasonably available.

Defamation - s7A trial - application pursuant to Part 34 rule 8(2) of the Supreme Court Rules - sufficiency of evidence in relation to publication - sufficiency of evidence in relation to identification

WILLS PROBATE AND ADMINISTRATION - rectification of will - mistake obvious - EQUITY - trustees - summons for judicial advice - not appropriate procedure - no question of construction - no problem likely to arise on proper construction

PLEADING - DEFENCE - ISSUE NOT RAISED ADEQUATELY - OBJECTIONABLE PORTIONS STRUCK OUT - COSTS

CORPORATIONS - winding up - statutory demand - appeal from decision of Associate Judge dismissing application for order setting aside demand - PROCEDURE - appeal - from Associate Judge - whether order dismissing application for order setting aside statutory demand is "final order" - whether correct avenue of appeal is to Court of Appeal or court constituted by a judge

CRIMINAL LAW AND PROCEDURE - OBTAINING MONEY BY DECEPTION - SIXTY FIVE OFFENCES - SENTENCE - CONSIDERABLE LOSS TO VICTIMS - ERRONEOUS REFERENCES IN REMARKS ON SENTENCE - TOTAL SENTENCE APPROPRIATE - PRE-CONDITION FOR EXERCISE OF POWER TO INTERVENE UNFULFILLED

Criminal law - sentence - manslaughter - provocation

Review or appeal from Registrar - nature of application and onus - notice to produce (before and at hearing) - procedure at hearing - Uniform Procedure Rules - loss of client legal privilege by disclosure.

INSURANCE - Marine and Aircraft Insurance - non-payment of premium instalments - whether clause providing for cover to cease on non-payment on due date confers election on insurer or has automatic effect - whether automatic cessation of cover is "cancellation" within Insurance Contracts Act, s 59 - distinction between provision for cancellation and provision limiting liability of insurer - whether notice under Insurance Contracts Act, s 59 required. - CONTRACT - Waiver - election between inconsistent rights - waiver of one default does not waive subsequent default. - ESTOPPEL - Estoppel by convention - whether parole evidence of post-contractual conduct admissible to set up conventional estoppel - extent of requirement for "clear and unambiguous" convention where inconsistent with formal contract - whether detriment is a necessary element of conventional estoppel.

CORPORATIONS - application by ASIC for declarations of contravention of various investor protection provisions - court invited to make orders by consent on basis of statements of agreed facts - whether agreed facts warrant making of declarations - whether court should give effect to parties' agreement as to penalty

PROCEDURE [112] - Supreme Court procedure - Practice under Supreme Court Rules - AA Evidence - Other matters - Expert witnesses confer and provide joint report agreeing on whether signatures genuine - Application to adduce inconsistent expert evidence - Circumstances in which application granted.

EQUITY [344]- Interlocutory mandatory injunction- Interference with contractual relations- Plaintiff alleged defendant interfered with plaintiff's customer's internet connection- Whether sufficient evidence of contracts to show irreparable damage or balance of convenience- Duty of plaintiff in interlocutory application for injunction to give evidence of basic facts with due candour.

CRIMINAL LAW - appeal against sentence - break and enter in circumstances of aggravation - whether error in taking into account the applicant's prior convictions as an aggravating factor - whether error in failing to have regard to delay between the commission of the offence and the applicant's arrest - whether error in the application of the discount for the applicant's plea of guilty - whether sentence is manifestly excessive

Appeal from Local Court - attempt to present new case on appeal - no error in point of law - findings of fact supported by evidence - no case for leave on questions of costs.

PROCEDURE [548] - Costs - Jurisdiction - Costs indemnity only - Litigant in person - Whether litigant in person may recover costs of advice concerning conduct of proceedings charged by lawyer who does not appear.

Lease - rent review clauses - whether time of essence in any respect - payment of rent demanded which substantially exceeded rent due - mistake as to legal obligation - mistake induced by lessor's representation about obligation - inference from intention to induce belief that belief was induced - meaning of "anniversary" - construction contrary to ordinary meaning of word to avoid absurdity - power of court to mould language - principles of interpretation - rule as to construction of rent review clauses - indications to contrary of prima facie rule - effect of lenity in one respect and strictness in an other as an indication the strict construction must be adhered to where it is applicable - effect of lessor itself failing to comply with a time requirement - consideration of waiver as estoppel or as election - implied agreement - equitable assignment where assignor ASIC on behalf of defunct company not joined - effect - nature of renewal of a lease - effect of covenant to repair in short form under Schedule 4 of the Conveyancing Act - effect of words "having regard to the condition of the demised premises at the commencement of the lease " - meaning of covenant to replace a worn out item with one "of a like nature and equal value"

CORPORATIONS - arrangements and reconstructions - scheme of arrangement between company and its members - non-compliance with order requiring advertising of scheme meeting - no adverse effect or prejudice - whether such orders of any utility in context of present legislation - scheme approved

CORPORATIONS [284]- Liquidator's remuneration- Company operated non-trading trust fund- Remuneration normally allowed where liquidator administers trust fund responsibly- Distinction between administration of trading trust and non-trading trust- No right to remuneration of non-trading trust- Relevant statutory provisions may limit exercise of discretion to allow remuneration.

CONTRACTS - loans for purposes of residential unit development - claim under loan agreements and guarantees - application for summary judgment against guarantors - issue estoppel - summary judgment granted

CRIMINAL LAW: Application for leave to appeal against sentence - ongoing supply of heroin - whether adequate discount for plea of guilty, assistance to authorities - relevance of observations of sentencing judge during final addresses - finding of special circumstances - whether structure of sentence appropriate - whether adequate weight given to applicant's mental condition.

Criminal law - appeal against severity of sentence - maliciously inflicting grievous bodily harm - discount for plea of guilty - special circumstances - pre-sentence report not tendered in evidence - significant error of fact. - prospects for rehabilitation

Appeal following unsuccessful application for parole - disputed facts - role of Parole Board - adjournment of consideration of application - whether a "[decision] that an offender should not be released on parole" - sentence served before appeal heard - jurisdiction of Court

SENTENCING - dangerous driving causing death - dangerous driving causing grievous bodily harm - guilty plea - licence disqualification - three year automatic statutory period - discretion to shorten disqualification period - driving behaviour unexplained - whether insufficient regard to the offender's subjective case - typical offender in R v Whyte - abandonment of responsibility - momentary inattention or misjudgement - contumacious offending - no change to sentence. (D)

SENTENCING - hindering investigation of serious indictable offence - impermissible finding of aggravating circumstances - unusual example of offence under s.315(1)(a) Crimes Act 1900 - sentence manifestly excessive.

CRIMINAL LAW [411]- Bribery- Joint venture between Local Aboriginal Land Council and developer to develop land- Officer of Land Council received personal benefits from developer for purpose of furthering developer's interests with Council- Whether benefits constituted bribes. PROCEDURE [579]- Costs- Case effectively specific performance suit- Normally only parties to contract should be parties to proceedings- Second defendant added for reasons not directly relevant to case- Second defendant's costs to lie as they fall.

TAXATION AND REVENUE - Financial institutions duty - Certificate of exemption - Extent of Chief Commissioner's power to backdate certificate - Whether Chief Commissioner can relieve taxpayer from a liability already accrued under the Act - Stamp Duties Act NSW 1920, ss 4, 98A, 98J, 98T, 98U, 98W - Held that power to "exempt" encompasses exempting taxpayer from duty due and payable. - STATUTORY INTERPRETATION - Retrospectivity - Where provision expressly confers power to backdate - Backdating necessary to avoid multiplier effect - Held that power to backdate extended beyond one tax period.

CORPORATIONS [340] - Supervision, regulation and correction - Irregularities in proceedings - Extension of time - For winding up application - Meaning of special circumstances - Public interest.

Determination made by costs assessor - abortive application for review - certificate filed in District Court - judgment not set aside - challenge to determination in this court brought out of time - lack of merit and of explanation for default and delay.

CRIMINAL LAW AND PROCEDURE - COMPULSORY FORENSIC PROCEDURE - BUCCAL SWAB - SUFFICIENCY OF EVIDENCE BEFORE LOCAL COURT TO ORDER - STATUTORY OBLIGATION TO GIVE REASONS FOR MAKING ORDER - SUCH REASONS TO MANIFEST BASIS UPON WHICH ORDER MADE

ADOPTIONS - foreign-born child placed in care of adopting parents - whether consent of foreign guardian needed in light of Minister's consent - whether consent of natural parents should be dispensed with - court's power to order that copies of the Adoption Order be provided to foreign agency

CONTRACT - general contractual principles - claim by town planning consultants for remuneration - whether contract varied to remunerate plaintiffs by transfer of real property or payment of equivalent value - whether an implied term for hourly remuneration - RESTITUTION - restitution arising from ineffective contracts - whether the plaintiffs in breach of the contracts - performance of work in expectation of reward - entitlement to quantum meruit - ESTOPPEL - whether representations made - TRADE AND COMMERCE - misleading or deceptive conduct - representations by one party as to that party's future conduct - whether representations actionable under Trade Practices Act ss.51A and 52 and Fair Trading Act ss.41 and 42