Cases and authorities

Criminal law - sentence - murder - attempt to pervert the course of justice - relevance of standard non-parole period

CORPORATIONS - winding up - whether liqudator's lien for fees has priority over rights of secured creditor - whether liquidator or secured creditor has superior right to sell assets the subject of the security - EQUITY - equitable charges and liens - liquidator's lien - whether has priority to chargee under equitable charge - INJUNCTIONS - interlocutory - balance of convenience - relevance of strength of case shown on application for interlocutory injunction - INJUNCTIONS - interlocutory - whether damages an adequate remedy - ways in which whether damages an adequate remedy are relevant to grant of the injunction

Sexual assaults

Costs - dispute with solicitor - right of solicitor to withdraw bill of costs and substitute a new bill - the rule and the exceptions - whether bill in taxable form - right to amend application for assessment - whether costs assessor obliged to give reasons for ruling - whether error of law.

CRIMINAL LAW - Appeal against conviction - Whether the trial judge erred in admitting evidence of the complainant's distressed condition - uncharged acts not complained of - pre-text telephone conversations and email messages - Incorrect directions to jury - Miscarriage of justice

CRIMINAL LAW: Application for leave to appeal against sentence - break, enter and steal in circumstances of aggravation - two matters on Form 1 - relevance of standard non-parole period after plea of guilty - sentence passed before REGINA v WAY.

CONTRACT - goods purchased by party but amount owed charged to another person's account - whether purchasing party liable for cost of goods - TORT - negligence - duty of care - breach - failure of party to advise on and monitor insect infestation programme for cotton crop - damages flowing from breach of duty - diminution of crop yield - CONTRACT - unjust enrichment - whether monies paid under a mistake of fact - restitution - relevant principles

TORTS - negligence - driver of motor vehicle struck pedestrian crossing traffic on Anzac Bridge - whether driver breached duty of care - TORTS - negligence - Roads and Traffic Authority responsible for design and construction of Anzac Bridge - adequacy of signage providing information about presence of pedestrian footpath underneath Bridge - whether duty of care owed to pedestrians - whether RTA breached its duty of care - appellant's presence on Bridge unexpected - contributory negligence - EVIDENCE - application that court view the accident site - fresh evidence - whether site has materially altered since date of accident - Evidence Act 1995 (NSW) ss. 53(3)(e) and 54 - REASONS - adequacy of - BIAS - whether trial judge's comments gave rise to reasonable apprehension of bias

TORT - malicious prosecution - reasonable and probable cause - malice - TORT - false imprisonment - unlawful detention - unlawful arrest - District Court Rules 1973 (NSW), Part 26 rr 7 and 8

Final orders - costs

PROCEDURE - Consent orders - Entry of judgment - Whether can be set aside - Whether this can be done in proceedings for review of Registrar's decision - Need for strong considerations of justice.

CORPORATIONS - deed of company arrangement - remuneration of deed administrator - ineffective delegation of remuneration fixing power to committee of inspection - application for s.447A order validating part of remuneration already paid - like application to allow committee of inspection to fix further remuneration - regime to avoid undue cost in notifying creditors of proposal for remuneration to be fixed by meeting of creditors or by court

PRACTICE AND PROCEDURE - Security for costs - Plaintiff is a special purpose vehicle and lacks assets to pay defendants' costs - Prior application for security for costs was settled by consent orders - Where plaintiff provided security of $50,000 under consent orders - Whether consent orders were a compromise of the claim for security for the whole litigation or up to mediation only - No evidence that plaintiff's sole shareholder would be unable to provide any security ordered - Quantum of security where junior solicitor's hourly rate more than that of senior counsel - Held that consent orders applied only in respect of costs up to conclusion of mediation - Further security for costs ordered.

CORPORATIONS - application for leave to proceed against company under deed of company arrangement - claim in negligence sought to be pursued may have been extinguished by the deed - pursuit of claim may nevertheless avail claimant in collateral claim against insurer - whether grant of leave would be futile

Sentence - Manslaughter - Accessory Before and After Fact.

Income Tax - assessment - taxpayer's right to challenge - significance of s177(1) ITAA - allegations of impropriety by Commissioner - whether litigable - significance of Federal proceedings - estoppel

CORPORATIONS - controllers - directors' rights of access to company documents and financial records - company in receivership - sales of property by receivers - directors seek order compelling grant of access to documents which "record and explain" all "transactions that the defendants have entered into as receivers and managers"

Sentence - manslaughter - mental illness - significance - time limits for orders under s11 Crimes (Sentencing Procedure) Act 1999

CONTRACTS - general contractual principles - alleged oral agreement to compromise claims - whether parties intended only written agreement to be binding - CONTRACTS - Statute of Frauds - need for contract varying contract for sale of land to be in writing - whether parties' contract of that kind - CONVEYANCING - relationship of vendor and purchaser - purchaser's lien - whether arises as security solely for costs awarded to purchaser in specific performance suit

Amendment - judge's discretion miscarried, but further amended pleading provided and leave granted to file it - costs of application for leave to appeal - no question or principle. ND

Damages - no question of principle.

No question of principle

proceedings criminal in nature - importation of tobacco - admission of guilt - convictions - three offences of smuggling - three offences of evading payment of duty imposed by the Customs Act 1901 - three offences of knowingly or recklessly making to a Customs officer a statement that was false or misleading in a material particular - penalties provided by the Act - legal principles applicable - subjective circumstances - principle of totality - deterrence, general and specific - penalties selected to fit the scale of seriousness of each offence, based principally upon the amount of duty evaded

REAL PROPERTY – land under Real Property Act – application by trustee in bankruptcy for cancellation of certificate of title and issue of replacement recording trustees as registered proprietor.

plaintiff awarded damages for personal injury against owner/occupier of defective building - cross-claim by defendant owner/occupier against the local Council - whether Council owed cross-claimant a duty of care - the extent and content of Council's duty of care - whether Council in breach of duty of care to cross-claimant - whether breach of duty of care caused loss or damage to cross-claimant - compliance with Fire Safety Order - construction of stairway - building compliance inspection processes - application of the Building Code of Australia - Council approval of inherently unsafe structure

CONTRACTS - general contractual principles - offer and acceptance - whether notification of workers compensation claim having two elements produced one offer of compromise or two - turns on own facts - no matter of principle

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - Caveats against dealings - adequacy of caveat which claims an "equitable interest"

DEFAMATION- Damages- Appellant's appeal on defence of comment partially successful- Four of eight imputations remaining- Whether reduction in number of imputations necessarily reduces damages- Whether appropriate to assess damages with reference to other defamation cases- Discussion of application of s 46A Defamation Act. ND

CONTRACT - termination - whether termination procedure was followed - decision on terms of non-standard contract - no question of principle.

COSTS - Probate proceedings - appeal from Master's orders on costs of Probate proceedings and remuneration and expenses of Administrator (professional Liquidator) appointed by consent of parties to resolve dispute about entitlement to Probate - Consideration of powers of the Court to make orders as to Administrator's remuneration - Master's orders set aside and discretion exercised again by Court of Appeal - majority decision on re-exercise.

ADMINISTRATIVE LAW - judicial review - procedural fairness - CONSUMER, TRADER AND TENANCY TRIBUNAL - whether Tribunal's order flawed - failure to comply with statutory procedure requiring person joined as party to be served with notice of the proceedings - finding that Claimant aided and abetted company's contravention of the Fair Trading Act 1987 - failure to give Claimant a reasonable opportunity to be heard - D

PROCEDURE [101]- Misnomer- Leave to amend application to set aside statutory demand- ACN and name of plaintiff non-existent- Amendment may be made where identity of party was known and was always intended to be a party- Where party substituted to correct misnomer he or she is taken to be party from commencement of proceedings notwithstanding the expiry of any limitation period. STATUTES [31]- Statutory interpretation- Section missing "as"- Section lacks meaning without addition of word- Whether permissible to assume mistake and read in "as" or must section be strictly construed- Where intention abundantly clear mistake can be rectified to give meaning- Construction of Civil Procedure Act 2005, s 64(4).

INSURANCE - directors' and officers' liability insurance policy - where accepted that insurer obliged to pay insured's defence costs - whether amounts required to be paid within reasonable time - whether payment in advance to counsel of cancellation fees reasonable - whether amount of cancellation fees reasonable - question of amount to be referred to under UCPR 20.14

CORPORATIONS - winding up - leave to proceed against company in liquidation - leave to proceed against company subject to a deed of arrangement - standing to sue concerning alleged breach of requirements of deed establishing prescribed interest scheme - otherwise turns on its own facts

CONVEYANCING - LAND TITLES UNDER TORRENS SYSTEM - Caveats against dealings - Lapsing of Caveats - Application for extension - applicable test - whether seriously arguable case for substantive relief - where previous proceedings claiming same interest compromised - claim not sufficiently arguable - no question of principle. PROCEDURE - Judgments and Orders - Consent order - construction - whether claims not expressly dismissed survive judgment.

Practice and Procedure - Subpoena - Putting the plaintiff to proof - Pleadings - Proper conduct of Commercial List Proceedings - requirement that presentation of cases be tied to identified issues

Criminal Practice & Procedure - application pursuant to s474D of the Crimes Act 1900 - test to be applied - history of appeals - relevance to issues raised in application - no unease in respect of convictions following pleas of guilty.

CRIMINAL LAW - Application for leave to appeal against sentence - armed robbery - special circumstances - sentence erroneously passed under amended s44, Crimes (Sentencing Procedure) Act - approach to sentencing under amended section when special circumstances found

Defamation - Discharge of jury - Whether counsel's address entitled the trial judge to discharge the jury - Adoption - Whether error of discretion - Appeal dismissed.

EQUITY [33]- "Windfall equity"- Dwelling built by mother on daughter and son-in-law's land- Breakdown in relations- No attributable blame- Mother entitled to minimum equity necessary to remedy unconscionable retention of defendants' windfall- Discussion of principles involved in determining appropriate remedy in "windfall equity" cases- General preference is to remedy the detriment suffered in reliance on promise rather than fulfilling expectation- In this case no relevant detriment- Unconscionable for defendants to retain windfall- Plaintiff entitled to charge for increase in value of defendants' land.

Criminal law - Murder - Juvenile - Sentence.

SUCCESSION [1]- Will- Application by minor for leave to make will- Testator received provision from grandfather's estate- Wished to leave his estate to siblings not parents- Leave given.

Dismiss proceedings - s 80 Consumer Credit Code

COMMONWEALTH CONSTITUTION - Trial by Jury - Whether witness giving evidence by video-link violates requirement that trial be held "in the State where the offence was committed" - s80 Commonwealth Constitution