Cases and authorities

Sentence appeal - sexual offences - offender with compromised mental state - relevance - reduces importance of general deterrence - increased importance of personal deterrence

CONVEYANCING - Contract for sale of land - Purchaser seeks return of deposit - Where purchaser purported to rescind for vendor's failure to provide release of restrictive covenant - Where vendor purported to terminate for purchaser's failure to complete - Construction of term granting right to rescind - Vendor's notices to complete invalid - Whether vendor able to complete - Who could release covenant - Both parties had purported to rescind and both had repudiated contract - Vendor also purported to accept purchaser's repudiation - Held neither party had terminated the contract - Contract had been abandoned - Purchaser entitled to deposit.

CORPORATIONS [34]- Oppression- Joint venture company- Minority parties excluded from affairs of joint venture company by majority- Both sides contributed to the unworkability of joint venture's business- Majority's exploitation of legal rights over minority clearly oppressive- Whether appropropriate to de-merge joint venture by dividing up assets- No precedent for doing so- In this case more appropriate to order winding up.

Strike out paragraphs of further amended statement of claim - malicious prosecution

Poker machine entitlements under Gaming Machines Act 2001 - whether entitlements capable of being held on trust - whether former holder of hotelier's licence could retain the benefit of the transferability of poker machine entitlements - whether entitlements capable of being severed from hotelier's licence - whether lessor of hotel premises had a financial interest in the hotelier's licence for the purposes of s19 of the Gaming Machines Act

EVIDENCE - Legal bias - On part of medical expert - Damages sought for injuries arising out of motor vehicle accident - Conflicting medical evidence - Whether primary judge erred in preferring evidence of medical practitioner retained by respondent on basis that it was the only "unbiased" medical report - APPEALS - Error in exercise of discretion - Whether primary judge's discretion miscarried in refusing leave to admit medical reports pursuant to Pt 28 r 8(6) District Court Rules - APPEALS - New trial - Whether substantial wrong or miscarriage occurred - Whether error deprived appellant of possibility of successful outcome - Whether properly conducted trial could have produced different result

Action for malicious prosecution - prosecution found to be without reasonable and probable cause - whether for improper purpose - plaintiff asserted actual purpose of putting pressure on her to cooperate in investigation of other matters - alternatively that should be concluded that was for an improper purpose of some kind - judge not satisfied as to either - whether judge in error - held error not shown. D

EMPLOYMENT - termination of Contract of Service of Director and CEO- claim by employer for loan account and defence that directors earlier agreed to release loan when employee agreed to extend term of service - Trial Judge rejected employee's evidence - appellant made criticisms of trial process and Trial Judge's expression of reasons for rejection of employee's evidence - criticisms of cross-examining counsel - Trial Judge's decision on facts not shown to be in error, appeal dismissed. - EVIDENCE - cross-examining counsel - conduct of counsel and form of questions.

DEFAMATION - PRACTICE AND PROCEDURE - Two articles in newspaper - Whether open to plaintiff to plead them separately, or whether they had to be pleaded as one publication - Previous decision against plaintiff in respect of very similar publication in another newspaper - Whether proceedings an abuse of process.

Share sale agreement - company conducted insurance broking business - principally CTP and TPPD cover for taxi operators - cover mostly placed with particular underwriter - purchaser aware underwriter said would no longer deal with broker - underwriter then entered into agency agreement with broker - vendor told purchaser that relationship with underwriter "back on track" - purchase went ahead - underwriter complained broker not accounting for premiums in timely manner - terminated agency agreement - brokerage income dried up - business collapsed - WHETHER misleading or deceptive conduct in telling purchaser relationship back on track - on facts, no - WHETHER under terms of sale agreement providing for adjustment in price according to brokerage income purchaser entitled to payment of money - adjustment terms provided for preparation of Specified Accounts and adjustment according to the Specified Accounts - Specified Accounts not prepared - on construction of sale agreement, no entitlement to payment - WHETHER breaches of warranties in sale agreement as to capacity to account for premiums as required by agency agreement - construction of agency agreement - no breach - WHETHER breach of warranty in sale agreement as to unusual or onerous provision - time for accounting for premiums unusual - but breach in that respect not shown to have caused loss - entitlement to nominal damages only. D

Challenge to decision on appeal from adjudication - new evidence - fresh hearing or appeal - statutory construction - power to order payment of costs when appeal is dismissed because of specified reasons - meaning of "lacking in substance" - the making of the order is discretionary - extension of time.

PROCEDURE - contempt, attachment and sequestration - where the litigant in contempt of Land and Environment Court to be heard in Supreme Court proceedings - whether structure of the law concerning not hearing a person in contempt is a general rule subject to various exceptions, or a matter of discretion - exception requiring the contempt to have been in the same cause - significance of many judgments not recognising the exception requiring the contempt to have been in the same cause - factors relevant to exercise of discretion about whether to hear a litigant in contempt - JUDGMENTS AND ORDERS - reading reasons for judgment secundum subjectam materiam - CRIMINAL LAW - sentence - fines - procedures for enforcement

CORPORATIONS - company deregistered - application for reinstatement by former liquidator - deregistration following lodgment by liquidator of form appearing to be Form 523 but departing from that form in minor respects - no occasion for lodgment of Form 523 - whether deregistration regular - whether ASIC's unilateral power to reinstate exercisable

CRIMINAL LAW: - Appeal by Crown under s5F(3A) of Criminal Appeal Act - rejection of evidence of photograph of accused taken by police - accused a child - whether posing for the photograph amounted to an admission - whether Part 10A of Crimes Act complied with - exercise of discretion under s138, Evidence Act

CRIMINAL LAW - an offence of supplying not less than a large commercial quantity of heroin and an offence of supplying not less than a large commercial quantity of cocaine - CONVICTION APPEAL - whether trial proceedings miscarried through the re-examination of a witness who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant's family which had resulted in the death by shooting of a person - whether trial proceedings miscarried by reason of outbursts by the family of the appellant and the appellant himself on a number of occasions - whether the trial proceedings miscarried through the remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury - whether the directions given by the trial judge on the requirement for proof of the element of quantity in charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate - whether directions given by the trial judge as to the potential unreliability of certain witnesses were adequate - SENTENCE APPEAL - life sentence - whether manifestly excessive

INDUSTRIAL LAW - Industrial Relations Commission - Jurisdiction - Unfair - Contract - Franchise Agreement - Comprising Lease and Licensing Agreements - Whether agreement "whereby person performs work in any industry" - Whether Commission has jurisdiction - Industrial Relations Act 1996, s106 - INDUSTRIAL LAW - Industrial Relations Commission - Jurisdiction - Unfair - Contract - Franchise Agreement - Comprising Lease and Licensing Agreements - Where relief sought would fundamentally alter the parties' rights and liabilities - Whether relief sought had close relationship with performance of work - Whether Commission has jurisdiction to grant relief - Industrial Relations Act 1996, s106

No question of principle.

TRUSTS - Express trusts - Where money borrowed for purpose of purchasing company - Where money held on trust for lender - Where money paid as deposit - Where deposit returned - Whether returned deposit held on trust for lender - Discussion of Quistclose trusts - TRUSTS - Express trusts - Where subscription agreement created express trust of subscription price - Where subscription monies paid by cash and amounts set-off - Whether amounts set-off part of subscription price - Whether amount set-off held on trust - Whether any property capable of being subject-matter of trust - TRUSTS - Resulting trusts - Discussion

CORPORATIONS - statutory derivative action - application for leave under Corporations Act 2001 (Cth) s.236, 237 by member of deadlocked company to defend proceedings against company & to bring cross claim against other member and director - whether leave may be granted if applicant fails to satisfy all five criteria in s.237(2) - whether leave may be granted to defend proceedings on behalf of a company - whether leave may be granted nunc pro tunc - whether judgment as to probability of company not itself bringing proceedings to be made on current facts or deferred - whether good faith requirement satisfied in absence of sworn assertion of honest belief in cause of action - whether personal character and qualities of applicant relevant under s.237(2)(c) - whether leave should be on terms that company protected from costs - whether leave to defend on behalf of company should be granted when same issues can and will be raised by other defendant - appropriate costs order when granting leave

FAMILY LAW - Adoption - Application for orders dispensing with consent of natural parents and foreign guardian - Ancillary orders dispensing with need for notice to parents and guardian also sought - Where Korean law confers anonymity upon natural parents - Where federal Minister by operation of law becomes guardian to the exclusion of all others - Consent of Korean guardian not required - Adoption Act 2000 (NSW) ss 52, 54(1)(a), 66, 67(1)(a), 72(2)(a), 77 - Immigration (Guardianship of Children) Act 1946 (Cth) ss 5 and 6 - Held that trying to find out the natural parents' contact details is not a "reasonable inquiry" as contemplated by s 67 of Adoption Act - Consent dispense order and order for adoption made.

CORPORATIONS - winding up - just and equitable ground - corporation not under valid and effective management - CORPORATIONS - directors - purported appointment of a bankrupt who is also subject to an ASIC banning order as a director - validity - CORPORATIONS - share held by bankrupt - powers of Official Trustee in relation to that share - BANKRUPTCY - trustees - powers in relation to a share held by the bankrupt - BANKRUPTCY - control over person and property of debtors and bankrupts - capacity for bankrupt to be appointed a company director

CRIMINAL LAW - offence of affray under s.93C Crimes Act 1900 - elements of offence - proof of offence where several accused persons are charged and precise violent acts of each accused person cannot be identified clearly

MORTGAGES - MORTGAGES AND CHARGES GENERALLY - nature of a floating charge - whether a particular charge is a fixed charge or a floating charge - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - adequacy of caveat which claims an "equitable interest" - extent of power under section 74L Real Property Act 1900 to disregard failure by caveator to comply strictly with requirements of Real Property Act and Regulations with respect to form

Confidentiality regime - Trade rivals - Need to have access to document to obtain legal advice

Costs - Interlocutory hearing

PROCEDURE - costs - partly successful appeal against liquidator's rejection of proof of debt - whether liquidator delinquent in such a way that costs against him should be assessed on the indemnity basis and he should be denied recoupment out of company's assets

Join WorkCover as a party - review

PROCEDURE - costs - no matter of principle

COSTS - whether indemnity or conventional - principles - reasonableness of defendant's non-acceptance - outstanding particulars as at offer - significance of late provisions of discoverable documents - significance of complexity of issues - notice of compromise requiring acceptance without allowance for significant vacation rule - whether valid notice - extent by which judgment exceeded offer.

CORPORATIONS [207]- Statutory demand- Application to determine validity- Defect in affidavit verifying- Affidavit stated that creditor "believed" that debt was due and payable- Whether belief that debt is due and payable is a verification of the existence of a debt or merely an assertion of the deponent's state of mind- Held a mere defect under Corporations Act, s 459J- Defect in affidavit verifying not fatal to a winding up based on the statutory demand it verifies.

TRUSTS - constructive trusts - arising from failed domestic relationship in accordance with Baumgartner v Baumgartner (1987) 164 CLR 137 - those principles applicable to domestic relationship between parent and child - differences between Baumgartner source of equitable obligation and somewhat similar sources of equitable obligation

CORPORATIONS - external administration - winding up - liquidator's examination - failure of examinee to attend when summoned - warrant for arrest - grounds for issue - relevant discretionary considerations - whether order should be made ex parte - whether warrant should lie in the Registry before execution - whether provision should be made in warrant for examinee to give security for attendance - PROCEDURE - warrant for arrest to secure attendance of witness - grounds for issue - relevant discretionary considerations - whether order should be made ex parte - whether warrant should lie in the Registry before execution - whether provision should be made in warrant for witness to give security for attendance

CORPORATIONS - insolvent trading - directors' liability - whether debts incurred - whether company insolvent - whether reasonable grounds for suspecting insolvency existed - whether defendant director aware of such grounds - whether defendant director failed to prevent incurring of debts - whether any defence available - CONTRACTS - general contractual principles - whether contract formed - whether case within any of first, second and fourth Masters v Cameron categories - RESTITUTION - restitution arising from incomplete contract - performance of work in expectation of reward - entitlement to quantum meruit - when quantum meruit debts incurred

Security for costs - External plaintiff

Succession. Family Provision. Whether Plaintiff is an eligible person. Assserted domestic relationship. Asserted membership of same household. Whether Plaintiff was living with Deceased. Obligation upon an applicant to disclose as fully and as frankly as possible all details of applicant's financial and material circumstances. Whether Plaintiff has, in any event, been left without adequate provision for his proper maintenance. Circumstances in which it is appropriate to order indemnity costs against an unsuccessful applicant.

Crown appeal - Maliciously inflict grievous bodily harm on child - insufficient weight attached to breach of trust and failure to seek medical care.

STATUTORY DUTIES - breach of duty under reg 73 of the Construction Safety Act 1912 (NSW) - meaning of "carries out any construction work" - meaning of "access" - meaning of "passageway" - whether contributory negligence is an available defence - NEGLIGENCE - breach of duty of care - reasonableness of the existing safety system - CONTRACTS - indemnity clauses - ambiguity - the principle in Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 applies - an indemnity clause, when ambiguous, is usually to be construed in favour of the person providing the indemnity - meaning of "any act, neglect or default" - meaning of "as a result of" - DAMAGES - assessment by trial judge - adequate reasons to be given by trial judge - standards laid down in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 and Hume v Watson [2005] NSWCA 148 must be complied with. D

Criminal Law - Sentencing for Hinder police investigation

Construction contract - Building and Construction Industry Security of Payment Act 1999 - Purpose of the Act - Plaintiff builder and defendant local government council - Builder serves payment claim on council - Council fails to serve a payment schedule on builder within specified time - Builder seeks summary judgment - Council claims payment claim served in context of misleading and deceptive conduct - Council claims builder estopped from relying on payment claim - No arguable case - Summary judgment awarded

SENTENCING - obtain valuable thing by deception under s.178BA Crimes Act 1900 - dishonest use of credit card numbers of other persons to purchase air tickets and accommodation by telephone - relevance of sentence imposed upon associate of applicant who was not a co-offender - factors relevant to sentence for offences involving dishonest use of credit cards

Criminal Law - Sentencing - offender punished twice for overlapping criminal conduct - credit for prior imprisonment for the criminal conduct

Termination of employment - s84 Industrial Relations Act 1996 - Industrial Relations Commission decision that s84 was not engaged - s 179 Industrial Relations Act 1996 - mandamus sought - no appellate jurisdiction - no prerogative jurisdiction - motion summarily dismissed. (ND)

PROFESSIONAL NEGLIGENCE - mortgage - notice of default - exercise of power of sale - ss57, 58, 58A Real Property Act 1900 - Notice under s57(2)(b) - arguable invalidity of notice - arguable prematurity of notice - date of service - failure to seek an injunction - advice that an injunction should not be sought - delay - solicitor's belief that proceedings would be hopeless and an abuse of process - application of s58A - loss of a financial advantage - loss of bargaining opportunity - where client did not lose anything of value - where solicitor was not engaged in relation to financial dealings. (ND)

WILLS PROBATE AND ADMINISTRATION - whether document satisfies requires under s18A of Wills Probate and Administration Act 1898 (NSW) - will only witnessed by one person - will admitted to probate

CORPORATIONS - Officers of a corporation - chief financial officer - executive director of reinsurance business - meaning of "executive officer" - statutory standard of care and diligence - content of standard - application to profit forecast in target's statement in response to takeover bid - application to due diligence process in respect of profit forecast - statutory duty to act honestly - application to statements made during a meeting with auditors and financial experts - application to letter offering to take back risk in order to obtain financial reinsurance