Cases and authorities

BUILDING AND CONSTRUCTION - Application under s 459G of Corporations Act to set aside a statutory demand - Oral agreement for building of aged-care hostel - Adjudication in favour of the defendant filed as a District Court judgment - Consumer Claims Tribunal declined to hear application due to lack of jurisdiction - Dispute as to basis for payment - Dispute as to whether work is a "dwelling" under Home Building Regulations - Home Building Act ss 10, 91(1)(a), 92, 94 - Building and Construction Industry Security of Payment Act ss 32(2), (3) - Corporations Act s 459G, s 459H(1)(b) - Held that there is a genuine dispute about whether the plaintiff is liable for the amount adjudicated - Statutory demand set aside.

CORPORATIONS - winding up - ranking of claims - debt for superannuation guarantee charge payable to Commissioner of Taxation - whether priority in winding up created by s.52 of Superannuation Guarantee (Administration) Act 1992 (Cth) is affected by limit in s.556(1A) of Corporations Act 2001 (Cth)

CONTRACT - where contract between parties set price by reference to pricing index - where index claimed to reflect the US Gulf Coast contract price for ethylene - where methodology by which index derived changes - whether change in methodology changed the index - whether any change in methodology changed the index in a material way - whether the index ceased to reflect the US Gulf Coast contract price for ethylene - no question of principle - EXPERT EVIDENCE - where court expert appointed - where opinions of court expert conflict with opinions of other experts - whether Court should prefer views of court expert

CONTRACTS [4][7][9]-Brokers of insurance and financial products-Contract for sale of goodwill in part of business based on client list-Whether contract incomplete for lack of essential terms-Whether nature of property in client list sufficiently clear-Property is ability to produce income stream from list Price must almost always be identified-Insufficient identification of price or nature of property indicated arrangement was in third class of Masters v Cameron. CORPORATIONS [105]-Directors' duties-Duty not to improperly use information gained as director-Information must be gained because of defendant's role as director. EVIDENCE [138]-Clients' status reports-Original material on which reports are based must be available if presented by non-accountant-Difficulties arising where material stored on computer. INTELLECTUAL PROPERTY [112]-Confidential information-Client contact list-Ex "employee" used list to attract clients away from former "employer"-Whether information sufficiently confidential for equity to protect in absence of express or implied contractual term-Employee entitled to rely upon retained knowledge-Nature of relationship between employer and employee and instructions given to employee important-Question of fact-Client lists generally in borderline position.

PROCEDURE [93] - Supreme Court procedure - Practice under Supreme Court Rules - Summary disposal - Power to terminate summarily - Principles applicable.

CONTRACT - whether purported clawbacks under cl 1.6 amount to refusals to pay - meaning of "refuse" - whether such clawbacks could be deducted from amounts due for later months - whether refusals to pay could be accumulated and applied against any final tranche payment - whether refusals to pay on one traffic stream can be applied against amounts owing under another traffic stream - whether application of grammatical principles appropriate in construction of agreement - SET-OFF - equitable set-off - nature of test to be applied - where accepted that set-off applied - where claims subject of set-off are denominated in different currencies - whether set-off operates to extinguish claim at date of judgment or as equity arises

REAL PROPERTY - proceedings by executrix of estate, as registered proprietor, to obtain possession of estate property for sale - application for summary judgment - orders made.

LANDLORD AND TENANT - creation of relationship of landlord and tenant - alleged oral lease - whether concluded oral contract for lease - no question of principle - turns on own facts

CORPORATIONS - winding up - liquidators in office in Australia - provisional liquidators in office in England - application by Australian liquidators for convening of meeting to consider creditors' scheme of arrangement - Australian liquidators seek adjournment with a view to application by provisional liquidators to English court for determination of matter of English law considered relevant to arrangement

TRADE PRACTICES - Fair Trading - Misleading or deceptive conduct - Representation by mortgage broker to purchaser that price of unit was "off the plan" price - Whether representation in "trade or commerce" - Whether purchaser relied on representation - Reasonableness of reliance - Whether purchaser suffered damage as a result of reliance - Fair Trading Act 1987 ss 42, 68 - NEGLIGENCE - Negligent misrepresentation - Whether mortgage broker's conduct in breach of duty of care to purchaser - EVIDENCE - Appeals - Fresh evidence - Evidence of attempt by party to suborn witness - Whether evidence should be admitted on appeal as fresh evidence - Whether high degree of probability that evidence would have produced different finding at trial - Whether evidence an admission of party having a bad case - Supreme Court Act 1970 s 75A(7), (8) - EVIDENCE - Illegally obtained evidence - Party tape-recorded conversation without knowledge or consent of other party - Whether evidence should have been admitted - Gravity of contravention - Whether contravention deliberate or reckless - DAMAGES - Correct measure where misleading conduct induces party to enter contract of purchase

Negligence - passenger tripped over coaming at doorway between deck and internal area of cruise boat - blue-grey deck and riser, white door and bulkhead to the sides, metal strips on top of coaming and at foot of riser - whether boat operator's duty of care required more by way of distinguishing paintwork or a sign or announcement - no known falls in 10,000 trips annually over twelve years - (by majority) risk minimal - response of reasonable boat operator did not require more.

Administrative law - Judicial review - Natural justice - Jurisdictional error - Procedural fairness - Consumer, Trader and Tenancy Tribunal - Whether particular procedures in Tribunal flawed by failure to comply with mandatory statutory procedures - Legislation enabling Tribunal by notice in writing or by oral direction to join a person as a party in the proceedings - Tribunal fails to make order joining claimant as party to cross-claim - Whether claimant joined into proceedings by "cross-claim" filed before Tribunal - Whether proper construction of legislation showed obligation to proceed in strict compliance with its terms - Failure to serve claimant with orders of Tribunal - Whether adjournment of Tribunal hearing ought to have been ordered to give a party proper opportunity of adequately presenting his case - Practice - Joinder of party

Corporations Law. Application to set aside a statutory demand on the basis that the debt is not yet due. Held that such a demand could not be set aside under s 459 J (1)(b) of the Corporations Act.

CONTRACTS - general contractual principles - intention to enter legal relations - effect of "entire agreement" clause - construction of a particular agreement - factual findings concerning quantum

MENTAL HEALTH - guardians, committees, administrators, managers and receivers - appointment by Queensland Supreme Court of Protective Commissioner as manager of part of a person's estate - procedural irregularities in circumstances in which appointment made - whether order recognised as a valid order in Queensland - whether order recognised as a valid order elsewhere in Australia - MENTAL HEALTH - effect of mental illness or disability on civil rights and duties - effect of appointment of Protective Commissioner as manager of part of a person's estate on that person's ability to give a power of attorney - steps Protective Commissioner should take when a power of attorney has been given by such a person - JUDGMENTS AND ORDERS - orders of a superior court of a law district - treated as valid within that law district unless and until set aside - effect on validity of superior court acting beyond jurisdiction - effect of court mis-stating the source of its authority to make an order - effect of full faith and credit provision in section 185 Evidence Act 1995 (Cth) on interstate recognition of a judgment - EVIDENCE - full faith and credit provision in section 185 Evidence Act 1995 (Cth) - meaning of "full faith and credit" - whether section 185 has substantive effect or only evidentiary effect - STATUTES - construction - grant of jurisdiction to superior court - STATUTES - construction - procedures to be followed by a court in exercising the jurisdiction conferred upon it by a statute - PRACTICE - jurisdiction - effects of conferral of jurisdiction by Jurisdiction of Courts (Cross-Vesting) Act 1987 of the various States upon the jurisdiction of the Supreme Court of other States and Territories

Appeal decision of CTTT - can a party bring more than one claim against a builder

CONTRACT - repudiation - requirement of leave to terminate following specific performance order - whether insistence on particular views of the contract evinced repudiatory intention - repudiation, being a serious matter, not lightly to be found - construction of contract - effect upon construction of conduct subsequent to contract - effect on obligations under a lease of its having a retrospective commencement date - whether interest could be payable from a date before the execution of the lease in the absence of a specific term to that effect - effect of a waiver of the right to timely payment of rent upon a claim to interest upon that rent as a claim not consistent with the waiver.

Extension of time to commence proceedings, ss 60G and 60I Limitation Act 1969 (NSW) - Voyager/Melbourne collision)

Criminal Law - Sentencing - No point of principle.

Ambit of appeal - exercise of discretionary power to award costs - jurisdiction of Tribunal on question of costs.

Application for rectification of the Rent Review clause of a lease - Whether the plaintiff has established an identical corresponding contractual intention different from that which is in the Lease - Common mistake

BUILDING AND CONSTRUCTION - good faith - meaning of good faith - whether attempt made in good faith by adjudicator to exercise powers under the Act

CONVEYANCING [74][95]- Breach- Vendor paid licence fees for occupation of purchaser- Fees to be deducted from balance of purchase monies- Breach by purchaser- Whether recovery allowed to purchaser- Whether purchaser to be compensated for increase in value of property because of improvements made whilst in possession- Whether deposit should be forfeited. ESTOPPEL [41]- Election- Forensic election- Plaintiff chose not to pursue claim for deposit at original hearing- No evidence that plaintiff needed to choose between two inconsistent courses. EVIDENCE [96]- Without prejudice offer of settlement- Admissible for purpose of contradicting evidence that may mislead Court- Evidence Act 1995, s 131(2)(g). PROCEDURE [107]- Notice of motion- Return of deposit- Capacity of Court to hear motion for return of deposit where claim not made in original specific performance suit- Preferable for deposit claim to be heard simultaneously with specific performance suit but not imperative.

CORPORATIONS [180]- Voluntary administration- Meeting of creditors- Whether appropriate to further adjourn meeting that has already commenced- Meeting must be informed of possibility that application for extension will be made- Adjournment extended by further 60 days.

Compulsory acquisition of part of land - compensation - market value of acquired land - value of acquired and retained land less value of retained land - values to take account of highest and best use - whether valuation of retained land failed to do so - depends on facts. D

Guarantee - Necessity for a contract relating to three parties: the creditor, the principal debtor, and the surety or guarantor - Principal and agent - ostensible authority - distinguish between the ostensible authority of a director of a company to bind the company, and the ostensible authority of that director to bind a fellow director - Estoppel - estoppel by conduct - implied or ostensible authority of A to bind B.

NEGLIGENCE - standard of care - collision between motor vehicle and infant pedestrian - whether driver negligent - whether accident avoidable if driver maintained proper lookout - EVIDENCE - use of expert evidence (D)

Liability of an entity to pay fees for use, occupation or rent of premises on Crown Land - Identity of entity responsible for fees - Cross claim for possession of goods left on subject premises - Conversion - Detinue - Tresspass to goods

Sentence - murder - maliciously cause grievous bodily harm - young men - significance - relevance of "standard non-parole period" - meaning of phrase

PROCEDURE - costs - plaintiff loses at first instance and appeals - whether to stay, pending appeal, the costs order made at first instance in favour of the defendant - from what date interest runs on a cost order under section 95(1) Supreme Court Act 1970 - whether costs of a party successful on a Notice of Motion should include costs incurred prior to the date of filing of the Notice of Motion

Family Provision. Application by an ex wife and daughter of deceased. Property settlement with ex wife affected by deceased's failure to fully disclose his assets. Existence of factors warranting the making of the application under s9(1) of the Family Provision Act 1982. - Daughter deliberately cuts off all contact with deceased for last 12 years of deceased's life. Her claim dismissed.

CORPORATIONS - scheme of arrangement - reduction of capital - application for order approving scheme - two matters of non-compliance brought to court's attention - each involving taking of step before relevant ASIC lodgment or registration which was effected soon afterwards - ASIC unwilling to issue "no action letter" before consideration by court - no appearance by ASIC - procedural irregularities - no prejudice - scheme approved

EQUITY [38], [44] - General principles - Fraudulent and innocent misrepresentation - The representation - Generally - Meaning of representation - Whether representation made in absolute terms that land could be developed by erection of four villas - Materiality, inducement and reliance upon representation - Extent of reliance on representation - TRADE AND COMMERCE [94], [136] - Misleading or deceptive conduct - Particular classes of conduct - Real estate transactions - Purchase of land for villa development - Whether representation made in absolute terms that land could be developed by erection of four villas - Enforcement and remedies - Actions for damages - Causation - Causal link between representation and loss - Extent of reliance on representation.

NEGLIGENCE - duty of care - employer and employee - where respondent slipped and was injured at work - duty to devise and provide a safe system of work - reasonable practicable alternate system - DAMAGES - calculation of future economic loss - clasification of the respondent as an "odd lot" - domestic assistance - future out of pocket expenses - CONTRIBUTORY NEGLIGENCE - where injured party's inadvertence leads to injury - LIABILITY - where respondent slipped and was injured at work - whether there was a failure to devise and to provide for a safe system of work - whether risk could be avoided by reasonable practicable measures - non-delegability of employer's common law duty of care - DAMAGES - calculation of future economic loss - significance of primary judge's classification of the respondent as an "odd lot" - calculation of domestic assistance - calculation of future out of pocket expenses - CONTRIBUTORY NEGLIGENCE - where injured party's mere inadvertence leads to injury (D)

Appeal decision of Local Court Magistrate - refusal to set aside default judgment

CONVEYANCING [75] & [96]- Breach of contract- Purchaser seeking recovery of deposit and instalments- Whether relevant that purchaser had history of defaulting on land contracts.

CONTRACT - ORAL TERMS - Formal agreement executed by the parties - whether an oral collateral contract made - question of fact - no question of principle.

PROCEDURE - Supreme Court procedure - pleading amended by leave in a way which withdraws an admission previously made - whether any leave needed subsequently to withdraw that admission - whether raising matters which had been conceded for years makes a pleading embarrassing - need for pleading of matters relied upon when seeking order for extension of time to make application under section 29A Wills, Probate and Administration Act 1898 for rectification of a will - SUCCESSION - WILLS PROBATE AND ADMINISTRATION - rectification of will - need to plead basis on which extension of time for making application for rectification is sought

COURTS and JUDGES - conduct of trial - limiting issues on new trial - trial Judge introduced important new issue when judgment was reserved, amended application and awarded remedies on basis not alleged at hearing and not the subject of evidence. Decision set aside and order for re-hearing before another Judge - consideration of principles on which Court of Appeal limits issues on new trial.

COSTS - application for indemnity costs - where third defendant sent Calderbank letter and made separate offer of compromise prior to trial - whether Calderbank offer was reasonable - whether rejection of offer was unreasonable - where reasonableness determined objectively - no question of principle

EQUITY - Mareva orders - application after close of evidence in seven day trial - whether danger of dissipation of assets shown

PROCEDURE - re-opening after judgment - unsuccessful defendant alleges error by first instance judge - whether first instance judge should re-open decision - test of obvious error or obvious miscarriage - whether satisfied in relation to substantive decision - re-opening thereof refused - where judge made order that costs follow event as adjunct to substantive order and without submissions on costs - appropriate to vary costs order after hearing argument

CORPORATIONS - winding up - appointment of two liquidators by the court - one liquidator about to resign - procedure for installation of replacement liquidator by the court

Practice and procedure - Costs - Security for costs - General principles - Impecunious plaintiff - Bodies corporate - Requirement that appropriate financial disclosure be made concerning position of those likely to benefit in the circumstances that proceedings are successful - Purpose of a security for costs order is a protective jurisdiction to ensure that the primary purposes for having costs orders themselves can be achieved - A defendant is protected against the risk that a cost order obtained at the end of the proceedings may turn out to be of no value by reason of the impecuniosity of the plaintiff - Jurisdiction assists both the compensation purpose as well as the public interest objective - Plaintiff Company in liquidation - Defendant Bank - Claim by Company that Bank wrongfully terminated certain finance facilities and without justification proceeded to call up indebtedness, to appoint administrators and to sell property under power of sale under mortgage - Complex of litigation between Bank, Company and Mr Carpenter, former chief executive officer and director of Company, in several jurisdictions - Leave granted to Mr Carpenter to bring proceedings on behalf of Company - Leave conditional on Mr Carpenter paying, bearing and indemnifying Company against all costs charges and expenses of and incidental to the bringing and continuation of the proceedings brought by him on behalf of the Company - Proceedings commenced in the name of Company against Bank - Bank seeks security for costs - Overriding Purpose Rule - Proper approach to multiplicity of litigation raising same issues

Monetary jurisdiction of the Tribunal - limitation applies to orders - need for amendment of regulation 6 - statutory constitution and implicit amendment.

REAL PROPERTY - easements - sale and transfer of adjoining lots (Lot 6 and Lot 12) by common vendor to separate purchasers - contracts and completion simultaneous - whether purchaser of Lot 12 agreed to grant purchaser of Lot 6 right of way over existing driveway on Lot 12 servicing Lot 6 - whether easement created by estoppel - whether easement over Lot 12 in favour of Lot 6 arose by implication of law under rule in Wheeldon v Burrows as applied in cases of simultaneous sale and conveyance