Cases and authorities

CORPORATIONS - winding up - statutory demand - application to set aside - statutory demand based on guaranteed debt - circumstances in which guarantor of a specific debt can avail itself of cross-claims of the principal debtor against the creditor - whether on the facts any plausible contention that such a cross-claim exists - whether "some other reason" within section 459J(1)(b) Corporations Act to set demand aside - appropriate time by which to extend time for compliance with statutory demand

Family provision - application by widow of deceased - long marriage - life estate determined - legacy of greater part of estate provided to the plaintiff - no matter of principle.

CONTRACT - where plaintiff and defendant concluded Management Rights Agreement and Unit Sale Agreement - where common ground that Unit Sale Agreement rescinded - whether Management Rights Agreement terminated - whether implied term that lawful rescission of Unit Sale Agreement determines Management Rights Agreement - whether Management Rights Agreement continues to be enforceable upon rescission of Unit Sale Agreement - whether Management Rights Agreement discharged by frustration after rescission of Unit Sale Agreement - whether plaintiff entitled to forfeit deposit for Management Rights Agreement - whether plaintiff entitled to damages - no question of principle

CORPORATIONS - winding up - liquidator is executive director of company carrying on insolvency administration business - termination of employment - employer seeks specific performance of term requiring former employee to facilitate assumption of his insolvency appointments by another employee - former employee, as liquidator of various companies, requires employer to deliver to him books of those companies in its possession - whether court should vary decision of former employee as liquidator to require delivery of books by employer

CORPORATIONS - statutory derivative action - application for leave under s 237 of Corporations Act 2001 (Cth) by former officer to bring action against joint-venturer and directors in name of company - where proceeding partly stayed after motion for security for costs - whether applicant acting in good faith - whether it is in best interests of company to grant leave - whether court should make orders imposing conditions - whether court should authorise company to execute a litigation funding agreement

CRIMINAL LAW AND PROCEDURE - EXTENSION OF TIME FOR APPEAL - GROSS DELAY EXCEEDING FOUR YEARS - INSUFFICIENT EXPLANATION FOR DELAY - NO APPARENT MERIT IN GROUNDS SOUGHT TO BE ADVANCED IN CHALLENGE TO SENTENCE - EXTENSION SHOULD BE REFUSED

CRIMINAL LAW AND PROCEDURE - MANSLAUGHTER - SENTENCE - VICTIM SUFFERING DEMENTIA IN CARE OF OFFENDER WHO WAS HIS NIECE - INAPPROPRIATE SEXUAL BEHAVIOUR BY VICTIM IN PRESENCE OF CHILDREN - OFFENDER'S BELIEF THAT CHILDREN MAY HAVE BEEN MOLESTED - VULNERABILITY OF VICTIM RELEVANT TO ASSESSING LEVEL OF VIOLENCE ON PART OF OFFENDER - NO ERROR OF PRINCIPLE BY SENTENCING JUDGE - ASSESSMENT WITHIN RANGE OF DISCRETION

Criminal Law - Crown appeal - 3 offences intentionally cause fire with recklessness as to the spread of the fire - plea of guilty - two offences of take and drive conveyance without consent on Form 1 - whether sentences manifestly inadequate - failure to give reasons for departure from standard non-parole period - whether sentencing Judge misapplied s 54B(2) Crimes (Sentencing Procedure) Act and failed to apply section 54B(3) - whether sentencing Judge failed to impose sentences adequately reflecting the objective seriousness of the offences - consideration of totality principles and determination that all sentences to be served concurrently - finding by sentencing Judge that the offences were impulsive acts.

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Matters for consideration of adjudicator - Alleged error in construction of contract - Alleged error in application of s.34 of the Act - Whether such errors could invalidate determination.

PROCEDURE - COSTS - Appeal upheld and case remitted on limited issues - Whether costs of appeal should follow event - Whether order should be made as to which judge is to conduct further hearing.

SECURITY FOR COSTS - no question of principle - ND

Appellant/plaintiff was employee of contractor to Long Bay Gaol. She was employed part time to supervise gym. A weight machine got stuck and, in attempting to free it, weights in the machine crushed her foot. The appellant sued the Department as "occupier" of the gaol. Trial Judge held accident appellant's own fault. Trial Judge failed adequately to address Shirt Calculus or to make sufficient findings of fact. There being some evidence that there was a duty of care and breach of that duty, the case should be remitted to the District Court for retrial.

PRACTICE - confirmation of informal service

Appeal decision of Local Court Magistrate - fire - candle

INSURANCE - life insurance - whether a disability income protection policy not necessarily of more than three years duration is a life policy - CONTRACT - whether variation of contract agreed - whether defendant estopped from asserting variation to contract agreed - TRADE PRACTICES - misleading and deceptive conduct - alleged to arise from terms in which notification of acceptance for insurance given - DAMAGES - circumstances in which a person insured under a policy providing periodical payments during disability can recover a lump sum for loss of future benefits under the policy - INSURANCE - group insurance policy taken out by trustees - consideration of nature of legal rights of person insured under such a policy - DAMAGES - assessment of damages for personal injury - RECTIFICATION - when available

STATUTORY INTERPRETATION - Section 151A of Workers Compensation Act 1987 and elections thereunder - History of section and its predecessors - Claimant held to have made his election in circumstances - No abuse of process by making second application in the circumstances.

Evidence - Browne v Dunn - No sufficient challenge to evidence eventually not accepted

EVIDENCE - admissibility of documents - scope and effect of s 1305 of the Corporations Act - whether such documents as budgets are inadmissible under the hearsay rule - requirement of authentication of documents tendered in evidence - scope and effect of business records exception to hearsay rule - effect of business records exception where document contains representations of expert opinion - scope of "unfair prejudice" under ss 135 and 136

EQUITY [338]- Remedies- Interlocutory injunction- Foreign defendant submitting to jurisdiction- Mandatory order sought for continuing supply of goods pending trial- In circumstances order made.

LANDLORD AND TENANT - Construction of lease - Identification of leased area - Purported termination following s 129 notice - Alleged breaches discussed and ruled on - No question of principle.

Claims under Building and Construction Industry Security of Payment Act 1999 (NSW) - Date of service of Payment Claim - Suggested constructive resubmission of Payment Claim - Adjudication held not to have erred - Obiter consideration of whether Determination failed to satisfy one of the essential conditions laid down by the Act

CONVEYANCING - vendor's order for specific performance - procedures for enforcement - whether mandatory to give a defendant who has failed to comply with an order for specific performance further time before enforcement proceedings are initiated - powers of court to extend time for compliance with an order for specific performance - PROCEDURE - "four day orders" - status in NSW procedure - EVIDENCE - burden of proof - of lack of utility of making an order for specific performance

Extension of time under s 60G of the Limitation Act 1969 - HMAS Melbourne - Voyager collison - Issue of prejudice

CRIMINAL LAW AND PROCEDURE - SENTENCE - "DISCOUNT" FOR PLEA OF GUILTY AT EARLIEST OPPORTUNITY - WHETHER STATED INTENTION TO ALLOW SUBSTANTIAL DISCOUNT ACHIEVED - NO SPECIAL POINT OF PRINCIPLE

ADMINISTRATIVE LAW - INDUSTRIAL LAW - Jurisdiction of Industrial Relations Commission - Unfair contracts - Orders for payment of money - Whether available against parties other than contracting parties - Whether proceedings against parties other than contracting parties should be prohibited.

CORPORATIONS - winding up - application for removal of liquidator - application for adjournment - costs of proceedings when liquidator tenders resignation - principles for appointing replacement liquidator

CRIMINAL PRACTICE & PROCEDURE - Plea of guilty to murder - contested issues of fact - no premeditation - HIV virus - in protection - limited life expectancy.

CONTRACT - Construction - Termination of lease - Whether development application falls within term of lease permitting termination if council approval is not obtained - Held that lessor consented - Cross-claim for repayment of "incentive rent" - Unambiguous terms in direct conflict - Held that earlier clause prevails.

CRIMINAL LAW: Application for redetermination of life sentence - murder, associated with sexual assault - victim a nine year old girl - life sentence with lengthy determinate sentences for sexual offences - applicant twenty-one years old at relevant time, and of limited intellect - later admission of sexual fantasy relating to victim - significant progress in sex offender programs while in prison.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - claims for adjustment of interests under Property (Relationships) Act 1984 - defendant denies existence of relationship but abandons that denial at trial - offer of compromise made by defendant part way through preparations of case, for an amount more than plaintiff ultimately receives at trial - amount plaintiff receives at trial less than jurisdictional limit of Local Court

CIVIL PROCEDURE - Delay in prosecution of proceedings - Action commenced within, but towards end of, limitation period (imposed by s 588FF(3)(a) Corporations Act 2001 (Cth)) - Service not effected within time limit provided by court rules - Action taken to be dismissed by operation of case management rule contained in court rules - Application to extend time limit for service and time on expiry of which action taken to be dismissed - Correct approach to exercise of discretion to allow renewal of writ after period allowed for service has expired where, if allowed, renewal would have effect of depriving party of benefit of an expired limitation period - Whether approach is same where action taken to be dismissed after expiry of limitation period - Whether public policy considerations behind relevant limitation provision relevant to discretion to extend time limits in question - Whether delay in commencement of action until just before end of limitation period relevant to discretion to extend time limits in question - Whether claimants should have sought extension of limitation period (under s 588FF(3)(b)) rather than instituting proceedings within, but towards the end of, limitation period - Whether it was the claimants or their solicitor who was primarily to blame for delay in prosecution of action

COMPANY - directors - liability for unremitted group tax - CONSTITUTIONAL LAW - inconsistency of State and Federal laws - pre-judgment interest - general interest charge - INCOME TAX - group tax - company failing to remit group tax instalments - liability of company director - INTEREST - pre-judgment interest under State law recoverable from director liable for unremitted group tax - D

NEGLIGENCE - breach - whether reasonably foreseeable that a person exiting a lift would trip over a crate placed immediately in front of door - obligation on entrants to take reasonable care for own safety - EVIDENCE - inferences - whether evidence supported a reasonable and definite inference that someone for whose conduct the occupier was vicariously liable placed the crate in position - COSTS - whether a Bullock or Sanderson order appropriate (D)

NEGLIGENCE - whether breach of duty of care - whether unreasonable force used in helping with a wheelbarrow causing appellant to fall - no question of principle. ND

Succession. Family Provision. Claim by adult grandson. Whether Plaintiff is an eligible person. Whether Plaintiff was dependent upon Deceased. Relationship between Plaintiff and Deceased. Factors warranting the making of the application. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life. Deed of family arrangement between Defendants. Competing claims of Defendants. Distribution of estate to Defendants beneficially.

[STATUTORY CONSTRUCTION] - The role of the plaintiff as the representative body controlling thoroughbred horse racing in New South Wales - Whether the Thoroughbred Racing Act 1996 (NSW) and / or the Totalizator Act 1997 (NSW) gave to the plaintiff power to issue directions to the defendants prohibiting them from entering into contracts for the broadcasting of horse races from their racecourses without the plaintiff's written consent - [CONTRACTS] - The nature and extent of the plaintiff's obligations under a series of contracts which provide for the distribution of revenue from wagering to the racing industry - Whether those contracts entitled the plaintiff to issue the directions - [ADMINISTRATIVE LAW] - The nature of the plaintiff's obligations under the Acts - Apprehension of Bias

CRIMINAL LAW AND PROCEDURE - SENTENCE - FAILURE TO IMPLEMENT FINDING AS TO ALLOWANCE FOR PLEA OF GUILTY - CONCESSION THAT THIS SHOULD BE CORRECTED BY ADJUSTMENT OF TERMS - OTHER GROUNDS UNSUSTAINED - NO PARTICULAR POINT OF PRINCIPLE

CRIMINAL LAW AND PROCEDURE - SENTENCE - ADJUSTMENT TO COMMENCEMENT DATES TO COORDINATE WITH VARIATION TO SENTENCES DEALT WITH SEPARATELY - NO SPECIAL POINT OF PRINCIPLE

CRIMINAL LAW - Application for leave to appeal against severity of sentence - attempt sexual intercourse with child under 10 - Veen considerations.

INDUSTRIAL LAW - unfair contracts - performance of work in an industry - D

CONTRACT - construction of Licence Agreement - what obligations cl 7 imposed on the licensor - whether cl 7 was a condition or a warranty - whether cl 7 was breached - no question of principle

TRADE AND COMMERCE - Trade practices - misleading or deceptive conduct - where "Profit Potential Representation" held in appeal proceedings to constitute misleading or deceptive conduct - causation - whether plaintiffs suffered loss by that representation - whether plaintiffs suffered loss by directly relying on representation - whether plaintiffs suffered loss by indirectly relying on representation - whether open to plaintiffs on pleadings to submit that loss suffered by indirectly relying on the representation - whether inference that plaintiffs relied on representation available on evidence - DAMAGES - Trade practices - Trade Practices Act - where conduct taken to be misleading or deceptive by operation of s51A - whether deeming provision inoperative when considering whether conduct caused loss or damage for purposes of ss 82 and 87 - DAMAGES - Trade practices - whether correct method for assessment of damage involves consideration of value of benefits to plaintiffs at trial - whether benefits acquired by plaintiffs had value at trial - TRADE AND COMMERCE - Trade practices - causation - where plaintiffs liable for certain balloon payments - whether that liability caused by misleading or deceptive conduct or by plaintiffs' failure to exercise options to avoid liability - whether misleading or deceptive conduct materially contributed to loss or damage - whether plaintiffs' conduct constituted fresh and independent cause of loss or damage

CORPORATIONS - winding up - sole director and shareholder abandons company - winding up on just and equitable ground appropriate - dispensing with advertising appropriate

CORPORATIONS - liquidation and voluntary administration - administration under Deed of Company Arrangement - fund is established under Deed but not distributed before company goes into liquidation - whether fund is held solely for Deed creditors, or for all creditors including post-deed creditors - recovery after liquidation supervenes pursuant to security given to administrators to secure obligations of company under deed - whether distributable solely to deed creditors - recovery by liquidator of unfair preference - whether distributable to deed creditors - CORPORATIONS - liquidation and voluntary administration - application for judicial advice and declarations - when appropriate to make declarations - PRACTICE - declaratory judgments and orders - whether appropriate to make declaration about manner of distribution of funds held by administrators/liquidators of corporation

Possession of land - 3rd party mortgagors - equitable duty to act in good faith - statutory obligation under Real Property Act - unconscionable conduct.

CRIMINAL LAW – sentence – murder – intention to inflict grievous bodily harm – offender aged 18 years killed taxi driver with knife in confrontation over payment of fare – Crown appealed against sentence 12 years, non-parole 8 years – appeal allowed and sentenced to 15 years, non-parole 11 years. - CRIMINAL LAW – appeal- division of opinion in CCA – Bryson JA (most severe sentence) supported Studdert J (intermediate opinion) in order to achieve decision.