Cases and authorities

PROCEDURE - winding up application by one of two shareholders, directors and creditors of company - concurrent Property (Relationships) Act proceedings between the same persons - whether both should be tried together - FAMILY LAW - de facto relationships - need for all financial relationships between parties to be determined in Property (Relationships) Act proceedings

PROCEDURE [574]- Costs- Indemnity costs- Commercial litigation- Bad pleadings- Significance of English solicitors acting to great extent for successful party.

Section 17(2) notice of intent to apply for adjudication served out of time - Adjudication application made out of time - Section 15(2)(a) makes provision for alternatives of either proceeding to recover claimed amount as a debt in curial proceedings or of making adjudication application - Where claimant elects to seek adjudication determination and adjudication procedures miscarry, claimant cannot revert to seeking judgment in curial proceedings

CORPORATIONS - arrangements and reconstructions - scheme of arrangement coupled with reduction of capital - holders of cancelled shares entitled to cash or new shares designated redeemable preference shares - adequacy of information to be given to shareholders as to availability of cash and capacity of company to redeem new shares - CORPORATIONS - corporate finance - redeemable preference shares - concept of "preference share" - need for preference or priority over other shares - inability of company to redeem except out of profits or proceeds of new issue

PRACTICE AND PROCEDURE - application for leave further to amend summons - whether appropriate to grant leave to amend outside limitation period - whether general power of amendment in Pt 20 r 1 is limited by Pt 20 r 4 - whether leave should be refused because of insufficient particulars - whether leave should be refused because amendment would result in vacation of hearing date - whether leave should be refused because proposed amendments amount to "bargaining" with the Court - whether costs orders on indemnity basis sufficient to compensate defendants for costs thrown away by amendment - whether defendants prejudiced by amendments alleging actual breaches of the law - whether refusal of leave to amend likely to occasion any significant prejudice to plaintiffs

CRIMINAL LAW AND PROCEDURE - TRIAL - ACCUSED GIVES AND CALLS NO EVIDENCE - ESSENTIAL ISSUE OF KNOWLEDGE OF PRESENCE OF DRUGS IN DESPATCHED PACKAGE - DENIAL BY ACCUSED IN LENGTHY VIDEO INTERVIEW - FAVOURABLE DIRECTION TO ACCUSED THAT CONTENT OF VIDEO AVAILABLE TO JURY IN SAME WAY AS OTHER EVIDENCE - NO APPLICATION FOR DIRECTION OTHERWISE - NO MISCARRIAGE - RULE 4 APPLICABLE - VERDICT NOT UNREASONABLE

PROPERTY LAW - EQUITY - Liquor Administration Board - poker machine entitlements - hotelier's licence - lease of hotel premises - poker machine freeze - transfer of hotelier's licence - whether transfer of poker machine entitlements requires support of the lessor - whether the lessor has a financial interest in the hotelier's licence - s19 Gaming Machines Act 2001 - statutory interpretation - whether definition of "financial interest" in s19(5) is exhaustive - relationship between s19(5) and s19(3)(c) - Liquor Act 1982 - equitable/beneficial interests in poker machine entitlements on termination of the Lease - constructive trust - resulting trust - unconscionability - whether poker machine entitlements may become detached from a licence. (D)

COSTS - Appeal - Proportionality of costs - Two parties with substantially similar interests - Separate appeals brought - One appellant, an insurer with an interest in establishing a general point, briefed senior counsel - Respondent ordered to pay the appellant's costs, not extending to briefing senior counsel.

Workers' Compensation Act 1987, s9A - whether employment a substantial contributing factor to injury - pre-existing congenital weakness - conflict between evidence of medical experts - whether error of law in process whereby judge came to prefer one expert over the other - absence of reasons for conclusion. (ND)

CORPORATIONS - STATUTORY DEMAND - Application to set aside - whether genuine dispute as to existence of contract - whether Plaintiff precluded from raising existence of contract by operation of s.15(4) Building and Construction Industry Security of Payment Act 1999 (NSW) - whether facts demonstrated genuine dispute.

Dismiss Amended Statement of Claim

CORPORATIONS - WINDING UP - LEAVE TO PROCEED - leave to proceed against a company in liquidation should not be given where the claim as formulated is doomed to failure - the court should not adjourn the leave application while the Plaintiff determines whether to bring some other claim.

Criminal Law - Sentencing - murder - by prisoners of fellow prisoner - whether life sentence - common assault

Corporations Act - Leave to liquidator to enter compromise

Civil proceedings - defamation - application for permanent stay - defendant seriously ill and seeks stay for that reason - not an abuse for plaintiff to proceed - application dismissed.

Defamation - absolute privilege - scope and policy of defence - whether statement prepared for purpose of judicial proceedings - whether defence of 'spousal immunity' available - whether claims of conspiracy and abuse of process groundless - whether reasonable causes of action disclosed in pleadings - whether proceedings should be dismissed under Pt 13, r 5(1)(a) and (b)

SUCCESSION [289] - Executors and administrators - Other matters - Application for order that administrator execute a transfer of land to beneficiaries - Wills Probate and Administration Act 1898 s 84.

cross-vesting application - proceedings commenced in the Dust Diseases Tribunal of NSW - transfer to Supreme Court of SA - interests of justice - special procedures to facilitate hearing

CONFLICT OF LAWS - Anti-suit injunction - Proceedings in Florida by a Florida company against a company registered in NSW - Application for a permanent injunction to restrain foreign proceedings - Whether foreign proceedings are vexatious or oppressive - Comity - Whether local forum has a sufficient interest or connection with the matter in question to justify interference with foreign court - Whether NSW is a clearly inappropriate forum to determine if the defendant is in breach of contract - Florida the natural forum to determine the dispute as a whole - Injunction refused. - CONTRACT - Whether indemnity clause in distributorship agreement is a promise not to sue - Whether term should be implied that the defendant agreed not to sue - Held that indemnity clause inapplicable to third-party complaint.

EQUITY [172] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Indemnity, lien and reimbursement- In respect of legal costs and commission - Trustee defending proceedings for removal proposes to resort to trust assets for costs - Application to revise restraint of use of trust funds.

S 35(1) Crimes Act 1900, two step process in awarding periodic detention, reasons for not fixing non-parole period, appropriate start point for head sentence.

Sentencing - supplying prohibited drugs - whether impermissible use of prior criminal record as aggravating factor - appropriate sentence and non-parole period.

S112(1) Crimes Act 1900 - multiple offences - appropriate starting point for head sentence - relevance of maximum sentence - delay in sentencing - proper use of offences on Form 1.

Supply of prohibited drug - common mistake that standard non-parole regime applied - error and need to re-sentence - possible error in regard paid to offences on Form 1 - offender re-sentenced.

CIVIL PROCEDURE - representative proceedings - recovery of tobacco licence fees - abuse of process- champerty - trafficking in litigation - permanent stay of proceedings - expiry of limitation period - application of limitation period to represented parties - same interest - jurisdictional requirement - discretion to "otherwise order" - beneficial common relief - common issues of fact and law - discovery- opt-in procedure - closing the class - relevance to fact in issue - discovery in limine -Supreme Court Rules Pt 8 r13, Pt 23 - restitution - total failure of consideration - relevance of subjective intent of payer. (D)

CORPORATIONS [161] - Takeover offers - Other matters - Off-market takeover bids - Variation of.

PRACTICE AND PROCEDURE - injunction - application to restrain breach of alleged trust fund - trusts - express trusts - where moneys deposited by principal into contractor's bank account - where principal is a signatory to the bank account - where contractor in administration - where funds held by administrator - whether prima facie case that funds held on trust - whether principal entitled, on resulting trust, to funds in bank account if primary trust failed - whether intention to create express trust - whether principal entitled to relief on the entire amount held by administrator - whether allowance ought to be made for the legal costs of the administrator - no question of principle

Quantification of debts of plaintiff in liquidation and ancillary questions inappropriate for decision by Judge - Part 72 reference

CHARITIES [140] - Administration and control by Court - Parties - Attorney General - When necessary or proper party - Application for leave to maintain amended proceedings under Charitable Trust Act 1993 s 6 - PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Application to amend statement of claim after judgment on questions tried separately on basis partly in accord and partly not in accord with case conducted at trial.

Application for leave to proceed against insurer under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 - Claims of breaches of the Corporations Act against former directors of the plaintiff - Whether directors are a "party to" the insurance contract - Whether there is a viable defendant.

CONVEYANCING [60], [62], [63] - Relationship of vendor and purchaser - Matters arising between contract and conveyance - Time - Time of the essence - Generally - Notice to complete - General rule as to entitlement to give - Reasonableness of time - Notice less than 14 days - Efficacy of notice addressed to two of three purchasers but not to the third - EQUITY [70] - General principles - Mistake - Effect on contracts - Mistake as to nature or contents of document - Defence of non est factum - Elements of - ESTOPPEL [29], [42] - Estoppel by convention - Estoppel in pais - The representation - By conduct - Conveyancing cases - Issue of notice to complete - Recipients do not object to notice as defective - Whether estoppel by convention or estoppel by representation arises - TORTS [60] - Negligence - Essentials of action for negligence - Damage - Causation - Generally - Failure to give advice - Onus on plaintiff to establish what would have happened had appropriate advice been given - Necessity to prove causal connection between failure to advise and damage suffered - TRADE AND COMMERCE [84] - Trade practices and related matters - Consumer protection - Misleading, deceptive or unconscionable conduct - Character and attributes of conduct - Silence and concealment - Whether silence can constitute a misrepresentation - Whether duty of disclosure.

PRACTICE AND PROCEDURE - Discovery - Commissioner resisting an order for discovery - secrecy provisions - legislative prohibition against disclosure - Commissioner's freedom from compulsion to produce documents - whether resisting a liquidator's claim to avoid payments made to the Commissioner is carrying into effect a provision of a taxation law - whether an order for discovery amounts to production to the Court - whether discovery would necessarily divulge or communicate information disclosed or obtained under the provisions of the Income Tax Assessment Act 1936 (Cth) or under or for the purposes of the Taxation Administration Act 1953 (Cth) - Income Tax Assessment Act 1936 (Cth) s 16 - Taxation Administration Act 1953 (Cth) s 3C

CORPORATIONS [319]- Examination- Examination of officers of and experts retained by solicitors for company's insurer- Whether oppressive or abuse of process. EVIDENCE [72]- Privilege- Insurer's solicitors retain experts after disaster but before claim made- Whether reports privileged.

Defamation - all issues jury trial - qualified privilege at common law and under s 22 of the Defamation Act 1974 - verdict (whether nominal or of substance) - interest - costs - vale

Practice and Procedure - Costs - Grave allegations of bribery abandoned several days into hearing - Costs sanctions accordingly

EQUITY [172] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Indemnity, lien and reimbursement- In respect of legal costs and commission - Trustee defending proceedings for removal proposes to resort to trust assets for costs - Application to restrain use of trust funds.

CORPORATIONS - winding up - liquidator seeks advantage for one creditor - creditor funding problematic and complex litigation - advantageous settlement achieved - treatment of creditor according to commercial litigation funding practices

CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES OF ROBBERY WHILST ARMED WITH OFFENSIVE WEAPON - SETTING OF NON-PAROLE PERIOD - SPECIAL CIRCUMSTANCES - VERY SMALL EFFECT ON OVERALL SENTENCES - NO ERROR BY SENTENCING JUDGE - NO LESSER SENTENCE WARRANTED

CONVEYANCING - Easements - Extinguishment of easements - Right of way - Abandonment - Whether right of way had been abandoned - Whether abandonment should be inferred from non-user, alternative access and/or obstruction - Establishing abandonment where title is under Real Property Act 1900 and easement appears on title - Whether court should have regard to acts or omissions of predecessors in title - Obsolescence - Whether right of way should be deemed obsolete by reason of change in character of neighbourhood and/or change in user of dominant tenement - Conveyancing Act 1919 s 89(1)(a), (b)

Contract to redevelop shopping centre by changing strata titles to separate Torrens titles, utilising common property to enlarge supermarket - contract partly oral and partly implied - part performance - misleading conduct under s.52 Trade Practices Act - relief under s.87 - breadth of Court's powers

Companies - Deadlock

CORPORATIONS - membership - Articles of Association say member shall cease to be a member if he becomes bankrupt - sequestration order made against member - bankruptcy later annulled - whether member still a member - BANKRUPTCY - discharge of bankrupt and annulment of sequestration order - annulment pursuant to section 74 Bankruptcy Act - effect of annulment on bankrupt's membership of corporation which has Article saying a member ceases to be a member if he becomes bankrupt - JUDGMENTS AND ORDERS - setting aside - effect of setting aside considered generally - effect of setting aside sequestration order by statutory provision for annulment on operation of clause in corporation's Articles that member ceases to be a member if he becomes bankrupt

Succession. Family provision. Claims by four adult children. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for his or her proper maintenance.

Professional negligence - solicitors - Froggy.com - limited retainer - fiduciary duty - managed investment schemes

Sentencing - whether inadequate reduction for pleas of guilty because mental illness impeded earlier pleas - not shown mental illness did so - whether inadequate variation in statutory ratio following finding special circumstances - no necessary extent of variation - variation open to the judge - whether error in partial accumulation of sentences - no error shown. ND