Cases and authorities

Succession. Family Provision. Claim by adult Daughter. Plaintiff is only eligible person. Ademption of gift by will of house property to Plaintiff. Financial and material circumstances of Plaintiff. Physical and medical problems of Plaintiff's husband. Plaintiff is essentially her husband's full-time carer. Whether needs of Plaintiff encompass those of her husband. Whether Plaintiff has been left without adequate provision for her proper maintenance. Competing claims of other beneficiaries.

SUCCESSION - FAMILY PROVISION - claim by adult son - deceased left estate to plaintiff's siblings - no close relationship - no substantial contributions to welfare - plaintiff engaged in litigation resulting in substantial liability for costs - ability to control distribution of funds in discretionary trust.

BUILDING AND CONSTRUCTION - progress payment - adjudicator's determination - basic and essential requirements of a valid determination - whether determination void because adjudicated amount included amounts assumed (but not decided) not to be "for" construction work - whether determination in breach of the Building and Construction Industry Security of Payment Act 1999 is unlawful - whether payment claim served on or from reference date

Judgment on Liability

PRACTICE AND PROCEDURE - costs - costs of interlocutory application - where relief favoured the applicant although the claimed relief was not awarded - where parties eventually consented to existing interlocutory regime - whether actions of parties were reasonable - whether costs ought to be awarded to the applicant - whether costs ought to be costs in the proceedings or costs of the application - no question of principle

Corporations - Company under administration - notices of proposed creditors' meeting advertised for date after that required by section 439A - application for extension of time to hold meeting - application granted - orders under sections 447A and 1322(4) - failure to hold meeting in 439A time period is an irregularity of a technical or formal nature

CRIMINAL LAW - sentencing - supply of a prohibited drug - heroin - co-offenders - whether sentencing judge failed properly to apply principles of parity between co-offenders - whether sentencing judge erred by finding that the notional sentence to be imposed on a co-offender before a discount was allowed on account of a plea of guilty was the appropriate sentence to be imposed - co-offender sentenced for unrelated offences, had a criminal history, drug addiction - whereas applicants had no criminal history, no addiction

ADMINISTRATIVE LAW - professional misconduct - unsatisfactory professional conduct- question of law - legal error - leave to review the merits - Administrative Decisions Tribunal Act 1997 s113(2)(b). (D)

WILLS - whether informal document should be admitted to probate - LEGISLATION - Wills Probate and Administration Act 1898 s18A

EVIDENCE - Client Legal Privilege - Implied waiver - Whether cross claim based on continued reliance on induced expectation inconsistent with maintenance of confidentiality

SENTENCE - asserted inadequacy of a number of non-custodial sentences in relation to objective seriousness of the offences

Criminal law - power of arrest - whether arrest lawful - whether evidence unlawfully obtained. Criminal law - power of detention and search - whether search lawful - whether evidence unlawfully obtained.

CRIMINAL LAW - s112(1) Crimes Act 1900 - admission of guilt - should additional discount be allowed if early admission of guilt completes Crown case.

CRIMINAL LAW - s249B(1)(a) Crimes Act 1900 - corruptly receive benefit - taking into account past criminal conduct with which offender has not been charged - relevance of good character in breach of trust offence - effect of delay in sentencing - balancing mitigating discounts with objective seriousness of offence.

Referral under Section 474E of the Crimes Act

APVO hearing - procedural fairness - power to restrict unnecessary or inappropriate questioning - failure of opportunity to lead relevant evidence in Local Court - District Court's duty to consider issues in appeal to it. ND

NEGLIGENCE - Vicarious liability - Employer/employee relationship - Test for determining whether a person is an employee - Factors regarded as relevant to the issue - Independent contractor - Whether a principal is vicariously liable for the actions of an independent contractor - NEGLIGENCE - Vicarious liability - representative - principal is not vicariously liable for the actions of a person who is neither an independent contractor nor an agent but is a representative of that principal. D

Superannuation - claims for benefit - total and permanent disablement - insurance - challenge to opinion of insurer on TPD where insurer's opinion was element in whether insurance was available to trustee - insurer did not form such opinion - whether failure to form such opinion was unreasonable - whether insurer's decisions to refuse the claims were invalid

Property Relationships - Contributions by the parties - Whether an adjusting order is just and equitable having regard to the parties' respective contributions and expectations of continuing relationship.

CONVEYANCING - Land Titles under the Torrens System - Transfers - Transfer and certificate of title handed to purchaser - Purchaser goes into occupation - Registration of transfer not sought for 43 years - Vendors and successors in title dead - Whether transfer can be registered - Whether purchaser guilty of unconscionable conduct - Whether purchaser guilty of laches - Whether relief barred by Limitation Act 1969

Family Provision. Application by two daughters in respect of a modest grazing estate left to the deceased's sons. Further provision granted.

SUCCESSION - wills probate and administration - testamentary capacity - testator with history of alcohol abuse also taking prescription drugs and suffering from depression - whether executors granted probate in common form discharged onus to show that testator had sufficient mental capacity

Criminal Law - Judge Alone trial - mother accused of murder of 4 year old son - plea not guilty by reason of mental illness - accused no longer in custody - whether should return to custody - order for conditional release after verdict.

CRIMINAL LAW AND PROCEDURE - INDICTMENT - PLEA OF GUILTY TO STATUTORY ALTERNATIVE - AMBIGUITY OF ENDORSEMENT ON BACK OF INDICTMENT AS TO WHICH OF TWO AVAILABLE ALTERNATIVES PLEADED BY OFFENDER - ON SENTENCE APPEAL LESS SERIOUS ALTERNATIVE ASSUMED FOR PURPOSE OF DETERMINING IF SENTENCE EXCESSIVE - PARITY OF SENTENCE WITH JUVENILE CO-OFFENDER - CHILDREN'S COURT IMPOSITION NOT IRRELEVANT - LESSER SENTENCE THAN THAT IMPOSED NOT WARRANTED

Sentencing - entering a buidling with intent to commit an indictable offence - possession of an unauthorised firearm - supply cannabis - accumulation of sentences produces non-parole which is disproportionate to the head sentence

CRIMINAL LAW AND PROCEDURE - SENTENCE - DETENTION OF VICTIM IN VIRTUAL ENSLAVEMENT - CONDUCT EXTENDING OVER THREE YEARS - OFFENDER PREVIOUSLY DEALT WITH LENIENTLY FOR SIMILAR CONDUCT - STATISTICALLY HIGHEST SENTENCE - NO ERROR IN ASSESSMENT BY JUDGE AT FIRST INSTANCE

CRIMINAL LAW AND PROCEDURE - SENTENCE - DRUG TRAFFICKING - CONSTRUCTING SUPPLY - FORM 1 OFFENCES INCLUDING OFFENCE CARRYING PRESCRIBED MAXIMUM OF LIFE IPRISONMENT - LARGE CRIMINAL NETWORK - PARITY - NO ERROR IN ASSESSMENT BY SENTENCING JUDGE

CORPORATIONS LAW - Creditor's statutory demand - basis for setting aside under s459J(1)(b) of the Corporations Act - no offsetting claim or genuine dispute but claim by third party associated with debtor against creditor issuing statutory demand - relevance that statutory demand to recover costs following cost order which represented discrete stage of ongoing litigation - basis for upsetting trial judge's discretionary determination to set aside statutory demand - relevance of statutory demand being now stale.

REASONS - duty of trial judge to provide sufficient reasons

CONTRACTS - sale and purchase of land - mortgages - default on repayments by mortgagors - whether mortgagors were in a position of special disadvantage with respect to the lenders - unequal bargaining power - whether mortgage transaction unconscionable

TRUSTS – Constructive trusts – accessary liability – to company of person dealing with directors of company – financier lent $520,000 to companies (which were trustees of college) on “caveat loan” short term at extremely high interest on unregistered mortgage with caveat over school lands – companies resisted repayment and claimed that lender incurred accessary liability for dishonest assistance to directors – companies arrested that many irregularities in steps leading to loan and informed direction of payment to another company also controlled by directors showed involvement of lender in knowledge of facts “…which themselves would to a reasonable man, tell of fraud or breach of trust…” (Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 at 412by Stephen J) – trial judge after review of facts found no accessary liability – held – findings confirmed, appeal dismissed.

Oral contract to deliver to plaintiff timber of different qualities taken from demolition of wharves - payment to plaintiff of dump fee - expectation of parties that the timber delivered would contain some timber of commercial benefit to plaintiff warranting lesser dump fee - defendant by own mistake selected timber for delivery to plaintiff which was of more commercial value to plaintiff than intended by defendant - whether timber delivered was nevertheless delivered within the terms of contract - claims in detinue and unjust enrichment dismissed - no error.

Application for stays of "judgments" and costs orders - various proceedings - current application for leave to appeal in principal proceedings - a number of applications filed seeking special leave to appeal to High Court - leave to appeal relevantly refused at earlier time - no prospect of appeal - or of special leaves to appeal - application in large part misconceived and wholly without substance - dismissed with indemnity costs. ND

PRACTICE - costs - application for indemnity costs - offer of compromise made at a time when both parties mistakenly believed amount in issue was $225,000 - amount in issue later found to be $250,000 - whether the offer involved a real compromise to be judged by reference to parties' mistaken common belief

GIFTS [8]- Imperfect gift- Cheque- Not cashed before donor's death- Paid by bank day after death- Gift effective. GIFTS [9]- Imperfect gift- One of two donees appointed executor- Gift conditional on equitable obligation to third party- Whether rule in Strong v Bird applies. PRIVATE INTERNATIONAL LAW [12]- Domicile- Domicile of choice- 15 days residence sufficient in circumstances to change domicile. SUCCESSION [290]- Jurisdiction- Testator domiciled in Queensland with Queensland realty and personalty in NSW- Only latter property able to be subject of order.

Two alternative charges dismissed - defendant convicted on eight charges of illegal fishing - fined - prosecutor to receive moiety - defendant to pay costs - summary prosecution - illegal fishing - proceedings in absence of defendant - meaning of "fish" - bag limits - shucking - obstructing officers.

Family provision - Entire estate to widow - Relationship of 15 years - Deceased ill throughout relationship - Nature and level of care provided by defendant - Quality of relationship between deceased and plaintiffs - Whether property should be declared notional estate - Extent of provision for plaintiffs

Appeal - application to go behind plea of guilty - refused - Sentencing - Crown appeal against sentence imposed for aggravated dangerous driving occasioning grievous bodily harm - sentence manifestly inadequate - Crown appeal allowed and the respondent resentenced - Consideration of statistics in relation to an offence under s 52A(3) of the Crimes Act.

CRIMINAL LAW: s95(1) Crimes Act 1900 - assault maliciously inflict actual bodily harm with intent to rob - objective seriousness of offence - balancing aggravating and mitigating factors.

CRIMINAL LAW: - Appeal against conviction - Charges of obtaining money or a financial advantage by deception - Alleged defrauding of employer - Admissibility of evidence of appellant's acknowledgment of debt to employer - Adequacy of directions about that evidence

PRACTICE AND PROCEDURE - Service of council rates - Service by posting - Time at which service is effected - Whether s 710 Local Government Act 1993 provides for both the modes and time of service - Whether s 76(1) Interpretation Act 1987 applies to determine time of service - CONSTRUCTION AND INTERPRETATION - "Contrary intention" - Interpretation Act 1987 s 5(2)

COSTS - Appeal succeeds on ground that plaintiff failed to make out elements of case - Deficiency not articulated by defendant below - Plaintiff ordered to pay costs of trial and appeal.

PROCEDURE - Supreme Court procedure - compliance with court directions - whether non-compliance should be the subject of a complaint of professional misconduct against the solicitor involved - PROFESSIONS AND TRADES - Lawyers - compliance with court directions - whether non-compliance should be the subject of a complaint of professional misconduct against the solicitor involved

SEARCH WARRANTS - Crimes Act 1914 (Cth) Pt 1AA - whether access to seized things by consultant of investigating agency is prohibited by s 3F(5) - whether electronic things copied under s 3L(2)(c) are things "seized" for purposes of s 3F(5) - whether things seized under search warrant may be used in an investigation with civil and criminal elements, and in a subsequent civil proceeding - whether owner of seized things may consent to their use and retention for purposes of civil proceedings

MORTGAGE - High interest short term loan - default - registration of mortgage - claim for possession - whether exception to indefeasibility - alleged forged mortgage - authority - whether defendants entitled to relief under the principles relating to unconscionability in Amadio - whether defendants entitled to relief under the Contracts Review Act - Fair Trading Act

Strike out - Summary dismissal - Specific performance - Trust - Estoppel - Unconscionable conduct - Conversion - Detinue - Bailment - Arguable case - Real questions to be determined - Whether pleading oppressive and embarrassing - Elements of claim - Whether made out - Winding up - Standing to bring proceedings