Cases and authorities

CORPORATIONS [147]- Registered office- Non receipt or accidental non recording of notice of change- Effect. EVIDENCE [182]- Presumptions- Receipt of letters.

CORPORATIONS - provisional liquidator - company's sole activity is trusteeship of trading trust - whether provisional liquidator entitled to remuneration out of trust assets - whether court may give direction to provisional liquidator

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Need to fund litigation - Whether funds available to party from other sources.

Crown appeal - whether sentences were manifestly inadequate - pleas of guilty - maliciously inflict grievous bodily harm - malicious damage to property - subjective features - suspension of sentences - consideration of aggravating features - evidence of rehabilitation

FAMILY LAW [138]- Adoption- Name of Adoptee- Non-citizen child- What is his given name- Whether name may be changed- Adoption Act 2000, s 101(5). WORDS & PHRASES-"Given Name".

Criminal law - appeal - whether decision appealed from a judgment or order.

Appeal from Small Claims Division - magistrate refuses application to set aside default judgment - not a denial of natural justice - the scope of such ground of appeal and the object of the Division.

CRIMINAL LAW - Sentence - manslaughter - alternative verdict after trial - spontaneous killing of partner in domestic dispute

TRADE AND COMMERCE - restraint of trade - sale of business - defendants sold business to plaintiffs subject to clause that they (excepting the third defendant) would not engage in similar business within 10 kilometres within three years - where third defendant set up rival business - whether lease guarantee/financial gifts constituted breach of contract - meaning of "involvement" in business

CORPORATIONS - voluntary administration - fees of administrator accruing during lengthy adjournment of second meeting of creditors - terms on which order to be made under section 447A Corporations Act 2001 (Cth) permitting committee of creditors to approve payment of fees

Equity - equity of exoneration - jointly owned land mortgaged to secure loans for the benefit of one owner - bankruptcy of principal borrower - sale of land - whether proceeds of sale in hands of trustee in bankruptcy charged to secure right of exoneration - whether right abandoned

PROCEDURE [105] - Supreme Court procedure - Procedure under Supreme Court Rules - Directions - Whether directions for preparation should be given now or deferred until after judicial advice given re propriety of use of trust funds in defence of proceedings.

PROCEDURE - Appeal - Stay of judgment - Judgment under Building & Construction Industry Security of Payment Act - Need for more than real risk of prejudice

NEGLIGENCE - Workers' Compensation - Motor accidents - Plaintiff injured when manoevring ramps on car-carrying trailer supplied by defendant - Plaintiff working as employee of his own company pursuant to a contract between that company and the defendant - Whether defendant owed duty of care analogous to that of an employer, or only as supplier of trailer - Whether duty breached - Whether defendant entitled to contribution - Whether motor accidents insurer liable.

CONTRACTS - Building and construction - Frustration of contract - Builder suffers brain injury which causes him to be in a coma for 5 weeks and unable to undertake or supervise work for about 5 months - Whether contract frustrated - Whether error of law by CTTT - Whether home building insurance applies - Inadequacy in provisions of Home Building Act.

Sentence - Manslaughter - Plea - Parity

Sentence - Murder - Husband kills wife.

MORTGAGE - DISCHARGE - CANCELLATION - Mortgage granted forty years ago - mortgagor and both mortgagees dead - letters of administration of estates of mortgagees never granted - no one interested in obtaining grant - evidence warrants conclusion that mortgage was discharged in full or mortgage debt became statute-barred - whether Court has power under s.98(1) Conveyancing Act 1919 to determine that mortgage is discharged - whether remedy available under s.32(6) Real Property Act 1900.

EQUITY - rectification - rectification of Real Property Act 1900 transfer which has been registered - appropriate form of order - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - transfers - transfer mistakenly identifying land intended to be transferred - transfer registered - rectification of transfer - appropriate form of order to achieve rectification

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - order that caveat be withdrawn - applicable principles

CRIMINAL LAW - Sentence - Crown Appeal - Robbery whilst armed - Offence committed when on parole - Offender charged and sentenced while serving sentence of imprisonment for other offences - Sentence concurrent with pre-existing sentence - Sentence backdated - Sentence already expired when imposed - Sentencing judge imposed sentence as though he was sentencing at same time as earlier offences - Manifest inadequacy - Inappropriate, due to nature and serious of offence, to sentence as though sentence were being imposed at same time as earlier sentences - Totality

Land and Environment Court - questions of law for the determination of the Court of Criminal Appeal - whether questions stated were questions of law or of fact - whether questions stated were sufficiently specific - whether questions of law are required to be of general application - defence of authority of licence - defence of honest and reasonable mistake of fact - whether question (c) was a question of law arising at or in reference to the proceedings

FALSE ARREST - false imprisonment - Mr Zaravinos attended Police Station by appointment for interview and was arrested successively by 2 police on different but related charges, interviewed, charged, fingerprinted, photographed, bailed and released - detained about 3 hours - after several adjournments, prosecutions discontinued - power of arrest in Crimes Act 2900 s.352(2) - DC Judge found no reasonable grounds for arrest "The case has all the hallmarks of heavy-handed and officious use of arbitrary power" and awarded $25,000 damages and $5083 interest - both sides applied for leave to appeal - consideration of purpose for which power of arrest without warrant may lawfully be exercised - English authorities distinguished - lawfulness of continued detention for interview - injunction requiring destruction of fingerprint records and photographs refused - held that the damages assessed included aggravated and exemplary damages, and should not be set aside as excessive or inadequate - leave to appeal refused except as to District Court power to grant injunction and as to lawfulness of arrest - appeals dismissed.

APPEAL - from Consumer Trader and Tenancy Tribunal - CTTTAct s.67 - question with respect to a matter of law - appeal to Common Law Division - purported further appeal to Court of Appeal - numerous supposed grunds of appeal were not questions with respect to a matter of law within s.67 - acceptance by builder of repudiation was not enforcement of building contact within Home Building Act s.10 - consideration of circumstances in which an issue is a question with respect to a matter of law and references in case law - express advertence to the matter of law is not necessarily required - appeal struck out as incompetent.

NEGLIGENCE - highway - pedestrian injured by fall at hole in broken edge of asphalt paving on footpath - consideration of significance of observability of hazard - consideration whether duty of care owed if the hazard can be observed by pedestrian - extensive consideration of Brodie at [163] - Trial Judge's findings of negligence and no contributory negligence were reasonably available - appeal dismissed

Documents obtained under subpoena - copies held - reports prepared - implied undertakings not to use information in documents otherwise than for the purpose of the proceedings - notices given under s246 of the Income Tax Assessment Act requiring production of the copy documents and reports - claim to declaration that undertakings not overridden by s246 notices - alternatively that undertakings be released so as to permit compliance with notices - inappropriate and unnecessary to decide which of the undertakings and s246 prevails - undertakings released so as to permit compliance with notices. D

CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence in relation to workplace injury - whether apportionment appropriate - DAMAGES - damages for non-economic loss - comparison with a most extreme case - damages for past economic loss - effect on assessment of damages for past economic loss of finding that plaintiff took all reasonable steps to mitigate damages - damages for future economic loss - determination of weekly rate appropriate to reflect residual earning capacity

Appeal from Small Claims Division - magistrate rejects tender of statement (not filed and exchanged in accordance with directions) and refuses adjournment application - not a denial of natural justice - the scope of such ground of appeal and the object of the Division.

CONTRACTS - determining terms of oral contracts - credibility of witnesses - whether adverse inference should be drawn from unavailability of one plaintiff for cross-examination

EQUITY - undue influence - Mufti advises defendant in plaintiffs' presence of religious duty to honour oral promise to sell land to plaintiffs - defendant signs memorandum of agreement - signature witnessed by Mufti - whether "third party" undue influence - whether plaintiffs knowingly concerned - CONTRACTS - Statute of Frauds - alleged oral agreement for sale of land where formal exchange of contracts contemplated - alleged acts of part performance

Franchise agreement - whether inducement to enter agreement by false and misleading representations - whether breaches of s 52 Trade Practices Act 1974 (Cth) - construction of agreement - Frustration - whether agreement terminated by frustration - whether agreement repudiated by franchisee or validly terminated for breach by franchisor - Damages - loss of opportunity for royalty and marketing fee - costs

CORPORATIONS - winding up - application for order setting aside statutory demand - whether genuine offsetting claim - interaction between statutory demand procedure and legislative progress payments procedures - whether order setting aside statutory demand should be subject to condition

Appeal decision of Local Court Magistrate - s 42AA Property Stock & Business Agents Act 1941 (NSW)

LANDLORD AND TENANT - Termination of the Tenancy - Lease registered under Real Property Act 1900 - Notice of surrender signed by one director of corporate tenant the day before its winding up for irreconcilable differences between directors - Whether it and notice of termination issued by landlord on same day together constituted a surrender under the Real Property Act 1900, s 54(1) - Whether there was a surrender by operation of law - Whether other director's actions constituted ratification by company - Whether landlord entitled to terminate for breach of "essential" term to open restaurant during business hours - Whether landlord bound to give 14 days' notice of breach of lease - Whether company repudiated the lease

PROCEDURE - costs - no determination on merits - principal dispute resolved by consent orders - whether discontinuance of ancillary claims gave rise to "event" for costs purposes - whether strength of plaintiff's case shown suifficiently to warrant costs order despite compromise

COSTS - cost orders against the Commonwealth - DPP obtained restraining order in respect of appellant's interests in property - appellant serving life sentence following conviction under s233B Customs Act 1901 (Cth) - court below made orders pursuant to ss48(3)(g) and 48(4) Proceeds of Crime Act 1987 (Cth) - whether recovery of costs under s101 Proceeds of Crime Act 1987 (Cth) excludes the Supreme Court's wider power to order costs against a party including the Commonwealth in applications within the ambit of s101 - scope of that ambit - whether s101 constitutes an exclusive cost recovery code against the Commonwealth for applications to exempt property from forfeiture or restraint under the Act - whether applications under the Act of that character are limited to applications described in s101(1)(a) - whether court's discretion to order costs against the Commonwealth is wholly dependent on applicant satisfying s101 and all its conditions

CONTRACT - Meaning of "fair market value" - Share valuation - Use that may be made of evidence of an offer in a valuation exercise - Whether special potentiality or special value to one purchaser may be taken into account - Whether minority discount should apply - Whether minority shares have a 'greenmail' value - INDUSTRIAL LAW - Unfair contract - Jurisdiction under s106 - Relationship between s106 and oppression - Remuneration of managing director linked to share agreement - Disparity between expected financial benefit and benefit actually received

TORTS - Negligence - Duty of care - To road users - Breach of duty - Approaches in determining negligence - Whether different approaches entail different outcomes - Inadvertence - No marked centreline on road - Plaintiff's car partly on incorrect side of road - TORTS - Contributory negligence - Breach of duty - Whether mutually exclusive

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether letter in law sufficient to be payment schedule - s 14(2)(b), (3) - whether "nothing" an amount for purposes of s 14(2)(b) - whether letter "provided" within meaning of s 14(1)

CRIMINAL LAW - Conviction appeal - sexual intercourse without consent - whether the trial judge erred by failing to discharge the jury when it was put by defence counsel that prejudicial media publicity had been published during the course of the trial - whether trial judge failed to adequately direct the jury as to the inconsistencies in the evidence of the complainant and the Crown witnesses - whether the trial judge erred in his directions on hearsay evidence - whether the trial judge erred in failing to give warnings relating to identification evidence - whether verdicts of guilty constituted a miscarriage of justice

CRIMINAL LAW: Sentencing - Crown appeal against leniency of sentence - whether sentence manifestly inadequate - objective gravity of offences - member of drug supplying syndicate - whether prospects of successful rehabilitation given too much weight.

Criminal Law - Applicant relied upon fresh evidence to show that he was sentenced on erroneous factual basis - evidence rejected as no miscarriage of justice - no error in the imposition of sentence.

CRIMINAL LAW: - conviction appeal - use an offensive weapon in company with intent to prevent lawful apprehension - whether available on evidence - inconsistent verdicts - sentence appeal - whether parity principle observed.