Cases and authorities

Criminal law - appeal - sentence - effect of complex of sentences - relevant offence in breach of bonds activating suspended sentences - no double punishment effect - no error.

COMPANIES - winding up - uncommercial transaction before winding up - Corporations Act s 588 FB

APPEAL - from Compensation Court - no error of law - no question of principle

Defamation - publication of defamatory material to clients of plaintiff real estate agency - judicial duty to disclose reasoning - where defendant denied responsibility for publication - whether sufficient evidence to base an inference that defendant published defamatory material. (ND)

CONTRACT - Superintendent's obligation under AS2124 - 1992 to issue a payment certificate is subject to a condition precedent that contractor support payment claims with evidence and information - Requirement of contractor to provide evidence and information constitutes a condition precedent on either of two bases: a non-promissory condition or an obligation imposed on the contractor, which conditions the superintendent's obligation to issue payment certificate - Requirement of contractor to provide evidence and information is comparable to purchaser's obligation to service notice to complete - Meaning of term "monthly".

TAXES AND DUTIES - Stamp Duty - Transaction resulting in change in beneficial ownership of land in NSW - No instrument chargeable with ad valorem duty - Dutiable statement to be lodged unless exemption applicable - Exemption if change in beneficial ownership as the consequence of issue of units in a unit trust scheme - No need for identity between issue of units and transaction resulting in change - Sufficient if issue of units a step in the transaction and change a consequence of the issue

PROCEDURE - costs - whether interlocutory costs order to be payable prior to conclusion of proceedings - set off of interlocutory costs orders against each other - set off of interlocutory costs orders against judgment amount - power of court to order interest on interlocutory costs orders - Supreme Court Rules, Part 52A rule 9

Contextual imputations - capacity

Application to extend operation of caveat under s 74K of the Real Property Act 1900 (NSW) - Debtor signed caveat - Caveat lodged after debtor exchanged contracts for sale to other parties - Purchasers aware of caveat at time of settlement.

Appeal against conviction and application for leave to appeal against sentence - identification directions - summing-up lacked balance - trial judge's obligation to sum up the case - issues of parity and totality

APPEAL - Summary dismissal - Whether leave to appeal should be granted.

NEGLIGENCE - police - duty to rescuer - no question of principle

Motor Vehicle Accident - trial judge's findings of fact - whether reversible by Court of Appeal - credit.

discovery in personal injury matters - Supreme Court Rules Part 23 - review of decision

CORPORATIONS - WINDING-UP - PROOF OF DEBT - CONTRACT - Application for review of liquidators' decision to reject Proof of Debt - claims founded in contract - promise by distributor to sell to Dealer at "fair and competitive" prices - Dealer purchases stock shortly before distributor placed in administration - Administrators sell distributor's stock at 'fire sale' discounts - Dealer suffers loss in selling stock purchased prior to administration. HELD: No evidence that Dealer purchased at prices which were not "fair and competitive" as at the time of sale having regard to market conditions at that time - no breach of contract by distributor - Proof of Debt rightly rejected. CONTRACT - CONSTRUCTION - Standard form Dealership Agreement provided that Agreement would commence when executed counterpart returned to Dealer by distributor - copy executed by Dealer but counterpart not returned by distributor to Dealer - distributor placed in administration - whether binding contract existed despite non-fulfilment of precondition. HELD: No contract in existence.

Criminal law - Criminal trial - Pre-trial disclosure - Complex criminal trial - Procedure - Complex medical evidence - Criteria for complex criminal trial - Words and phrases: "and" - "or" - "having regard to" - "includes" - "is to" - Compound verb "is to" has mandatory effect - Ambush - Discretion - Moulding order - Case by case approach

Substitute defendant: mistake in name of party

Issue Estoppel - defence pleaded in District Court proceedings - those proceedings decided adversely to the plaintiff - plaintiff brings fresh proceedings raising same issue in this Court

Gaming Machines Act 2001 - Liquor Act 1982. Gaming Legislation freeze on poker machines in hotels and clubs. Power to impose conditions on dormant licences. Legislative intention of freeze regulation - prohibition on stockpiling gaming machines

CRIMINAL LAW - EVIDENCE - Accused charged with murder of four children - Plea of not guilty - Defence application for separate trials - Coincidence evidence

PRACTICE AND PROCEDURE - District Court Rules, Pt 1 r 7A - Application to set aside a Preliminary Dismissal Order - Court must balance the prejudice between parties so as to do justice between parties - Regard to be had to actual prejudice suffered by claimant if application dismissed, and the actual prejudice that would be suffered by the opponent if application upheld - Gross carelessness of solicitor for claimant can be taken into account, but is not determinative in whether to set aside order - Expiration of limitation period was actual prejudice to opponent - Reinstatement of claim was not relevant prejudice to opponent - Absence of insurance cover was not relevant prejudice to opponent - Overall delay could not be said to prejudice opponent in the absence of evidence - Whether Preliminary Dismissal Order can be set aside only on court's own motion - Whether Preliminary Dismissal Order was so set aside. ND

Strike out statement of claim - injuries - defect - Motor Accident Compensation Act

CRIMINAL LAW: Admissibility of evidence of admission - no tape recording - s 108, Criminal Procedure Act - whether accused a suspect at the time - test to be applied.

EQUITY [100]- Presumption of advancement- Mother purchases property in joint names of daughter and son-in-law- Whether presumption applies.

EMPLOYMENT LAW [21] - The contract of service and rights, duties and liabilities as between employer and employee - Discharge and breach - Generally - Implied duty of mutual trust and confidence in employment contract - Whether gives rise to fiduciary duty - EQUITY [36] - General principles - Fiduciary obligations - Particular cases - Company - Articles of association - Right given to permanent employees to apply for and be allotted shares - Whether company, director or other shareholders owed any fiduciary duty in relation to that right to a permanent employee who did not have shares - EVIDENCE [24] - Admissibility and relevancy - Facts relevant to facts in issue - In general - Course of business - Whether what was said on a particular occasion may be proved by evidence of practice - TORTS [22], [ 238] - Negligence - Essentials of action for negligence - Duty of care - Relationship of proximity - Company - Articles of association - Right given to permanent employees to apply for and be allotted shares - Whether company owed any duty of care in relation to that right to a permanent employee who did not have shares - Conspiring to injure - Particular cases - Whether conspiracy among shareholders made out.

EVIDENCE - use of affidavit sworn in earlier proceedings by person now dead - whether rules concerning use of affidavits apply - status as previous representations of person not available - whether "Elias principle" operates to exclude

Misfeasance - liability of highway authorities for non-feasance - failure to plead non-feasance at trial.

Sale of goods- conditions and warranties - contract for supply of forked castings for steel work - supply of defective castings - whether reliance by plaintiff on defendant's skill or judgment - Sale of Goods Act 1923 (NSW) s19(1). Whether the Referree's report under Supreme Court Rules Part 72 should be accepted.

Joint Venture - Liability to third party - Joint venture agreement entered into between plaintiff and defendant - Proceedings brought against joint venture in Victoria by third party - Counterclaim brought by joint venture against third party - Defendant assigned its benefit in counterclaim to plaintiff - Proceedings in Victoria settled - Principles of contribution - Construction of Joint Venture Agreement - Whether defendant liable to contribute 50 per cent of settlement sum - Whether liability of joint venture caused by plaintiff - Whether settlement of counterclaim used to set-off joint venture liability

Sexual assault without consent (7 counts) - directions as to accused's state of mind adequate - appellant's attempt to change basis of his case on appeal - directions as to accused not giving evidence adequate - directions as to complainant's credibility sufficient - case fought on basis guilty of all offences or none - verdicts reasonanly supported by the evidence - while sentences (10 years with NPP of 7-1/2 years) were stern objective criminality was high - sentences not excessive.

Criminal law - appeal against conviction - application for extension of time - armed robbery - long delay before application - no merit in application - application refused.

WORKERS COMPENSATION - Common law claim - Liability - Whether decision that employer liable in negligence should be set aside - Damages - Whether decision that thresholds passed supportable on primary judge's findings.

[CAVEATS] - Clauses in Contracts for Sale of Land granting the caveators rights to charges on real property to secure indemnities "which the caveator becomes entitled to under this contract" - Proceedings commenced - Contracts terminated - Lapsing notice issued - Whether operation of caveat should be extended - Whether the defendants' claims "may have substance".

Succession - Family provision - Status of Plaintiff as an eligible person - Whether Plaintiff was de facto spouse of Deceased - Matters to be considered - Deceased spent several (but not all) nights each week at residence of Plaintiff - Financial and material circumstances of Plaintiff - Competing claim of beneficiary named in will.

CORPORATIONS - winding up - application by administrator to adjourn winding up summons of company in administration - whether adjournment to be granted either under compulsion of section 440A(2) Corporations Act 2001, or as a matter of Court's general discretion concerning adjournment - whether in interests of creditors for company to continue under administration rather than be wound up

CONVEYANCING - requisition on title - duty of vendor and vendor's solicitor - NEGLIGENCE - answer to requisition on title - whether duty of care - PLEADING - amendment to raise statute barred cause of action

CONVEYANCING - matters arising between contract and completion - contract conditional on vendors obtaining building certificate - whether vendors complied with requirement to take all reasonable steps - whether purported rescission by vendors valid - whether purchaser entitled to specific performance

Family Provision. Application by adult son. Legacy increased. No matter of principle.

Set aside statutory demand - genuine dispute - interpretation of agreement - entire or severable contract - substantial performance - implied terms - whether serious question to be tried - defects in demand - substantial compliance - foreign currency - failure to provide adequate information - demand expressed in a defunct currency

Extension of time to commence proceedings - ss 60C & E Limitation Act - Alleged medical negligence

Bill of Sale - mortgage over boat - registered under Registration of Interests in Goods Act 1986 - wrong prime identifier - boat otherwise identifiable - whether registration void

CONTRACTS - conditions - grant subject to condition that consent "on terms and conditions satisfactory to the Lessee" be obtained from council - determining what is "satisfactory to the Lessee" - EQUITY - rectification of instruments - ascertaining common intention - where single transaction effected by two leases

CORPORATIONS - winding up - voidable transactions - extension of period in which liquidator may seek extended period to challenge such transactions - whether such extension may be made after 3 years from relation-back day - extension of period to challenge voidable transactions - relevant considerations examined - whether money paid under "voidable" transaction recoverable as money had and received

REAL PROPERTY - ROADS - dedication of laneway in City of Sydney by leaving open and use - City Council claimed title to laneway off King Street between Kent and Clarence Streets - deemed dedication under Alignment of Sydney Streets Act 1834 s.3 and vesting under Sydney Corporation Act 1879 - s.67 - Old System land - claim not contentious - consideration of dedication of roads under Common Law assisted by 19th Century legislation - examination of evidence from 19th Century plans and records led to finding that lane was open to public, used and deemed dedicated before 1879 and hence title vested in City Council.

PROCEDURE - re-opening after judgment - obvious error of law asserted - CORPORATIONS - whether court's inherent jurisdiction extends to making of order for dissolution or winding up of body corporate created by statute

NEGLIGENCE - pedestrian accident - whether driver and employer liable for injuries sustained by pedestrian in motor vehicle accident - whether evidential basis to support a finding of negligence against the driver - NEGLIGENCE - assessment of contributory negligence - whether apportionment at first instance should be set aside because of manifest error

Equity - application for leave to appeal - appeal - concurrent proceedings - whether exemplary damages can be awarded for breach of fiduciary duty - punitive damages - compensatory damages - contumelious disregard for plaintiff's rights - breach of employment contract - initiation of secret business enterprise - conscious wrongdoings - exemplary damages in tort - status of exemplary damages at common law and in legislation - deterrence - rate of interest on defaulting fiduciary - equitable remedies - equitable wrongs - allowances - breach of confidence - financial loss - breach of contract - unjust enrichment - account of profits - equitable rules - criminal sanctions in equity - double punishment - fusion of common law and equity - fusion fallacy - employer's duties - penal - punitive - punishment - prophylactic - restitution - legal regulation of commerce - law reform commissions - international perspectives on exemplary damages and fiduciary relationships - The appellants were employees of the respondent company. At the beginning of their employment they signed employment contracts that contained terms preventing them from competing with the company while they remained employed. During their employment, the appellants secretly established their own business and secured contracts with prospective clients of the respondent. The respondent sued the appellants for breach of contracts of employment, breach of fiduciary duty and breach of duty under the Corporations Act 2001 (Cth). In addition to the usual remedies, the respondent also sought exemplary damages. The respondent was successful, receiving an account of profits from both appellants for breach of contracts and fiduciary duty, equitable compensation from one of the appellants for breach of duty and misuse of confidential information, and exemplary damages for breach of fiduciary duty. The appellants sought leave to appeal against the orders for exemplary damages. - Held by Spigelman CJ and Heydon JA (Mason P dissenting), granting leave and allowing the appeal: - There is no power in equity to award exemplary damages for breach of fiduciary duties by an employee.

Equity - appeal - strata plan - body corporate - dividing wall - water penetration - responsibility for rectification - common property - Strata Titles Board - finding of fact - whether trial judge can decide a question that did not appear in the stated case - no evidence - Coulton v Holcombe - notice of contention - case stated technique