Cases and authorities

PRACTICE & PROCEDURE - practice of Equity Division where witness will not swear affidavit - outline of evidence - whether, in civil penalty proceedings, evidence of witness for plaintiff who has not sworn an affidavit should be limited to the outline served by the plaintiff on the other parties

Application for summary judgment - misconceived defences - judgment entered.

INSURANCE - motion for separate questions for determination - where former directors of a company in liquidation claim indemnity for defence costs in proceedings brought against them by ASIC - principles relevant to exclusions clauses in insurance policies

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - application for variation of implied undertaking concerning use to which subpoenaed documents can be put - use for defending applicant against charge brought against it by ACCC - use for making complaint to ACCC - use for publication to the public generally

WILLS - payments by testatrix for benefit of one of her two sons - whether the payments were loans or gifts or family arrangements - whether loans subject to rule in Cherry v Boultbee - application of rule in respect of statute-barred debts and interest

CORPORATIONS - WINDING UP - application by liquidator to be excused, retrospectively, from holding annual meetings of shareholders and creditors - explanation needed for why meetings were not held

Contextual imputations - threshold issue of capacity of matter complained of to carry - mitigation of damages - post publication events

CRIMINAL LAW AND PROCEDURE - Trial by jury - impartiality - bias - written communication from foreperson indicating fear of bias and prejudgment by unspecified jury members - whether jury to be discharged - whether direction overcame prejudice - whether reasonable apprehension that jury had not discharged its task impartially

CRIMINAL LAW - appeal against severity of sentence - make false statement with intent to obtain financial advantage - plea of not guilty.

NEGLIGENCE - CAUSATION - balance of probabilities test is not satisfied by evidence that does no more than establish a possibility - effect of death of alleged tortfeasor on plaintiff's ability to recover damages where tort is subsequent to the death of tortfeasor - survival of action in negligence against the estate of the deceased under the Law Reform (Miscellaneous Provisions) Act 1944, s 2(4) - interaction of Law Reform (Miscellaneous Provisions) Act, s 2(4) with the Wills, Probate and Administration Act 1898, ss 92, 95 where estate fully administered - viability of claim against executor and beneficiaries of the estate - effect of s 95 of the Wills, Probate and Administration Act - whether possibility of an equitable right of action against beneficiaries of the estate arises - ND

Mareva orders - concluded litigation

PROCEDURE - transfer of proceedings under cross-vesting legislation - proceedings in Industrial Commission, and related proceedings in Federal Court - Supreme Court proceeding begun to join those proceedings together - appropriate form of order

CONTRACTS - General Contractual Principles - Construction of Interrelated Contracts - Estoppel - Best Endeavours - Implication of Term of Trade, Custom or Usage - Implied Term of Good Faith - No Separate Issue - EQUITY - Fiduciary Obligations - No Separate Issue - RESTITUTION - Mistake - Subjective Element of Enrichment irrelevant - Trustee Distribution to Beneficiaries - Whether Change of Position Defence - EVIDENCE - Limitations of Principle in Jones v Dunkel - PROCEDURE - Discovery - Legal Professional Privilege in NSW Governed by Evidence Act 1995 - No Waiver of Client Legal Privilege by Employee or Agent unless Authorised to do so - LIMITATION OF ACTIONS - Effect of Amendment after Expiration of Limitation Act 1969 Period - INTEREST - As of Right Entitlement and Discretion under Supreme Court Act 1970, s 94

Corporations - Statutory demand - Application to set aside - Service by post - Date of service of demand - Whether application has been made within prescribed period - Whether there is a genuine dispute as to existence of debt.

accessory after fact of murder - disposal of a murdered body - mitigating circumstances - plea of guilty - assistance to authorities - special circumstances - suspended sentence

CORPORATIONS - voluntary administration - administrator's claim for remuneration for pre-administration work - whether creditors can approve payment - whether acceptance of appointment contravened s 448C - whether, if so, appointment invalid - whether leave should be granted

SECURITIES - managed investment scheme - provision requiring Trustee to retire - whether satisfied - DEEDS - construction and interpretation - distinction between definitions and references to something - when a provision in a deed makes "a reference to … winding up"

CRIMINAL LAW: joint trial of two accused - application by one for separate trial - whether prejudice from nature of evidence against other accused and ability of other accused to raise character.

Criminal law - conviction appeal - s 20(2) Evidence Act - Comment made by trial judge - accused not giving evidence - application of proviso.

CRIMINAL LAW: Sentence - Crown appeal - sentences inadequate in their totality - creditable behaviour by respondent in prison since sentence relevant to re-sentence - discretion not to interfere.

Criminal law - appeal against interlocutory judgment or order - evidentiary ruling - submitted that evidence irrelevant because Crown case could not be made out in other respects - this submission not put to trial judge - no interlocutory judgment or order - appeal dismissed. ND

Illegally acquired property

PROCEDURE - courts and judges generally - apprehended bias - application that judge set aside judgment and orders because of failure to disclose matters alleged to ground reasonable apprehension of actual bias - application that judge disqualify himself from hearing particular future proceedings because judge's statements on fact and law in earlier proceedings alleged to ground reasonable apprehension of prejudgment

appeal against order for committal for trial - s104(3) Justices Act 1902 - charge of defrauding the Commonwealth - s29D Crimes Act 1914 (Cth) - charge of unauthorised disclosure - s70 Crimes Act - charge of corruption as a Commonwealth officer s73(2) Crimes Act - Part IVAA Taxation Administration Act Private Rulings - need to prove "imperilment" to interest of Commonwealth

Supreme Court Act 1970 - s76E - interim payment

Appeal against severity of sentences - various drug offences and conspiracy to commit armed robbery in company - sentences held to be manifestly excessive.

Cancellation of order for periodic detention - matter proceeded ex parte - error established - non-parole period set.

Criminal Practice and Procedure - Appeal - Fresh evidence admitted on applicant's mental state at time of sentence - extensive delay in hearing of appeal - sentence not served.

Personal injury - nervous shock - psychiatric injury - duty of care - reasonable foreseeability - special relationship - vulnerability - assumption of responsibility - control - public authority - prison complex (D)

DUST DISEASES TRIBUNAL - jurisdiction

Contract. Agreement to settle dispute - whether contract concluded. Held concluded contract. - Evidence. Letters forming a contract written after a mediation. Whether the letters are admissible notwithstanding s 15 of the Farm Debt Mediation Act.

Corporations Act 100G(2) - Financial Transaction Reports Act s 31(1) - re-sentencing after second trial

Proceudre - courts & judges - proceedings to prohibit proceedings in Administrative Decisions Tribunal - assignment of business - Court of Appeal or Administrative Law List

PARTNERSHIP - carrying on a business in common - decision whether a particular factual situation amounted to a partnership

Fair Trading Tribunal Act 1998 - denial of natural justice

Succession - Family Provision - Claims by adult son (aged 85) and by adult grandson - Financial and material circumstances of Plaintiffs - Liabilities of each Plaintiff include costs awarded in favour of Defendants in unsuccessful probate proceedings brought by Plaintiffs - Competing claims of other beneficiaries - Whether grandson is an eligible person - Alleged partial dependency upon Deceased - Whether there are factors which warrant the making of his application - Effect of unpaid costs owing to Defendants upon any proposed order for provision - Rule in Cherry v Boultbee.

CONTRACTS [1] - General contractual principles - Offer and acceptance - Contract implied from conduct of parties - Whether possibility of analysis in terms of offer and acceptance is necessary to existence of contract - EQUITY [39] - General principles - Equitable charges and liens - Money expended or benefit conferred on property of another - GUARANTEE AND INDEMNITY [1] - The contract of guarantee - What constitutes a guarantee - Generally - Necessity for defined principal obligation.

Appeal decision of Local Court Magistrate - interpretation of ss 50A & 52(4) MAA

CRIMINAL LAW: Appeal against conviction - detaining for advantage, sexual assault (3) - found guilty of detaining for advantage only - whether verdict of guilty unreasonable in light of acquittals on other counts - whether directions about complainant's credibility adequate.

CRIMINAL LAW: Appeal by Crown under s 15DA of the Criminal Appeal Act - application for leave to appeal against sentence by offender - extent to which offender failed to fulfil an undertaking to assist the authorities - adequacy of primary judge's discount for plea of guilty and offer of assistance.

NEGLIGENCE - breach of duty - causation - employer - employee

CONTRACTS - factual findings re terms of particular contract - findings re construction of particular contract - factual findings relevant to whether rectification of contract should be granted - no question of principle - CONTRACTS - discharge and breach - difference between termination of contract following repudiation, and rescission of contract in equity - CORPORATIONS - oppression - whether oppression arises from corporation A becoming registered as holder of cross-claimant's share and in consequence excluding cross-claimant from participation in affairs of corporation, when corporation B entitled to become registered as holder of cross-claimant's share and exclude cross-claimant from participation in affairs of corporation - MORTGAGES - mortgage over share by deposit of share certificate - rights of mortgagee to enforce security - rights of mortgagee to receive reports and notices of meeting, and to vote - CORPORATIONS - right to receive reports and notices, and to vote, when share subject to mortgage by deposit of share certificate and mortgagee becomes registered - CORPORATIONS - order for inspection of records - rectification of register

Sentence

CONVEYANCING - sham transactions - whether loan and mortgage transactions bona fide - whether loan and mortgage transactions liable to be set aside - CONVEYANCING - whether the loan and mortgage transactions and discharge of mortgage and sale transactions constitute an alienation of property within the meaning of s37A of the Conveyancing Act 1919 - whether there was an intent to defraud creditors - meaning of "creditors" in s37A - whether bona fide purchaser for value and without notice - ESTOPPEL - whether a defendant could be precluded from asserting an entitlement to repayment of loan and rely on a mortgage in light of what was said in court - EQUITABLE LIEN OR CHARGE - whether the plaintiff held an equitable lien or entitled to a charge in equity to secure payment for work done on a house, when subsequent judgment otherwise frustrated by sham transactions, to prevent consequences of unconscionable conduct - equitable lien as an alternative to a constructive trust as a remedy for unconscionable conduct - CONSPIRACY TO INJURE - whether the loan and mortgage transactions constituted a conspiracy against the plaintiff - whether plaintiff suffered any damage.