Cases and authorities

Criminal law - sentencing - manslaughter - robbery in company - larceny of a motor vehicle - bag snatch - no special circumstances

CORPORATIONS - managed investment schemes - appointment of first responsible entity - subsequent appointment of new responsible entity - effect of appointment on ownership of scheme property - CORPORATIONS - corporate finance - registration of charges - extension of time for lodgment of particulars - rectification of Australian Register of Company Charges - delays and error by solicitors - EQUITY - trusts and trustees - application for relief by responsible entity of managed investment scheme - reasonable reliance on solicitors

CRIMINAL LAW - SENTENCING - whether accused suffering from a disease of the mind - whether defence of mental illness established - accused not guilty on grounds of mental illness

Criminal law - sentence - appeal - armed robbery - effect of serious mental illness - record of prior offences - progress to rehabilitation in gaol - no error in trial judge's approach.

Criminal law - Appeal by Crown under s5F Criminal Appeal Act - order for separate trials - evidence of statements by one accused prejudicial to another accused - whether evidence admissible.

JUDGMENTS AND ORDERS - Reasons for - On finding of fact - Primary judge says unable to make findings on certain matters - Whether appealable error. ND.

Defective work by building company licensed under Building Services Corporation Act - claim against director of building company - struck out as unmaintanable

NEGLIGENCE - motor accident - children - onus of proof. ND

DEFAMATION - Pleading - Contextual imputation - Requirements - Specificity - Whether injury from plaintiff's imputations to be weighed against injury from the contextual imputations or from the matters by reason of which such imputations are substantially true. D.

Extension of time to commence proceedings - Ss 60G and 60I Limitation Act - Voyager/Melbourne collision

CORPORATIONS - application to set aside statutory demand - whether genuine offsetting claim pursuant to s.459H - debt owed to partnership of three persons - claim for unliquidated damages sought to be offset - allegedly offsetting claim in respect of actions of one of present partners when employee for which all then partners allegedly responsible, including remaining present partners

Building case- Sent out to referee- 12 day hearing- Builder mainly successful but proprietors' cross-claim partly successful- District Court judge upholds report and orders proprietors to pay all the costs- No error of principle- Costs order within discretion- Appeal dismissed. (ND)

APPEAL - extension of time for - whether should be refused because appeal bound to fail - on facts extension of time refused - leave to appeal as to costs - no manifest error - leave refused.

TORT - NEGLIGENCE - medical receptionist - prioritisation of patients - whether a duty of care owed - whether breach of duty - whether all relevant information communicated - exercise of judgment - EVIDENCE - credibility - subject to findings of Master below - ND

ENVIRONMENTAL LAW - development consent - delegated authority - impact upon heritage values of adjoining property - whether consent vitiated - whether delegation of authority exceeded - well-founded objections - D

MORTGAGES - Real Property Act land - extent of interest of mortgagee - when mortgage has forged signature of mortgagor, and is registered - depends on construction of the particular mortgage

Criminal Law - Sexual assault - Evidence - Complaint evidence - 'Credibility rule' - Whether trial judge erred in allowing and not striking out evidence of complainant regarding reason for delay in complaint - Whether trial judge erred in failing to exclude complainant's evidence regarding belief that appellant having affair with his sister-in-law - Evidence Act 1995, ss 55, 102, 108, 135 - Criminal Law - Sexual assault - Significance of factual error in Crown prosecutor's cross-examination of appellant - Whether factual error misleading - Whether caused miscarriage of justice - Criminal Law - Sexual assault - Multiple counts - Mixture of acquittals and convictions - Whether guilty verdicts unreasonable and not supported by evidence - Credibility of complainant - Whether necessity for direction that doubts about credibility re one or more counts must affect assessment of credibility generally - ND

Criminal law: Sentence - aggravated robbery and demand money with menaces - whether sentences excessive

Contract - Consultancy agreement - variation of agreement - proper construction of ambiguous clause - whether comma broke clause into two discrete parts - whether termination premature - whether under agreement appellant entitled to terminate with 3 months' notice notwithstanding during initial period of Agreement - primary judge's conclusions correct - Cross-claim regarding whether bonus represented payment for improper purpose -open to shareholders at relevant time to assent to bonus. (ND)

PROCEDURE - solicitor's duties to the court - Rule 19 of Practice Rules - attesting witness to will in a contested probate suit also consultant to firm acting for party propounding the will - whether court should grant injunction restraining that firm from acting

CORPORATIONS - general meeting - person holding shares in own right and as executor is only one member - corporate shareholder purportedly represented at meeting - no evidence of appointment of proxy or corporate representative - both natural persons in attendance may have constituted entire mind and will of corporate shareholder - adjournment to initiate curative application under s.1322

Practice and procedure - Discretion to adjourn proceedings - Principles - Adjournment of final hearing for a period leading to substantial case management difficulties - Final hearing already having continued for 18 months - Failure to comply with orders to provide security for costs - Application for dismissal of proceedings following automatic stay of proceedings operative when security for costs not provided - Case management - Circumstances in which a party may be shut out from litigating an arguable case - Administration of justice requiring that a much less affluent litigant seeking to enforce alleged rights against a much wealthier party should be afforded a reasonable opportunity to secure funds to enable the continued enforcement of those claimed rights - Application to vary or stay or vacate interlocutory orders of a substantive nature made after a contested hearing requires applicant to show a material change of circumstances

Implicit refusal to grant adjournment (to explore agreement as to quantum and to make further submissions at a later date) - sufficiency of disclosure of reasoning process - no error of law.

Mortgagee sale - whether mortgagee lacking good faith or in breach of duty to exercise reasonable care - s420A Corporations Law - sale initiated by invitation to tender - sale effected prior to closing date for tenders - guarantor precluded from submitting tender offer above sale price - whether mortgagee precluded from selling to non tenderer prior to closure of tender process - whether conduct of mortgagee in terms of invitation to tender misleading.

Mortgage, Guarantee, Director's misconduct

Payment by mistake - Right to recover - Claim by payer - Unjust enrichment - Restitution - Money had and received - Contractual duty - Negligence - Contributory negligence

CORPORATIONS - application by shareholder for interlocutory injunctions to restrain issue of shares and dismissal of managing director - alleged oppression - circumstances in which breach of directors' duties may be oppressive - duty to see share capital issued in financially responsible and economical way - breach of any contract with managing director sounds in damages - balance of convenience significantly affected by company's insolvency and willingness of defendant shareholder (but not plaintiff shareholder) to provide needed equity - interlocutory injunctions refused

Criminal law - sentencing - detention for advantage - Criminal law - sentencing - sexual intercourse without consent in circumstances of aggravation

Crown Appeal - Findings of facts by sentencing Judge - Victim Impact Statement - Whether sentence manifestly inadequate

Stay of proceedings on indictment - whether stay order justified

APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT - OBLIGATIONS OF THE COURT IN CONDUCTING TRIALS - CHARACTERISATION OF EVIDENCE OF LIES - COSTS

Practice and Procedure - competency of appeal - equity - orders made against defendants - claim of breach of trust - whether order for account was intended to represent the final disposal of the plaintiff's claim - Part 48 Rule 2 Supreme Court Rules - standing of plaintiff to seek account - costs.

Contract - unjust at time of entry - unfairness - unconscionability - Duty of care - breach - Default - whether default fee was a penalty - foreseeability - Contracts Review Act 1980 ss 7(1), 9(2)

Criminal Law - determination of limiting term following limited finding of offences at a special hearnig, the offender having been found unfit to be tried

TORTS [237]- Conspiracy- Elements- Conspiracy to injure bankrupt estate not actionable- Overt act may be positive or negative.

Interest on costs - statutory construction - plaintiffs pay legal costs of their own legal advisers out of judgment moneys after the orders for costs were made - assessment process yet to be completed.

PROPERTY - Lease - Option to exercise - Notice - Was option validly exercised in accordance with its terms - Section 170 of Conveyancing Act 1900 with respect to service of notice - Section 76-7 of the Interpretation Act (NSW) 1987 - posting notice to a company - Construction of lease.

PRACTICE AND PROCEDURE - sufficiency of statement of claim - application for summary judgment and application to strike out statement of claim - Supreme Court Rules Pt 13 r 5 and Pt 15 rr 7 and 26. EXCISE PROSECUTION for recovery of "fine" - offences against Excise Act 1901 - whether civil proceedings maintainable - Pt XI Excise Act. AIDING AND ABETTING - offences alleged against the Excise Act - prosecution in civil proceedings - whether s 5 of the Commonwealth Crimes Act applies.

REAL PROPERTY - easements - application under s88K of Conveyancing Act - plaintiff sought 6 metre easement for light and air over defendant's property in order to satisfy council's development requirements - whether easement "reasonably necessary" for use and enjoyment of plaintiff's land - whether owner of servient land could be adequately compensated - whether court has discretion in respect of s88K - whether court should exercise discretion

Criminal law - sentence - plea of guilty - accessory after the fact to murder - co-operation and undertaking to give evidence against co-accused - evidence assessed as valuable - extensive period of prior custody - bail refused on more serious charge now withdrawn - appropriate form of sentence.

PROCEDURE - COSTS - Specific sum ordered to be paid in criminal matter in Local Court - no further assessment of those costs and disbursements possible in Supreme Court under Legal Profession Act 1987 - PROFFESSIONS AND TRADES - Lawyers - Solicitors lien on property obtained through solicitor's efforts - quantification of amount for which lien exists - MORTGAGES - Charges and liens - solicitors - lien for costs and disbursements on property recovered through solicitor's efforts - quantification of amount for which lien exists - EQUITY - Equitable charges and liens - solicitor's lien - for costs and disbursements recovered through solicitor's efforts - quantification of amount for which lien exists

Appeal against determination that the applicant was incapacitated for police duties due to the infirmity of major depression and that this was not "duty related".

Workers' compensation- Queensland legislation- WorkCover entitled to statutory indemnity from tortfeasor- Act declares that to that end WorkCover subrogated- Whether WorkCover must sue in worker's name- District Court Judge held it must do so- Reversed. (D)