Cases and authorities

EQUITY [31] - General principles - Equitable charges and liens - Generally - Whether lien created by words incorporated in order of Court was a possessory lien or an equitable charge - Whether Court had power to enforce by order for sale.

CRIMINAL LAW - murder - trial by judge alone - question of identity of offender

Family Provision. Application by children in respect of an estate which passed to the RSPCA. Orders for legacies to the plaintiffs.

Motion to vacate appeal judgment and orders - no oral hearing on earlier Motion - ND

LEGAL PRACTITIONERS - Disciplinary proceedings - whether error of law made by tribunal - where finding of professional misconduct and order that barrister's name be removed from the roll - whether reasonable apprehension of bias on part of member of tribunal - whether amendment of information outlining complaint deprived tribunal of jurisdiction - where information required acceptance by Legal Services Commissioner - Legal Profession Act 1987, ss138(2), 167A.

PROCEDURE - Notice of Motion - fresh evidence - whether requirements in Greater Wollongong CC v Cowan met - CONTRACT - undertakings - construction - whether ambiguity in meaning of undertakings - intention of parties - CONTRACT - whether there was a legally binding agreement - whether a proposal - discretion of trial judge - EVIDENCE - discretion of trial judge - whether oral or documentary evidence preferable - credibility - EQUITY - estoppel - whether estopped from denying the existence of a binding agreement - TRUSTS - discretion of trustee - whether purporting to exercise discretion - whether intended to pay entitlements on basis of correct accounts - trustee acting in good faith - D

Contract - Breach - Construction of term - psychic telephone services - contract between Service Bureau and Call Processing Centre to direct all calls through call processing centre - whether duty absolute or duty to use best endeavours - whether failure to secure third parties' business for call processing centre amounted to breach of term - Assessment of Damages. (ND)

Criminal Law - application for an order in the nature of certiorari against disimissal by the Local Court of an application under s32 of the Mental Health (Criminal Procedure) Act 1990 - discretion to refuse prerogative relief in relation to part heard proceedings

CORPORATIONS [319]- Examination- Persons allegedly having knowledge of corporation's property- Liquidator under creditors' voluntary liquidation- Whether an eligible applicant. WORDS & PHRASES- "Eligible applicant"- "Liquidator".

CORPORATIONS [316]- Winding up- Examination orders- Duty of candour of liquidator when applying ex parte for orders- Result if liquidator declines to inform court on review of relevant facts.

Family Provision. Application by four children. One commences proceedings in time and the others are joined as plaintiffs out of time. Held that the joinder did not operate to extend time under the Act. Insufficient explanation for late application by one plaintiff. Orders made in favour of three plaintiffs.

CRIMINAL LAW - sentencing – manslaughter – shooting two people - neither substantial impairment or provocation negate all responsibility for offence – objective criminality considerable - need for both personal and general deterrence - offence out of character – special circumstances such as to require departure from ratio between head sentence and non-parole period

DAMAGES - Domestic assistance - Need due in part to matters unrelated to the compensable injury - Van Gervan principle. D.

Civil Practice and Procedure - Dismissal for want of prosecution - Whether exercise of discretion of District Court Judge to strike out proceedings miscarried - Circumstances when appellate court will allow appeal against interlocutory judgment on practice and procedure - Where three District Court orders to file updated particulars were breached by plaintiff who failed to file the particulars by the dates specified in the orders - District Court Rules 1973 (NSW), Part 18 rule 3(1) - D

Damages - Gratuitously provided benefit - Application of Griffiths v Kerkemeyer in cases of property damage - Subrogation

Estoppel - former adjudication - judgment inter partes - issue estoppel - identity of issues - findings of Compensation Court as to incapacity

VOLUNTARY ASSOCIATIONS - disciplinary proceedings - jurisdiction of court to intervene - nature of charges made by voluntary association - duplicitous charges - unfairness and ambiguity of charges. D

CORPORATIONS — Invalid appointment of liquidator — Remedial orders under s1322(4) and s447A of Corporations Act 2001 — No substantial injustice in denying an unforeseen windfall benefit — Cost orders allowed to compensate Second Defendant for costs in taking the point in defending proceedings by liquidator.

Practice and procedure - Application for security for costs - Documents sought by defendants for purposes of application for security for costs - Conditions to be imposed by Court by way of confidentiality undertakings in relation to use of documents sought - Whether form of undertaking should oblige defendants not to use confidential information other than for the purposes of the proceedings or rather for the purposes of the security for costs application.

Defamation - imputations

CONTRACTS - general contractual principles - formation of contract partly by documents and partly by conduct - INTERPRETATION - general rules of construction of instruments - provision concerning act of corporate party, its "associates or subsidiaries" - meaning of undefined terms "associates" and "subsidiaries" in particular context

CRIMINAL LAW - appeals - appeal against sentence – manslaughter – death of child victim caused by shaking - whether 10% discount for plea of guilty outside appropriate range – whether insufficient allowance for periods spent in protective and strict custody – whether failure to take into account pre-sentence custody – error in not taking into account pre-sentence custody – sentence backdated accordingly

Contract - collatoral contract - Trade Practices Act s75B - where Builder in breach of building agreement - whether directors of builder also liable - assessment of damages under Trade Practices Act s82 - appeal dismissed.

LAND VALUATION - compulsory acquisition - method of calculating compensation - special potential of land - need to establish scheme underlying resumption before calculating compensation

RESTITUTION - money paid under judgment - judgment set aside on appeal - new trial limited to damages - appellant entitled to repayment - entitled even though liability remained and only quantum in issue in the new trial. D

CORPORATIONS — Scheme of Arrangement — Exchange into CUFS in Dutch company — Takeover protection in Articles — Disclosure — Classes — Divergent interest — Help centres.

CORPORATIONS [182] - Voluntary administration - Protection of company property during administration - Winding up company - Power of Court to adjourn hearing of winding up application - Relevant considerations.

Corporations Law - statutory cause of action - duty of directors - Corporations Act - transitional provisions - external powers of the Commonwealth

Interlocutory Process - application to set aside orders - statutory demand - whether commercial embarrassment

Crown appeal against inadequacy of sentence

Appeal by leave - injury to baseball player - transcript discloses that duty of care conceded at trial - leave to appeal rescinded (ND)

Trusts - Resulting trust - Constructive trust - Acquisition of company title home unit by deceased father of Plainitff - Purchase was in name of deceased - Deposit was paid by deceased, but stated to be a gift to the Plaintiff - Mortgage payments, outgoings, improvements, repairs were paid by Plaintiff - Statements made by deceased at time of purchase and subsequently - Family provision - Claim by adult daughter - Financial and material circumstances - Need for accommodation - Competing claims of grandchildren named in will as conditional beneficiaries as to residue.

Appeal decision of Fair Trading Tribunal - whether s92 & s 94 of the Home Building Act 1989 take effect retrospectively

CONTRACTS - general contractual principles - construction and interpretation of contracts - alleged uncertainty - effect to be given to manifest commercial intention - MORTGAGES - alleged clog on equity of redemption - right to redeem on payment not compromised - EQUITY - undue influence - presumption of undue influence in solicitor-client relationship - limited relationship - no benefit to solicitor - parties immediately benefited not on notice that solicitor acting - tests to be applied in contemporary circumstances where client is company with commercially astute principals - EQUITY - undue influence - actual undue influence - based on representations found not to have been made - CONTRACTS - statutory remedies - Contracts Review Act relief not available to company - also not available to guaranteeing directors who regularly give such guarantees - CONVEYANCING - caveat against dealings - caveat based on option to purchase lots in unregistered strata plan - caveatable interest arose but ceased when option expired - no power for court to extend caveat to protect interest not claimed therein - no additional interest shown in any event - no right to maintain caveat - CONTRACTS - general contractual principles - no contract arose from incomplete negotiation - no estoppel

Sentencing - Crown appeal - alleged inadequacy of sentence - young offender - robbery in company - sentencing judge finds respondent half as culpable as co-offender - whether exceptional cricumstances within the meaning of Henry's Case.

No question of principle

EQUITY — Banking loans to an incorporated family business earlier carried on in partnership — Borrowers with limited English and technical understanding of financial and legal security matters — Special disability — Unconscionability — Application of Contracts Review Act — Distinction between recommends independent legal advice and inviting borrowers either to take away and read documents or get legal advice — Difficulty of understanding documents — Availability of house mortgages and personal guarantees to secure corporate debt — Construction of house mortgages with form S148 including all monies clause as a guarantee — Inadequate or misleading explanation given by Bank — Relevance to unconscionability — Estoppel — Illegitimate pressure amounting to economic duress in relation to subsequent acknowledgments and cross-deed of covenant — Independent legal advice does not avert that result where adviser not furnished with relevant information including security documents — Continued effect of duress negates effect of subsequent legal advice — Release, effect of and principles of construction — Relevance of fact that security sold by borrowers in these circumstances rather than the bank — Scope of equitable compensation where security sold taking into account gravity of conduct — Limitation issues — Scope for liability of bank in relation to advice or there endorsement of property purchase financed by bank — Negligent misrepresentation, breach of duty of care or breach of fiduciary duty alleged — No such liability in present circumstances — Relevance of reliance and its reasonableness — Issues of causation — Is there any fiduciary duty in particular circumstances — Limitation aspects. - WORDS AND PHRASES — meaning of "advice"

CORPORATIONS [182] - Voluntary administration - Protection of company property during administration - Winding up company - Power of Court to adjourn hearing of winding up application - Relevant considerations.

Company Law-Winding up-Liquidators-Exceptions to rule in Foss v Harbottle- -Contributories motion to bring a derivative cross action and to be permitted to seek leave to set aside a default judgment and to conduct a derivative defence-Whether action may be brought or continued or defended by a contributory in the name of company if this is in the interests of justice-Whether any such a rule applies to companies in liquidation-Considerations applicable to control by the court of company in liquidation-Contributory authorised to use companies name as co- defendant and as cross claimant.

PROCEDURE [574] - Costs - Departing from the general rule - Order for costs on indemnity basis - Factors relevant to exercise of court’s discretion - "Calderbank" letter - PROCEDURE [760] - Miscellaneous procedural matters - Cross claims - Set-off - Equitable set-off - When available - Rule in Cherry v Boultbee

Appeal decision of Fair Trading Tribunal - meaning of personal, domestic and purposes, substantial compliance with prescribed form.

Insolvent & voidable transactions - indemnity from directors - when does the cause of action arise - when can the Commissioner of Taxation commence proceedings - whether proceedings should be commenced by originating or interlocutory process

CORPORATIONS [206]- Winding up- Discretion- Statutory demand based on judgment debt- Appeal lodged- Appeal apparently arguable- No stay ever sought- No application to set aside demand- Winding up order made but stayed for short period.

Sentencing - robbing in company - intellectual disability - assistance - co-offender more blameworthy - assistance to authorities - parity.

Death of plaintiff - substitution of wife - claim for voluntary services - whether provided to person "in whose favour award is made" within s72(1) Motor Accidents Act 1988 - whether limits apply.