Cases and authorities

CORPORATIONS [134]- Proxies- Joint debt- Whether each creditor can nominate separate proxy. CORPORATIONS [238][259]- Creditors voluntary winding up- Appointment of chairman- How determined. CORPORATIONS [337]- Validation- Substantial injustice- Factors involved. MEETINGS [7]- Chairman- How appointed. WORDS & PHRASES- "Convene".

CORPORATIONS — Deed administrator becoming liquidator — Application for liquidator to be replaced in order for matters concerning the liquidator in earlier role as deed administrator may be investigated — Need for non-conflicted and impartial liquidator for that purpose — Duties of deed administrator — Liability for insolvent trading — Shadow director? — Deed administrator as deemed officer of company for purposes of duty of care and diligence — Deed administrator as fiduciary.

COMPANY LAW - financial adviser's and promoter's fiduciary duties - directors' duties - breach of duty - EQUITY - negative content of fiduciary duties - remedies for breach of fiduciary duties - where rescission not available - equitable compensation for causally connected but unforeseeable losses - PRINCIPAL & AGENT - secret commission - ingredients - element of inducement - knowledge by principal, where principal is a fledgling company controlled by promoters

CORPORATIONS [182]- Administration- Protection of property during administration- Secured creditor had commenced enforcement- Whether stay should be granted.

Family Provision - Status of Plaintiff as an eligible person - Domestic relationship - Whether Plaintiff was de facto spouse of the Deceased - Matters to be considered - Plaintiff resided in Australia whilst the Deceased essentially resided in Thailand - Plaintiff resident in house of Deceased in Sydney - Plaintiff never visited Deceased in Thailand - Application by Plaintiff for permanent residency grounded upon a de facto relationship with another person during part of the period whilst Plaintiff now asserts she was in a de facto relationship with the Deceased - Present assertion by Plaintiff that statements made by her to the Department of Immigration were deliberately false - Credit of Plaintiff - Statements by Deceased relevant to existence of a de facto relationship with Plaintiff - Whether Plaintiff was living in a close personal relationship with the Deceased - Whether Plaintiff is an eligible person within paragraph (d) of definition - Membership of same household - Concept of dependency - Factors warranting the making of the application - Competing claims of benficiaries - Plaintiff has remained in residence in Deceased's house since death of Deceased - Cross-claim by executor for possession of house property - Claim by executor for mesne profits

CORPORATIONS — Statutory demand — Genuine dispute.

Summary judgment - malicious prosecution - abuse of process

Murder - Method of indictment - Single indictment - Evidence of intention - Verdict unreasonable or unsupported by the evidence

CRIMINAL LAW - appeals - appeal against conviction - importation of heroin - whether plea made in circumstances which involved true admission of guilt - whether appellant pressured into plea - miscarriage of justice

Criminal Law - application for leave to appeal against severity of sentence - importation of prohibited substance - sentencing guidelines - principle of parity - application dismissed.

Criminal law - application for leave to appeal against sentence - whether non-parole period represents too high a proportion of head sentence - appeal dismissed.

Dangerous driving causing grievous bodily harm - Appeal against sentence - Hardship as ground of appeal - Extreme or exceptional hardship required - Onus of establishing hardship is on appellant

Robbery - Appeal against sentence - Elderly female pensioner - Targetting victim - Planning of robbery - Effect of drug addiction on sentence - Rehabilitation

Legal Practitioners - Professional Misconduct - Whether conduct justifies finding that practitioner is not of good fame and character - Whether conduct justifies finding that practitioner is not a fit and proper person to remain on roll of legal practitioners - Where conduct not in connection with legal practice - Where conduct occurred prior to admission - Where conduct arose out of events surrounding death of friend and subsequent prosecution and trial for murder - Where opponent was acquitted at trial for murder - Legal Profession Act 1987 (NSW), s 127(1)(b) D

Corporations Law. Applicatgion to set aside statutory demand under s 459G. No matter of principle.

Lease - termination for non-payment of rent - whether personal cheque constitutes payment - relief against forfeiture - relevance of tenant's conduct in other premises leased from landlord in same building - disentitling factors discussed - whether cleaning of premises is "use" of premises - relief against forfeiture granted

Family Provision - Widow's claim. Order for legacy made. No matter of principle

Commercial Arbitration Act - Leave to appeal from interim award - discretion - error of law not manifest on the face of the award.

Judgment - application to set aside for procurement by fraud - silence of legal representatives of plaintiff - erroneous statement from bench in reasons for judgment against defendant.

NEGLIGENCE - damages, quantum of - motor vehicle accident - plaintiff involved in a number of accidents - whether trial Judge correct in finding that much of the plaintiff’s suffering was due to a spinal degenerative disease rather than to the accidents - s79 Motor Accidents Act 1988 - whether trial Judge correct in finding that plaintiff failed to establish that their ability to lead a normal life was significantly impaired - held that the trial Judge’s findings were entirely open on the evidence.

NEGLIGENCE - personal injury - breach of duty - causation - remoteness - PRACTICE & PROCEDURE - motions for summary dismissal of appeals discouraged

NEGLIGENCE - damages - no question of principle

PERSONAL INJURY - Worker's compensation determination - PRACTICE & PROCEDURE - sole issue to be determined was whether respondent was a "worker" or "deemed worker" - appellant sought to raise further issues and call further evidence - parties had agreed in application and answer that there was only one issue for resolution - in argument in open court the appellant had abandoned the further grounds - this was a tacit admission of the respondent's allegations on the abandoned issues - the appellant had failed to seek leave to withdraw the admissions - the appellant was rightly precluded from raising the abandoned issues. ND

Stay of proceedings - agreement to refer disputes to Australian Commercial Disputes Centre "for dispute resolution" - whether void for uncertainty - discretionary grounds for refusing stay - Supreme Court Act, s110K - leave refused (ND)

PARTNERSHIP - dissolution and winding up - s44 Partnership Act 1891 - whether moneys lent in name of company appearing in books in that name were to be treated as a loan from a partner

Professional negligence - contributory negligence - Limitation Act - when cause of action accrued - interest on damages.

COURTS and JUDGES - cross-vesting - exclusive jurisdiction clause - consideration of interests of justice in circumstances of this case - proceedings transferred to SCV.

DEFAMATION - Capacity of publication to give rise to imputations - Whether imputations differ in substance

Application for forfeiture on the basis of serious crime related activity of restrained property - circumstantial case - no defence evidence.

Make and use false instrument - Appeal against sentence - Positions of trust abused - Confession before approached by police - Plea of guilty at earliest possible time - Gambling addiction - Re-sentencing - Constraints on Court of Criminal Appeal

Robbery in company and inflicting bodily harm - Appeal against sentence - Parity of sentences - Principle may be inappropriate where subjective factors differ - Effect of subjective factors - Relative degrees of culpability

Appeal from Master refusing application for summary judgment - Application for leave to Amend Defence - Application for Permanent Stay.

LANDLORD AND TENANT [19] - Duration of term - Holding over after expiry of term - Holding over from month to month - Terms of holding over - Applicability of lease - Proviso for re-entry on non payment of rent for 14 days - Whether applicable.

Professional liability - negligence in sale of tavern - breach of retainer - allegation of bias - appeal dismissed.

Workers Compensation - injury to left hand - where appeal based on a finding of fact - no appeal to this Court from finding of fact - appeal dismissed.

MENTAL HEALTH [4]- Managers- Security- How provided.

Plaintiffs sought order that Probate be granted in solemn form to them as executors - Defendant filed Caveat against making grant of Probate - Question of deceased's testamentary capacity.

ASSOCIATIONS AND CLUBS [13] - Expulsion, suspension and disqualification - Right of expulsion - Incorporated club - Articles of association must be strictly complied with.

EVIDENCE - Hearsay - Interlocutory proceedings - Whether unfairly prejudicial - PRIVILEGE - Legal professional - Illegal or improper purpose - Whether abuse of process 'fraud' within s.125 of Evidence Act 1995.

CRIMINAL LAW - offering to supply cocaine - Drug Misuse and Trafficking Act 1985 - no actual supply - no intent to supply - no ability to supply - CRIMINAL LAW - sentencing - discretion of trial judge - suspended sentence - exceptional and extraordinary case - ND

Robbery in company - Appeal against sentence - Assaults on male and female victims - Community expectations - Effect of youth on sentence - Rehabilitation prospects

LOCAL GOVERNMENT - ESTOPPEL - UNJUST ENRICHMENT - Council represents that compensation would be payable for land dedicated as public reserve - Condition of development consent requires specified land to be dedicated as public reserve, and also cash contribution under s.94 of the Environmental Planning & Assessment Act - Council subsequently refuses to pay compensation - Construction of consent - Whether developer entitled to relief on the basis of estoppel or unjust enrichment - Quantum of relief.

Appeal from Magistrate - Contract - Statutory express and implied warranties - "Good, substantial and workmanlike manner" - Damages for breach not precluded by warranty provision

Corporations Law. Application to set aside statutory demand. No matter of principle.

Sentence after verdicts of guilty of two counts of manslughter arising out of the same incident.

Criminal law - sentence - appeal - failure to have regard to period in custody bail refused - otherwise no matter of principle - sentences and non-parole period backdated.

CRIMINAL LAW - appeal - appeal against sentence - material taken into account which was not in evidence - sentence imposed manifestly excessive - subjective factors to be taken into account