Cases and authorities

CORPORATIONS - Construction of Company's Constitution and Regulations - Company limited by guarantee - Aims and Objects - Application for registration of a cloned horse - Management and administration of corporation - Power of court to rectify corporate acts which are taken in contravention of corporate constitution - Resolutions passed by Board without proper notice - Validity of purported resolutions - Whether procedural irregularity under s 1322 - Validating orders - Whether substantial injustice - Oppression of single member - s 232 of Corporations Act 2001 (Cth)

ADMINISTRATIVE LAW - judicial review - plaintiff a former police officer charged with an offence - matter dismissed - where plaintiff made application for ex-gratia payment in respect of a portion of legal costs incurred in successful defence of charge - where application declined - whether plaintiff denied procedural fairness in determination of application ADMINISTRATIVE LAW - allegation of bias - person against whom allegation made not the decision maker - necessity for connection between the alleged bias and the making of the decision PRACTICE AND PROCEDURE - application for judicial review - where proceedings commenced outside of prescribed limitation period - plaintiff unrepresented - all evidence documentary - no prejudice to the defendants - whether extension of time ought be granted

PROCEDURE - application by defendants to have hearing date vacated - relevant considerations - procedural fairness.

CLAIM under Compensation to Relatives Act 1897 - proceedings settled - apportionment of settlement sum between plaintiff and three children - evidence of actuaries - as to apportionment - HELD: settlement sum apportioned in accordance with proposal of the parties. PROCEDURE - action commenced on behalf of children - proceedings settled - court approval of settlement requires pursuant to s.76 Civil Procedure Act - HELD: settlement approved.

REAL PROPERTY - commercial lease - what equity sub-tenant should do to owner pending final hearing of application for relief against forfeiture of purported exercise of sub-option - whether sum paid by sub-tenant to tenant should be taken into account in calculation of rental arrears

SECURITIES - Personal Property Securities Act - application to register financing change statement to remove registration of second and third defendants - application to restrain second and third defendants from the registration of security interests

CRIMINAL LAW - special hearing - counts of murder and causing grievous bodily harm with intent - inadequate evidence to establish causation or intent

CONTRACTS - alleged serious misconduct - sending of doctored internal ANZ email to journalist - interpretation of termination clause - whether entitlement to terminate arises if ANZ holds opinion that plaintiff guilty of serious misconduct or only if underlying fact established - onus of proof - terms sought to be implied inconsistent with express terms - ANZ established entitlement to terminate because of its opinion that the plaintiff had sent the doctored email - ANZ further established underlying fact - excluded all other reasonable suspects DAMAGES - findings made for completeness - had summary dismissal not been available ANZ would have been entitled to terminate by paying four months' remuneration in lieu of notice and would have done so - ANZ no longer trusted plaintiff and would have terminated employment

CRIMINAL LAW - sexual assault - application for inquiry into convictions under s 78(1) Crimes (Appeal and Review) Act 2001 - whether incontrovertible proof of innocence - allegation that evidence destroyed or contaminated by investigating police officers - complaint that legal counsel and judicial officer corrupt and incompetent

CRIMINAL LAW - appeal against sentence - possession for purpose of supply of large commercial supply of lysergide and indictable quantity of methylamphetamine - unusual case - possession not by choice but retained possession for the purpose of supply - asserted errors in assessment by trial judge of seriousness of offence and aspects of subjective case - asserted excessive differential between sentences - error not established - sentences imposed reflected differing maximum penalties - manifest excess not established

CRIMINAL LAW - appeal - appeal against sentence - parity - whether justifiable sense of grievance arising out of sentences imposed on accessories after the fact - whether sentence imposed is manifestly excessive - where extent of applicant's ill-health not known at sentencing

CRIMINAL LAW - appeal - appeal against sentence - whether sentence imposed is manifestly excessive - no question of principle

PRACTICE AND PROCEDURE - application for a conditional stay of judgment pending appeal - whether evidence supported grant of stay on condition that part of judgment sum be paid to respondent

DAMAGES - measure of damages in actions for tort - appellant suffered injury during the course of his employment and incurred a loss in working capacity - whether the trial judge erred in fixing the appellant's damages for past economic loss by reference to the mathematical difference between his earnings before and after his injury - whether the trial judge had proper regard to the appellant's loss of economic capacity or made a finding to that effect - whether the approach of the trial judge was consistent with the manner in which the appellant's claim was advanced - whether the trial judge made the findings necessary to support the appellant's case on appeal

INSURANCE - respondent claimed damages from former dentist for injury suffered as a result of allegedly wrongful advice and treatment - primary judge granted leave to join insurer as second defendant to proceedings under s 6 of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - whether arguable that insurer is liable to indemnify insured - whether arguable that insured was aware of circumstances that might give rise to a claim - whether arguable that insured will not be able to satisfy judgment against her - appeal dismissed

TORTS - professional negligence - appellant retained respondent solicitors to act in transactions concerning shareholdings in family farming and grazing business - causation - whether respondents' breaches of duty and retainer caused appellant economic loss - whether appellant's concern about his legal position caused him to pay more under settlement agreement than he would otherwise have paid - no basis for appellate intervention established - appeal dismissed

SUCCESSION – family provision and maintenance – application by adult son – where will leaves estate to plaintiff son of first marriage and deceased’s surviving second partner equally – whether plaintiff left without adequate provision for proper maintenance, education and advancement – where plaintiff does not have present resources for contingencies – where plaintiff received substantial provision during the deceased’s lifetime – where surviving partner contributed significantly to deceased’s welfare during her lifetime – balancing moral obligation owed to adult child and partner – comparative needs positions of plaintiff and partner – held, equal distribution of estate not inappropriate

DEFAMATION – defences – defence of contextual truth – application on first day of hearing to amend contextual imputations in order better to distil meaning conveyed by matter complained of

CORPORATIONS - examinations relating to insolvency - application for setting aside or staying of examination summons and orders for production - whether examination summons and orders for production should be set aside or stayed. PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule - whether costs should be payable forthwith.

ADMINISTRATIVE LAW - judicial review - decision of State Parole Authority to refuse parole - serious offender - lengthy period of time in custody from young age - no "absence of evidence" for conclusion that external leave programs necessary for release - assessments by Community Corrections and Serious Offenders Review Council that there was a need to determine ability to adapt to normal lawful community life - no inflexible application of Operating Guidelines or failure to have regard to personal circumstances - no failure to take into account mandatory considerations - fact that plaintiff had spent a lot of adult years in custody was not irrelevant

CONTRACT - construction - calculation of incentive fee - principles - consideration of regulatory regime - plain meaning - purpose of provision not of particular assistance - significance of express exclusion - significance of anomalies - result not arbitrary or capricious

PROCEDURE - costs - whether costs should be apportioned to separate issues - no matter of principle

DEFAMATION – procedure – whether defendant should be required to verify defence – where plaintiff contends that defence contains allegations that are false

CORPORATIONS - managed investments - meetings - orders sought under Trustee Act 1925 (NSW) seeking judicial advice in respect of entry into trust scheme - where majority of unitholders voted in favour of the trust scheme and no party appeared to oppose the trust scheme - whether opinion, advice and directions in respect of trust scheme should be given.

APPLICATION for a review pursuant to s373 of the Legal Profession Act 2004 - application for leave to file amended summons - failure to comply with court orders - concession by the plaintiff that the summons pleaded no arguable cause of action - summons dismissed COSTS - indemnity costs in favour of the defendants

TORT - alleged conversion of painting - whether serious question to be tried that plaintiffs own painting; PRACTICE AND PROCEDURE - interlocutory application - injunction sought to restrain defendant from disposing, selling or transferring painting

JUDGMENTS - power to vary - slip rule - Uniform Civil Procedure Rules 2005 r 36.16 and r 36.17 - no dispute between parties as to error - error has no impact on conclusions the conclusions reached - judgment corrected

LIMITATION - application for leave to commence proceedings for modified common law damages for work related injury after expiry of 3 year limitation period - plaintiff a police officer suffering psychological injury from duties - decision to await her medical discharge before commencing proceedings - whether reasonable explanation for the delay - whether defendant prejudiced

APPLICATION - Application for inquiry into sentence pursuant to s.78 Crimes (Appeal and Review) Act 2001 - offences of manufacturing and supplying large commercial quantity of a prohibited drug - firearms offences - guilty plea - new evidence not before the sentencing judge - whether question as to mitigating circumstance - special circumstances and the relevance of mental illness - question of error by the sentencing judge - whether new evidence sufficient to give rise to a sense of unease or disquiet - application refused

PRACTICE AND PROCEDURE - discovery - obligation of a party not to disclose or use discovered documents otherwise than for the purposes of the conduct of the proceedings - covertly obtained audio and video recordings used by investigative journalist for purpose of broadcast - copies obtained as a result of discovery in defamation action - whether leave should be granted to allow copies to be provided to police for purpose of investigation of alleged offences under the Surveillance Devices Act - consideration of competing interests of justice

REAL PROPERTY - co-ownership - appointment of trustees for sale - whether partnership land is "property (other than chattels)" within s 66G of the Conveyancing Act 1919 (NSW) - whether partnership land is held in "co-ownership" within s 66G of the Conveyancing Act 1999 (NSW) - whether relief should be declined on discretionary grounds - equitable estoppel PARTNERSHIP - dissolution - partners subsequently transferring and dealing with partnership assets - partners not seeking orders for winding up or an account - limitation period for seeking an account expired - whether winding up complete EQUITY - estoppel - estoppel by encouragement - promise to leave land in will - whether detrimental reliance established

EQUITY - fiduciary relationships - company director - whether in breach of fiduciary duty by attempting to divert opportunity away from company and obtain personal benefits - whether in a position of conflict between personal interests and duties to company EQUITY - remedies - equitable compensation - whether loss of commercial opportunity caused by breach of fiduciary duty CORPORATIONS - directors - whether director in breach of duties by attempting to divert opportunity away from corporation and obtain personal benefits - Corporations Act 2001 (Cth) ss 181(1), 182(1) and 183(1)

PROCEDURE - proceedings - notice of motion - order seeking transfer of proceedings from Supreme Court of New South Wales to Supreme Court of Victoria - consent orders made

PRACTICE & PROCEDURE: professional negligence proceedings - motion seeking referral to mediation - Civil Procedure Act 2005 s.26(1) - where one party opposes referral to mediation - Court's power to order mediation - no point of principle

PRACTICE - NSW Trustee and Guardian Act - Managed person - Private managers - Remuneration - Regulatory regime - Report of NSW Trustee and Guardian

PROCEDURE - civil - judgments and orders - application to set aside judgment - where judgment sought to be set aside on the basis of a denial of natural justice - where judgment decided on the basis of an issue not raised by the parties CONTRACT - rectification of trust deed

CRIMINAL LAW - appeal - application for leave to appeal against decision refusing to quash part of indictment - statutory construction - whether a motorcycle is capable of being "property" within the meaning of s 193D Crimes Act - meaning of the phrase "other valuables" - whether confined to small items of personal property

CRIMINAL LAW - leave to appeal against sentence - whether sentence was manifestly excessive - failure to stop and render assistance after impact - s 52AB Crimes Act 1900 (NSW) offences - proper construction of s 52AB - whether sentence on summary disposal relevant - whether lesser offence relevant - relevance of negligent driving - appeal dismissed

CONTRACT - collateral contract - where second appellant promised purchase of room sales as inducement for respondent to enter lease with first appellant - whether intention to create legal relations CONTRACT - breach of covenant to repair - where lessee had to obtain alternative accommodation - measure of damages

CRIMINAL LAW - application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for murder - child at time of alleged offence - material discovered after all avenues of appeal were exhausted relating to prosecution witness at trial, prosecution duty of disclosure and whether applicant's solicitor at trial had conflict of interest - sense of unease or disquiet about conviction

CONTEMPT OF COURT - alleged contempt before Local Court proceedings - vexatious litigant - fitness hearing - application for leave to issue a further subpoena - application refused

CONTEMPT OF COURT - alleged contempt before Local Court proceedings - vexatious litigant - fitness hearing - application for further adjournment - refused

PRACTICE AND PROCEDURE - striking out statement of claim - failure to reveal a cause of action

CORPORATIONS - winding up - winding up in insolvency on application of substituted creditors - where there has been non-compliance by company with creditor's statutory demand - presumption of insolvency - whether company has rebutted presumption of insolvency - whether company should be wound up.

CIVIL LAW - nervous shock - psychological injuries - statutory limitations - dismissal of proceedings - full and satisfactory explanation for delay

CORPORATIONS - financial services and markets - financial services providers - carrying on financial services business without a licence - online market for contracts for difference - holding out that has a licence when that is not the case - remedies - restraint on carrying on financial services business CORPORATIONS - financial services and markets - market misconduct and other prohibited conduct - misleading and deceptive conduct CORPORATIONS - enforcement - declarations - where provisions contravened are not civil penalty provisions - where public right to be vindicated CORPORATIONS - management and administration - duties and liabilities of officers of corporation - disqualification from managing a corporation

COSTS - where motion dismissed by consent before hearing - whether costs of motion payable in absence of hearing on the merits - unreasonableness of conduct COSTS - indemnity costs - whether failure to file further evidence on remitter and abandonment of defences before hearing unreasonable conduct or misconduct - whether scope of remitter so clear that defendants' opposition to plaintiff's proposed orders an abuse of process COSTS - where plaintiff's legal advisers have indirect interest in plaintiff company - whether costs order in favour of plaintiff will result in double recovery - whether parties should bear their own costs

CRIMINAL LAW - application under s. 78 of the Crimes (Appeal and Review) Act 2001 - whether a doubt or question as to a mitigating circumstance - where applicant was convicted of murder - whether sentence imposed was infected by Muldrock error - error not made out - application refused

APPEAL - appellant failed to exclude several possible causes for the damage suffered and hence failed to discharge onus - doctrine of res ipsa loquitur inapplicable LEGAL PRACTITIONERS - undesirability of solicitor acting when a material witness in proceedings - risk posed to administration of justice when solicitor on record is also a witness - change in rule from qualified prohibition (Rule 19) to qualified permission (Rule 27.2) - same legislative purpose of protecting the administration of justice

PRACTICE AND PROCEDURE - hearing - application to vacate hearing date - whether failure to adduce expert evidence in reply and desire to prosecute an appeal in related proceedings constituted adequate bases to vacate hearing dates