Cases and authorities

CRIMINAL LAW - sentence - sexual assault upon a person under the age of 10 years - appellant sentenced to a non-parole period of 11 years and an additional term of 5 years, being a total term of 16 years - sentence found to have been infected by Muldrock error - matter referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 to determine whether some other sentence was warranted CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - victim of offending was the appellant's 9 year old daughter - offending occurred when appellant was exercising right of access - offending occurred in the immediate presence of the appellant's other two children CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - offending did not form part of a pattern of behaviour and was isolated - Necessity not to focus upon duration of offending when determining objective seriousness - Necessity to bear in mind long term psychological effects upon the victim CRIMINAL LAW - Sentence - Use of sentencing statistics - Use of sentences imposed in other cases for comparative purposes - Necessity for care when conducting comparisons of sentences - Necessity to determine an appropriate sentence according to principle as opposed to numerical equivalence

CORPORATIONS - membership rights and remedies - share capital - dividends - payment of dividends - whether the constitution required the payment of dividends on a particular class of shares without declaration or other decision to pay - where the constitution created a right to receive a dividend in respect of a particular period and specified the date for payment thereof - each such dividend to be equal to a stated fraction of "the profit of the company available for dividend purposes" for the period "based on" accounts for the period - meaning of "available for dividend purposes" - extent to which the directors had discretion in determining the profit of a period "available for dividend purposes" - CORPORATIONS - members' remedies and internal disputes - oppressive or unfair conduct - whether conduct of the company by accepting a contractual restraint on the payment of dividends and relying on that and other grounds to withhold dividend was within Corporations Act s 232 - where the contractual restraint was embodied in a loan agreement with the holding company - whether there was any commercial rationale for the restraint - where the company's decision to accept the restraint was made by directors all of whom were officers of the holding company - CORPORATIONS - constitution of a company - alteration thereof - by court order - time at which the alteration takes effect - EQUITY - rectification - rectification of instruments ex abundanti cautela - CORPORATIONS - constitution of a company - whether the constitution is amenable to equitable jurisdiction to order rectification - PROCEDURE - amendment of claim - whether discretion miscarried when an amendment application made on the eighth day of the trial was refused.

LOCAL COURT CIVIL CLAIM - appeal on questions of law - action for work done and materials provided - whether claim contractual or restitutionary - reasonableness of amount claimed

PROCEDURE - civil - judgments and orders - consent orders - court approval required for settlement - where plaintiffs minors

DISCOVERY AND INTERROGATORIES - Interrogatories - Whether "necessary" at the time order for interrogatories sought - No issue of principle - UCPR Pt 22, Rule 22.1(4)

CRIMINAL LAW - Sentence - murder - single stab wound to the chest - no premeditation - intention to inflict grievous bodily harm - provocation as a mitigating feature - previous offence of murder - future dangerousness - standard of proof - protection of the community - circumstances of deprivation - relevance of intoxication - victim's impact statement in cases of homicide - all human life precious - whether appropriate to take family victims' impact statements into account in determining sentence - recent amendments - "aspect of harm done to the community" - particular circumstances - special circumstances - aggravating features

CORPORATIONS - External administration - winding up - liquidator's applications - application for directions - liquidator's remuneration - whether entitled to remuneration out of assets held by company on trust - whether disbursements justified - fixing remuneration - whether time-cost basis appropriate held, time-cost is but one factor and neither dominant factor nor default position

TORTS - award of damages for past and future economic loss - use of buffer - whether primary judge erred in making an award for economic loss by way of buffer TORTS - award of damages for past and future attendant care services - whether award supported by evidence - whether award should have been on the commercial or gratuitous basis TORTS - contributory negligence - whether the primary judge erred in failing to find that the appellant was contributorily negligent - whether the response of the appellant was that of a reasonable person in her position

EQUITY - company director formulated and implemented plan to divert funding and business opportunities to new company - second appellant knowingly assisted him in dishonest and fraudulent design - whether causal connection between breaches of fiduciary duty and company's failure to obtain funding - whether loss of opportunity to obtain funding is itself a substantial financial loss - failure to obtain funding only causally related to financial loss where funding would have been put to profitable use - assessment of equitable compensation where plaintiff cannot adduce precise evidence of loss

CONTRACTS - construction and interpretation of contracts - appellant and respondents entered into written agreement whereby rights to certain temporary reserves were divided - whether royalties payable by appellant in respect of iron ore mined in defined area - whether ore mined by entities deriving title to relevant land through or under appellant - whether ore produced by appellant in association with others

PRACTICE - amendment application - appeal from refusal by primary judge - whether amendment arguable - whether amendment ought to be allowed having regard to case management principles - orders made by primary judge set aside

LIQUOR LAW - lease of licensed premises of a registered club - whether lease granted in breach of Liquor Act 2007 s 92 - effect of breach of s 92(1)(d) - whether the statutory purpose of the Liquor Act can be fulfilled without rendering the lease void and unenforceable REAL PROPERTY - lease of the core property of a registered club - whether a lease granted in breach of s 41J of the Registered Clubs Act 1976 rendered the lease void and unenforceable REAL PROPERTY - non-exclusive licence - whether licence granted a right of occupation within Retail Leases Act 1994

Wills - Construction - Gift in Will of "continued right of occupancy" of matrimonial home for as long as occupant requires - Entitlement to "occupy" in person or a tenant - Proprietary interest in the nature of a life estate - Entitlement distinguished from a personal right of residence, a mere licence.

STRATA SCHEMES - by-laws - by-law conferring exclusive use of common property in favour of entity who is not a lot owner - whether by-law may be made pursuant to general power of the body corporate to manage the common property - Strata Titles Act 1973 (NSW) s 58 - Strata Schemes Management Act 1996 (NSW) s 47 RETIREMENT VILLAGES - whether lot in a strata scheme used as a retirement village - no contractual relationship between owner of lot and operator of retirement village - Retirement Villages Act 1999 (NSW) s 24A REMEDIES - declarations - discretion to withhold relief - availability of alternative remedies - inordinate delay - detriment

DEFAMATION - evidence of similar imputations conveyed by another - objection as to relevance - peculiar damages claim based on hurt associated with divorce and loss of contract arising from defamation - publication relevant only to causation of damage issue in that regard

EQUITY - mortgage - "Lo Doc" loan - forgery - unconscionability - Contracts Review Act.

PROCEDURE - costs - appellate proceedings - respondent files in Court of Appeal submitting appearance save as to costs - respondent not represented at the hearing - appellant successful - directions made for subsequent filing of submissions on costs - respondent not thereby enabled to argue the question of costs at first instance - reservation in the notice of appearance is as to the Court of Appeal costs only - effect of submitting appearance - no general rule or expectation - the question of costs is to be determined in the whole of the context.

EQUITY – injunctions – interlocutory injunctions - whether sufficiently serious case for final relief - affecting future issue of units in trust - whether bona fide exercise of the trustee's discretion – balance of convenience

DEFAMATION - procedural application to strike out paragraph of defence dealing with contextual truth - hypothetical imputation - use of the term "fit and proper" appropriate in the circumstances - lateness of objection - case management and issues of delay

FAMILY PROVISION AND MAINTENANCE - Adult son - Mother and stepfather made mutual wills -Plaintiff's financial predicament result of plaintiff's own decisions - Need for provision for superannuation - Succession Act 2006, ss 59, 60

PROPERTY LAW - application to set aside default judgment for possession - whether triable issue - whether bank can rely on default alleged to have arisen from bank's misconduct EQUITY AND TRUSTS - whether property and choses in action associated held on trust - whether beneficiary has standing to bring claim where trustee insolvent

CRIMINAL LAW - sentence appeal - wounding with intent to murder - one count of wounding with intent to cause grievous bodily harm - whether omission to adduce relevant psychiatric evidence on sentence resulted in a miscarriage of justice

CRIMINAL LAW - PRACTICE AND PROCEDURE - application for an extension of time in which to bring application for leave to appeal against sentence - whether period of delay adequately explained CRIMINAL LAW - sentence - where co-offenders separately sentenced - where more serious charge laid against one offender - where factual findings different between offenders - where disparity in sentence said to have arisen as a consequence of the exercise of prosecutorial discretion - whether open to the court to go behind the exercise of discretion to determine whether a justifiable sense of grievance is made out

CRIMINAL LAW - sentence appeal - offence or robbery in company contrary to s97(1) Crimes Act 1900 - co-offenders charged with same offence - different sentences imposed - whether unjustified disparity in sentences - significant difference in subjective cases of offenders - disparity in sentences justified by differences between co-offenders.

CRIMINAL LAW - CONVICTION APPEAL - attempting to possess a commercial quantity of an unlawfully imported border control drug - 102 kilograms of pure heroin - whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case - whether verdict of jury unreasonable or could not be supported by the evidence - whether evidence as to flight properly admitted - evidence of Crown expert not misleading - differences in interpretation between Crown and defence experts not of significance in conduct of trial - differences in interpretation adequately explained by differences in audio equipment - strong circumstantial Crown case - on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt - evidence of flight properly admitted - no breach of s137 of the Evidence Act 1995 in admitting evidence of flight - conviction appeal dismissed - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - whether principle of parity properly taken into account - no significant difference in level of criminality between applicant and co-offender - differences in subjective case of applicant and co-offender - sentence of co-offender manifestly inadequate - parity principle not properly applied - need for applicant to be re-sentenced.

EQUITY - whether money owed to estate was provided as a loan or gift - where written document entitled acknowledgment of loan signed by party and testator - whether document contractual in nature or an admission - whether issue of past consideration arises - where provision in acknowledgment of loan for loan to be offset against entitlement of party as residuary beneficiary - application of rule in Cherry v Boultbee - whether that rule inconsistent with provision in acknowledgment of loan - basis upon which interest should be calculated

COMMERCIAL LAW - Personal property securities - (CTH) Personal Property Securities Act 2009 – extension of registration time - relevant considerations - security for joinder of company

INTEREST - recoverability of interest - where judgment in respect of loan agreement entered in plaintiff's favour and interest awarded at "usurious" contractual rate - whether plaintiff entitled to post-judgment interest at contractual rate - whether plaintiff entitled to post-judgment interest pursuant to Civil Procedure Act 2005 (NSW) s 101 - held plaintiff entitled to interest at statutory rate and not contractual rate; COSTS - no issue of principle - no order as to costs

REAL PROPERTY - mortgage - application to set aside default judgment for possession - possibility of unconscionable conduct

CONTRACT - whether the parties' discussions amounted to a contract for the transfer of real property to the plaintiff - whether intention to create legal relations in family context - effect of s 54A Conveyancing Act 1919 (NSW) TRUSTS - constructive trusts - whether defendant promised plaintiff ownership of a Property if the plaintiff renovated the Property at her cost - whether plaintiff renovated Property at her cost - whether plaintiff entitled to a declaration of trust ESTOPPEL - whether plaintiff encouraged to make renovations at her cost on reliance of a promise by defendant that the Property would be transferred to the plaintiff - detriment principles - whether plaintiff's change of position operates as a detriment - whether detriment of the plaintiff is proportionate to the value of the property - whether equitable compensation is an adequate remedy

EQUITY - Costs - Nominal damages - Where the plaintiff comprehensively failed on its claim - Award of nominal damages is not indicative of success - General rule that successful party should be awarded all its costs - No apportionment of costs between specific issues

DEFAMATION - pleadings - application to amend statement of claim

CORPORATIONS - membership, rights and remedies - application for rectification of share register under Corporations Act 2001 (Cth) s 175 - whether purported transfers of ordinary shares in company was invalid - whether plaintiff was validly removed as director. CONTRACT - existence of contract - whether plaintiff and first defendant entered into oral contract in respect of transfer of shares and vehicle for payments to third party - breach - whether established that first defendant breached contract. RESTITUTION - money lent - where first defendant acknowledges that relevant monies constituted a loan - whether established that first defendant has repaid relevant amounts to discharge debt liability. DAMAGES - where plaintiff is party to contract conferring benefit to third party - where breach of contract in respect of non-delivery of vehicle established - quantification - whether plaintiff can recover substantive damages - whether plaintiff has suffered loss or damage arising from breach - where plaintiff claims damages quantified in amount of payments made in performance of contract - where first defendant has partly performed contract - whether total failure of consideration provided by first defendant established.

CONTRACTS - construction - where parties entered into contract for sale of non-exclusive "interest" in software - nature of "interest" acquired by first plaintiff - whether interest was limited to software which existed at relevant date - whether first defendant owned copyright in software to exclusion of second defendant - whether first plaintiff was limited to licensing software to particular customer - whether first defendant had express or implied obligation to provide first plaintiff with source code and updates for, and modifications and developments to, software - whether initial contract was abandoned by parties. CONTRACTS - construction - where relevant parties entered into subsequent contract in respect of software - scope of licence granted under contract - whether licence was limited to specified period - whether second plaintiff was permitted to grant licences to new customers after that period - effectiveness of assignment - whether second defendant required to provide updates to second plaintiff to ensure software compatibility with other software. CONTRACTS - breach - whether parties had breached obligation to deposit source code with escrow agent - whether conditions of agreement for release of software from escrow were satisfied - whether second defendant breached obligations to provide development services, information and assistance - confidentiality - whether second defendant had received and disclosed confidential information - good faith and cooperation - whether there was a breach of obligation of good faith. CONTRACTS - termination - whether second defendant had properly terminated agreement - whether established that second plaintiff breached contract by non-payment of licence fees - whether second defendant had abandoned rights to termination - whether notice of termination of agreement was effectively served - whether there was a failure by second defendant to comply with dispute resolution clauses - whether termination was invalidated by non-compliance with dispute resolution clauses. CONTRACTS - existence of contract - whether established that entity was granting licences under previous agreement - where person is director of two associated companies - whether sub-licence was created by decision of common director. TORTS - tort of conspiracy - harm by unlawful means - where second and third defendants had entered into purchase agreement - where defendants had terminated earlier agreement - whether established that conduct constituted a tort of conspiracy - whether conduct was unlawful - whether established that a purpose of conduct was to harm second plaintiff - whether established that second plaintiff has suffered loss or damage caused by conduct. TORTS - tort of inducing breach of contract - whether conduct constituted breach of earlier agreement - whether third defendant induced or procured second defendant to engage in conduct - whether third defendant had sufficient knowledge of terms of previous agreement - whether third defendant had requisite intention for second defendant to breach the previous agreement. TRADE PRACTICES - misleading or deceptive conduct - where representations were made on website registered to company not party to proceedings - whether third defendant engaged in trade or commerce between Australia and another country - whether third defendant engaged in conduct involving the use of telegraphic or telephonic services - whether established that representations were made by third defendant - whether representations were misleading or deceptive or likely to mislead or deceive. TRADE PRACTICES - unconscionable conduct - whether second and third defendants are corporations engaged in trade or commerce - whether plaintiffs were under a special disadvantage known to second and third defendants - whether second and third defendants unconscientiously took advantage of plaintiffs' special disadvantage - whether second and third defendants were engaged in conduct in connection with supply or possible supply of goods or services - whether second and third defendants engaged in unconscionable conduct under Australian Consumer Law ss 20 and 21. INTELLECTUAL PROPERTY - copyright - groundless threats of legal proceedings - whether third defendant made threats in respect of infringement of copyright - whether statements constituted groundless threats of copyright infringement. WORDS AND PHRASES - "interest", "customer". INTELLECTUAL PROPERTY - copyright - original works in which copyright subsists - whether copyright subsists in each update or new release of software and user documentation - whether first cross-claimant owned copyright in software releases in relevant periods. INTELLECTUAL PROPERTY - copyright - infringement - whether third cross-defendant infringed copyright in software - whether first, second and fourth cross-defendants had authorised alleged copyright infringement - liability of director of cross-defendants - whether cross-claimants are estopped from bringing an action for infringement of copyright - whether additional damages should be awarded under Copyright Act 1968 (Cth) s 115(4). TRADE PRACTICES - misleading or deceptive conduct - whether established that alleged representations were made by first, second and third cross-defendants - whether representations were misleading or deceptive or likely to mislead or deceive - whether cross-claimants had relied on alleged representations - whether established that loss and damage suffered by cross-claimants was caused by representations - accessorial liability - application of Australian Consumer Law ss 18 and 29. EQUITY - breach of confidentiality - whether information in licence key generator is property - whether information is confidential - whether second and third cross-defendants owed an obligation of confidentiality to cross-claimants - whether second and third cross-defendants breached obligation of confidence. INTELLECTUAL PROPERTY - trade marks - infringement - where third cross-defendant had used phrase on website - whether first cross-claimant has standing to bring claim - whether cross-claimant is entitled to be registered as owner of registered trade mark - whether conduct of cross-defendants constituted trade mark infringement - whether cross-defendants are liable for additional damages.

CONTRACT - Interpretation - Restraint Clause - Identification of ambiguity not a precondition to examining legitimate surrounding circumstances - Scope of surrounding circumstances to be understood by reference to what the parties knew in the context of their mutual dealings - Whether surrounding circumstances revealed absurdity or inconsistency in a literal construction of the deed EQUITY - Remedies and Procedure - Mistake - Rectification - Mistake as to effect - Whether there is clear and convincing proof of a common intention between the parties - Requirement that the common intention be consensual and expressly manifested by words or conduct

LIMITATION OF ACTIONS - contracts, torts and personal actions - the period of limitation - extension thereof - Limitation of Actions Act 1936 (SA) - negligence action against occupiers of property in South Australia for injury allegedly sustained through hidden hazard on the property - action commenced in New South Wales after expiry of limitation period prescribed by South Australian Act - primary judge made an order extending the period - question under that Act as to whether the proceedings were commenced within twelve months after the plaintiff became aware of facts material to his case - the facts relied upon went to diagnosis of depression and extent of injury to ankles and knees - review of primary judge's findings as to the time at which relevant facts were ascertained and their materiality to the negligence claim.

APPEAL - whether undetermined proceedings in Industrial Relations Commission deemed to be proceedings in Supreme Court - meaning of "heard or partly heard" - whether hearing on jurisdictional question by improperly constituted Commission amounted to proceeding being "partly heard" - no basis shown for grant of leave to appeal - proceedings dismissed

DAMAGES - assessment of damages - default judgment on cross-claims - real property - forged mortgage - claim on Torrens assurance fund - settlement - fair and reasonable - sum paid to settle proceedings sought - interest - COSTS - costs follow the event - no point of general principle

PROCEDURE - civil - judgments and orders - examination order - Proceeds of Crime Act 2002, s 180 - set aside orders; application for - late application - no error in orders demonstrated - no injustice

EQUITY - COMPANIES - Fiduciary duty of directors to avoid conflicts of interest - Corporations Act 2001 (Cth) ss 181, 187 and 601FD - obligation of directors to act bona fide in the best interests of the company for a proper purpose and not improperly to use their position to gain an advantage for another person - UNCONSCIONABLE CONDUCT - Australian Securities and Investments Commission 2001 (Cth) ss 12CA and 12CB - where plaintiff held units in a registered managed investment scheme - where two of its directors were also directors of the responsible entity of the scheme - where both were subsidiaries of the same holding company - where those directors committed the plaintiff to agreements with the responsible entity which converted its equity into a loan with a fixed repayment date and then committed the plaintiff to an amending agreement which removed the fixed repayment date - whether the directors acted in a situation where their duties to both entities were in conflict - whether the directors acted bona fide in the best interests of the plaintiff and for a proper purpose - whether the responsible entity has acted and continues to act unconscionably by treating the plaintiff as a bare lender rather than an equity holder - REMEDIES - plaintiff seeks rescission of the amending agreement only - HELD - the directors were in a position of conflict - the transactions were not bona fide in the best interests of the plaintiff or for a proper purpose and they improperly used their positions to gain an advantage for another person - plaintiff entitled to rescission of the amending agreement but only on condition that the original loan agreement is also rescinded - HELD - unconscionable conduct as alleged not established

PRACTICE - security for costs - unexplained delay - unexplained standing by while other respondents seek and obtain security for costs - security already given by caveats on real property - no evidence of material change in circumstances

TORTS - negligence - duty of care - breach of duty - whether Civil Liability Act 2002 (NSW), s 43A applied - whether placing certain traffic control signs and omitting other signage involved the exercise of a "special statutory power" - prohibition on any person installing prescribed traffic control devices combined with requirement for statutory authority to undertake such activity WORDS AND PHRASES - "special statutory power" - Civil Liability Act 2002 (NSW), s 43A TORTS - negligence - duty of care - breach of duty - standard of liability - Civil Liability Act 2002 (NSW), s 43A - motor vehicle accident - whether omission of signs on road was an act no authority could properly consider a reasonable exercise of its power - expert evidence - evidence of council officer - omission of "slippery road" sign despite direction in Traffic Control Plan - common sense TORTS - negligence - causation - onus - balance of probabilities - whether primary judge erred in comparison of probabilities with possibilities TORTS - negligence - causation - motor vehicle accident - whether absence of signage caused driver to lose control on first resurfaced section - balance of probabilities - no direct proof - whether circumstances give rise to a reasonable and definite inference - consideration of state of the road, circumstances of accident, expert evidence and competing hypotheses

APPEAL - whether appellate deference given to construction given by primary judge - Galcif Pty Ltd v Dudley's Corner Pty Ltd (1995) 6 BPR 14,134 explained CONTRACT - construction - covenant in restraint of trade - meaning of prohibition on engaging in "similar" concept - reliance on text and purpose and object of transaction - distinction between sale of business agreement and distributor agreement - construction of contract as a whole - whether clause breached PRACTICE - refusal of amendment late in the hearing - no error shown

REAL PROPERTY - application to extend operation of caveat under s 74K(1), Real Property Act 1900 (NSW) - where interest claimed is equitable charge securing payment of judgment which has been set aside on appeal to this Court - where application for special leave to appeal to High Court - where accepted that reasonably arguable case for grant of special leave

DAMAGES - torts - negligence - reconstructive surgery - assessment of damage reflected trial judge's findings on credibility - ought not be disturbed - sufficient reasons

RESTITUTION - remedies at common law - action for money had and received - payment of company's money by a director alleged to have no authority to cause the payment to be made - no allegation of breach of fiduciary or other duty or dishonesty by the director - recovery action brought by the company against the third party recipient alone - no basis for equitable relief - whether proceeds of payment by the company identifiable in the third party recipient's hands - where the money was transferred from the company's bank account to the third party recipient's overdrawn account at the same bank - no credit balance resulting in the recipient's account - no ability to follow or trace into the overdrawn account - where the director was owed money by the company payable on demand - whether the director should be presumed to have sought and obtained payment of that money when he caused the company to make the payment

REAL PROPERTY - Co-owners - Statutory power of sale - Application by bankruptcy trustees of one co-owner - Whether bankruptcy trustees ought be appointed as trustees of sale - whether costs of trustess relevant when considering the appointment of a trustee in bankruptcy as trustee for sale - whether mortgagee ought be notified

APPEALS AND REVIEWS - appeal on question of law alone - leave to appeal on question of mixed law and fact - statutory construction - discussion STATUTORY CONSTRUCTION - several overlapping statutes of one legislature - harmonious goals - context essential TRAFFIC LAW - Regulation of Tow Truck drivers - definition of B-double and road train - distinction between motor vehicle and trailer, trailer and semi-trailer, towing and driving

CRIMINAL LAW - appeal - sentence - sentence of imprisonment and fine imposed - legislation requiring sentencing judge to take into account financial circumstances of offender - sentencing judge relied on the need for general deterrence and appropriate financial penalty where crime committed for financial gain - applicant put on notice of possibility of fine and asked for comment - no reasonable prospects for appeal - leave refused