Cases and authorities

PROCEDURE - amendment of pleadings - no question of principle.

CRIMINAL LAW - sentencing - murder - single punch - intent to cause grievous bodily harm - seriousness aggravated by victim being elderly and offence occurring in victim's home - conviction after trial - importance of general deterrence - few favourable subjective circumstances of offender

JUDICIAL REVIEW - leave to appeal from interlocutory decision of Local Court - application to amend statement of claim - application to join trustee in bankruptcy - whether proceedings statute barred - construction of loan agreement - whether cause of action accrued on default in payment of first instalment - whether proceedings futile - plaintiff lacked standing to bring proceedings - whether there was a mistake in the name of a party - Civil Procedure Act, s 65(2)(b).

[SUCCESSION] Family Provision - Eligible person - Whether plaintiff a de facto spouse of deceased at time of death - Whether dependent on deceased. [SUCCESSION] - Family Provision - Limitation of actions - Extension of time - Whether extension ought to be given - Succession Act 2006, s 58. [PRACTICE AND PROCEDURE] - Commencement of action - Amendment of originating process - Where summons made no claim for family provision - Where amended summons made such claim - Whether amendment dated from date of commencement of action or from date of amendment - Civil Procedure Act 2005, ss 64 and 65.

CRIMINAL LAW - sentence - guilty pleas - three charges of common assault - one charge of assault occasioning actual bodily harm - one charge of manslaughter by an unlawful and dangerous act

CRIMINAL LAW - sentence - murder - Offender (aged 28 years) beats a friend (aged 57 years) to death - attack in victim's home - multiple blows struck to victim's head using various implements as weapons - evidence does not permit finding that victim provoked Offender prior to attack - Offender subject to conditional liberty - late plea of guilty - assessment of risk of reoffending and prospects of rehabilitation - specific and general deterrence

CRIMINAL LAW - sentencing - joint criminal enterprise - manslaughter - parity - finding of special circumstances

APPLICATION FOR PRELIMINARY DISCOVERY - whether plaintiff satisfies Rule 5.3 Uniform Civil Procedure Rules 2005 - whether preliminary discovery would relevantly assist plaintiff to make the decision to make a claim against defendant - claims plaintiff could potentially bring against defendant - challenge to funding agreement to fund proceedings in Supreme Court of Queensland against plaintiff - funding and funded party in liquidation.

PROCEDURE - costs - application for injunction to restrain a party from applying for costs to be referred for assessment - party entitled to costs served notice under Legal Profession Regulation 125 of application to be made to the Manager, Costs Assessment for costs to be assessed - party liable to pay costs applied for gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 - referral of costs for assessment would prevent court making gross sum costs order - whether injunction will lie to restrain application for costs to be referred for assessment - injunctions would not be in aid of enforcement of a legal or equitable right - exercise of right to apply for assessment of costs not unconscientious and does not interfere with the integrity of the court's process

JUDICIAL REVIEW - appeal from Local Court - evidence of plaintiff rejected -whether Magistrate erred in failing to expressly address plaintiff's honesty as a witness - adequacy of reasons - whether error of law established by failure to make a finding of fact - whether Magistrate applied the wrong test - whether Court has power to make primary findings of fact on a Local Court appeal where an error of law demonstrated.

CORPORATIONS - Articles of association - purported amendment by members' circular resolution inserting new article requiring that all resolutions of company only be passed, carried and effected with the affirmative votes of at least 75% majority of votes of members present and voting - whether amendment invalid and of no effect - first defendant shareholder not duly authorised as corporate representative of plaintiff to assent to a circular resolution - resolution oppressive within (Cth) Corporations Act 2001 s 232(c) and (e) - appropriate to modify constitution by repealing inserted article.

PRACTICE & PROCEDURE - pleadings - whether claim sufficiently particularised - whether sufficient notice of claim provided - where failure to adduce relevant expert evidence - no question of principle

COSTS - motion settled - no issue of principle

APPEAL FROM LOCAL COURT - notice of discontinuance filed without consent of other party or with leave of the court - other party's consent to discontinuance provided to the court - order as to costs.

CORPORATIONS - winding up - liquidators - funding agreements - application by liquidator seeking approval to enter litigation funding agreement and retainer agreement - whether the liquidator has seriously arguable claims - whether liquidator has adequately consulted with creditors. PROCEDURE - costs - general rule that liquidator's costs of application be costs in the liquidation - where another party given leave to be heard under r 2.13(1)-(2) Supreme Court (Corporations) Rules.

CORPORATIONS - management and administration - application for declaration that appointment of receivers and managers is invalid under s 418A(2) Corporations Act 2001 (Cth) - application for interlocutory relief restraining receivers and managers from exercising rights as receivers and managers - whether the plaintiff has established a sufficiently arguable case for a final injunction to justify the grant of interlocutory relief - whether a serious question to be tried as to misleading and deceptive conduct is established - whether a serious question to be tried as to unconscionability is established - whether the balance of convenience favours interlocutory relief.

APPEAL - appeal from Local Court - dismissal of summary charge - error of law - remittal -whether appeal should be dismissed though error of law shown. CRIMINAL LAW - break, enter and steal - scope of joint criminal enterprise - whether opening closed door is breaking.

EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - proposal to amend a Trust instrument - trust instrument lacks certain powers - trustee proposes the grant of express powers in the trust instrument including powers to improve and repair trust assets, to borrow and grant security, to lend money, to delegate duties, and to amend the trust deed without Court application - whether Trustee Act, s 81 authorises the conferring of these powers on the trustee - whether the powers sought should be conferred.

CRIMINAL LAW - sentence appeal - sexual intercourse without consent - applicant sentenced in May 2009 - Notice of Intention to seek Leave to Appeal against Sentence lapsed - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time within which to seek leave to appeal against sentence - extension of time opposed by Crown - importance of principle of finality - principle of finality applies to sentence appeals as well as conviction appeals - need to consider all relevant factors when considering application for extension of time - length of delay, reasons for delay, interests of community, interests of victim and whether substantial injustice would result if an extension of time were refused - prospects of success of application for leave to appeal - application of s6(3) of the Criminal Appeal Act 1912 - re-exercise of sentencing discretion if "Muldrock error" made out - use of statistics - no lesser a sentence warranted in law - extension of time refused.

CORPORATIONS - Statutory demands - application to set aside creditors' statutory demand under (Cth) Corporations Act 2001 s 459H - whether genuine dispute as to the existence of the debt.

PRACTICE AND PROCEDURE - application to amend statement of claim - no question of principle.

EVIDENCE - expert evidence - evidence in reply - late service of report by Plaintiffs - no explanation for late request to expert - where Plaintiff have other reports in reply to the same evidence

CONTRACTS - Restraint of trade - Territorial limitation - Sale of legal business - Where vendor restrained from practising in New South Wales - Where vendor transferred clients to a third company carrying on a legal practice - Whether third company could be restrained. TORT - Specific torts - Inducing breach of contract - Whether injunction could be had as a remedy therefor. REMEDIES - Equity - Injunctions - Interlocutory - Whether injunction should issue against company not a party to contract.

CORPORATIONS - section 237 Corporations Act 2001 (Cth) application for leave to bring proceedings on behalf of company - whether grant of leave in best interests of company - lack of evidence - leave refused PROCEDURE - application to amend statement of claim - no issue of principle

EQUITY - trusts and trustees - applications to the court for advice - insolvent deceased estate - whether executor justified in pursuing appeal - where success on appeal might prevent expansion of scope of other litigation involving estate - judicial advice given that executors would be justified in pursuing appeal

CORPORATIONS - winding up - liquidators - funding agreement - application for approval of entry into funding agreement - where approval sought retrospectively whether the Court should give a direction under s 479(3) of the Corporations Act 2001 (Cth) where there was a long delay in seeking the Court's approval of the entry into the funding agreement. CORPORATIONS - winding up - liquidators - costs agreement - application for approval of entry into costs agreement - where approval sought retrospectively - where the provisional liquidator retained solicitors also retained by the plaintiffs in proceedings - whether the Court should give a direction under s 479(3) of the Corporations Act 2001 (Cth) where there was a long delay in seeking the Court's approval of the entry into the costs agreement. CORPORATIONS - winding up - liquidators - deed of assignment - application for approval of deed of assignment - where approval sought retrospectively - whether entry into deed of assignment in best interests of company's creditors - whether deed of assignment required approval under s 477(2B) Corporations Act 2001 (Cth). PROCEDURE - subpoenas - application to set aside subpoenas - whether subpoenas are an abuse of process - whether subpoenas are oppressive. PROCEDURE - strike out application - application to strike out defence - whether an "apportionable claim" exists for the purposes of s 35(1) Civil Liability Act 2002 (NSW) and s 1041N(1) Corporations Act 2001 (Cth) - whether a claim under s 1324(10) Corporations Act is available - whether specified paragraphs of the defence make unparticularised allegations.

CONTRACT - Formation - Signed document - Incorporation of terms in another document - Objective test of intention - Construction of contract

TRIAL PROCEDURE - whether determination of any account should be heard concurrently with the claim and cross-claim - circumstances in which beneficiaries are entitled to pursue an account and inquiry against executors and trustees - whether an account was likely to be ordered in the proceedings - process of taking accounts.

REAL PROPERTY - plaintiffs are trustees for sale of real estate in bankruptcy - defendants lodged multiple unmeritorious caveats to delay sale of the property - trustees seek pecuniary compensation under Real Property Act 1900 s 74P for the loss of interest and additional legal fees incurred due to the delay of the sale of the property caused by the caveats - whether defendants responsible for the whole or only part of the period of delay - whether the defendants all responsible for the loss claimed.

CRIMINAL LAW - sentence appeal - offence of threatening judicial officer - threats of death - no failure by sentencing judge to have regard to subjective features - range of conduct encompassed by the offence - stern sentence appropriate

CRIMINAL LAW - appeal - sentencing - murder - applicant sentenced to minimum term of 21 years imprisonment with a balance of term of seven years - whether starting point prior to discount for plea of guilty was manifestly excessive - whether sufficient weight given to findings of remorse, no premeditation and significant degree of provocation - sentence not outside appropriate range CRIMINAL LAW - appeal - sentencing -limited use of statistics without circumstances of cases - similar cases used to establish sentence outside appropriate range - applicant distinguished by record of violent assault, extraordinary degree of violence in committing offence - sentence not manifestly excessive

FAMILY LAW AND CHILD WELFARE - child welfare under state legislation - adoption - where it is not apparent on the child's instrument of consent that the child's counsellor has certified that the child understands the effect of signing that instrument - where no notification of putative birth father or consent dispense order thereto - whether in the best interests of the child to grant leave to appeal

CRIMINAL LAW - statement of case by District Court to Court of Criminal Appeal - s 5B Criminal Appeal Act 1912 - District Court granted Crown leave to adduce fresh evidence on offender's appeal from Local Court to District Court - evidence of admissions made by offender to probation officer after conviction - whether open to District Court judge to be satisfied that in the interests of justice that evidence be admitted - whether error in not submitting this question of law to Court of Criminal Appeal - judicial review

PROCEDURE - pleadings - late application to amend defence and file a cross-claim - proposed cross-claim to join new parties - leave given to file cross-claim earlier but no cross-claim filed - hearing date appointed before present application - filing of cross-claim would result in vacation of hearing date - information for cross-claim available earlier - lack of expedition by defendant - no explanation for delays - amended defence not raising new matters - leave to amend defence - leave refused to bring cross-claim

SUCCESSION - Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendant one of the children of the deceased by a prior marriage and the executor appointed in the Will of the deceased, to whom Probate was granted - Whether family provision order should be made bearing in mind the provision made in the Will, and if so, the nature and quantum of the further provision to be made

PROPERTY - fixtures to land - intention of parties - degree of annexation - where uncertainty over who owned disputed items prior to transfer of title - where uncertainty over whether party held rights of ownership or rights of a secured creditor over the disputed items - where certain items partly welded in place and structures built around them which would have to be demolished, in part, to remove them - where certain items are part of an integrated processing and bagging facility - whether removal would destroy the items - whether the cost of removal would exceed the value of the items - whether removal would damage the property - whether terms of a lease assists with determining the intention of parties.

PROCEDURE - Supreme Court procedure - New South Wales - whether leave should be granted to amend statement of claim - whether insurer may be joined as party - CONTRACTS - assignment of insurance policy by trustee in bankruptcy - Bankruptcy Act 1966 (Cth) s 117 - construction and interpretation of contracts - whether flight record tax invoice constitutes an insurance policy

CORPORATIONS - meetings - where company sought order under s 1322(4)(d) extending the time prescribed by s 249D(5) for the calling and holding of a requisitioned meeting - where extension to secure adequate time for the completion of necessary preparation for the meeting - time for calling and holding meeting extended

CORPORATIONS - deregistration - where parties by consent seek to vary an order under s 509(6) after the expiration of the time limited for the making of an order under that section - where Court invited not to make a new or different order under s 509(6), but to vary the existing order in exercise of the Court's power to vary orders where the variation is consented to - order varied

CORPORATIONS - Application for declaratory relief under (Cth) Corporations Act 2001 s 447E - Interlocutory application to amend points of claim - Application granted in part.

REAL PROPERTY - strata title - application to set aside resolutions of owners corporation and quash decision of Strata Schemes Adjudicator - notice of application pursuant to s 135 of the Strata Schemes Management Act 1996 - Wednesbury unreasonableness - procedural fairness - jurisdiction of adjudicator pursuant to s 153(1) - effect of orders of superior court of record - orders valid until set aside - a Strata Schemes Adjudicator is not the Consumer, Trader and Tenancy Tribunal (CTTT) - joinder of individual adjudicator as appropriate defendant - Strata Schemes Adjudicator a tribunal for the purposes of s 69(4) of the Supreme Court Act 1970 - setting aside resolutions of owners corporation - resolutions made contrary to court order but pursuant to decision of Strata Schemes Adjudicator - power of court to make order allowing owners corporation to levy lot owners other than in proportion to unit entitlement - interpretation of court orders - meaning of "necessary"

PRACTICE AND PROCEDURE -Judgments and orders - Interlocutory injunctions - Freezing orders - Threatened removal of trust assets from Australia - Balance of convenience - Injunction granted

EVIDENCE - admissibility - whether evidence admissible under s79 Evidence Act 1995 (NSW) - whether evidence complies with Uniform Civil Procedure Rules 2005 (NSW) r 31.23, r31.24, r31.27.

SUCCESSION - wills, probate and administration - NSW Trustee and Guardian previously appointed by the Court as administrator of the estate pursuant to NSW Trustee and Guardian Act 2009, s 22 - further litigation in relation to the administration of the estate likely - NSW Trustee and Guardian now seeks to set aside its appointment - if the NSW Trustee and Guardian's motion is successful the defendant seeks to appoint - an independent solicitor as the administrator - whether NSW Trustee and Guardian's appointment is unsuitable. COSTS -motion seeking appointment of an administrator opposed by the plaintiff -administrator appointed - whether costs should follow the event.

CRIMINAL LAW - procedure - fitness to plead - murder - fit to be tried

COSTS - motion by Plaintiffs to re-admit evidence rejected in earlier judgment - fresh arguments not previously raised - Plaintiffs partly successful - Plaintiffs to pay costs

EVIDENCE - expert evidence - admissibility - some factual material relied upon by expert not in evidence - whether report should be rejected prior to completion of trial - whether opinion infected by rejected evidence

EVIDENCE - relationship evidence - whether relevant - operation of exclusionary provisions

PRACTICE AND PROCEDURE - civil - interlocutory issues - preliminary discovery

PROCEDURE - Vexatious Proceedings Act 2008, s 8 - whether proceedings the plaintiff commenced are "vexatious" - whether proceedings were conducted "frequently"- whether the Court should exercise its discretion to make a s 8 order - whether any order should be made prohibiting defendant from commencing or conducting proceedings against only certain named potential defendants - whether all existing proceedings the defendant has initiated should be stayed.