Cases and authorities

PROCEDURE - freezing order - variation of orders - no point of principle

PROCEDURE - unrepresented plaintiffs - application for pro bono assistance - claims against defendants not discernible from pleading - plaintiffs unable to obtain legal representation - hardship - referral in interests of justice for all parties

CRIMINAL LAW - sentence - manslaughter - criminal negligence - discount for assistance to authorities - failure to seek medical assistance for child - discount not to result in inappropriate sentence

REAL PROPERTY - possession of land - application to stay writ of execution - settlement of stay application - agreement allowing mortgagor time to sell property or pay higher sum to mortgagee - settlement of sale aborted because Discharge of Mortgage not properly executed by Plaintiff - purchaser in any event not available to settle - whether Plaintiff repudiated agreement - effect of sale not settling

[PRACTICE AND PROCEDURE] - applications for stay of proceedings - whether amended claims and defences constitute a dispute "under" arbitration agreement [COMMERCIAL ARBITRATION] - where arbitration agreement between the parties made at time when Commercial Arbitration 1985 (WA) in force - previous disputes the subject of arbitration - subsequent enactment of Commercial Arbitration Act 2012 (WA) - whether Commercial Arbitration Act 1985 (WA) applies by reason of transitional provision in the 2012 Act.

JUDGMENT AND ORDERS - family provision - whether interest payable on a family provision order - whether an applicant should have liberty to apply if the order is not paid by a specific date COSTS - awarding of costs in circumstances where two applicants are jointly represented and one is successful and the other unsuccessful - whether an adverse costs order should be made against the unsuccessful applicant - whether costs should be borne or paid by all of the beneficiaries where this has the effect of requiring a successful applicant to pay part of the estate's costs - what constitutes an offer of compromise under Uniform Civil Procedure Rules 2005 (NSW) Pt 20 Div 10

CRIMINAL LAW - application for leave to appeal sentence - offence of attempted possession of marketable quantity of cocaine - guilty plea - whether sentence manifestly excessive - whether sentencing judge erred in not treating offence as isolated incident - whether evidence was capable of giving rise to inference appellant had engaged in prior criminal conduct - appeal allowed - sentence quashed - re-sentenced

PROCEDURE - application by prospective appellant for an extension of time within which to file a notice of appeal - where appeal of other defendant already on foot - where plaintiff seeks to enforce whole judgment against prospective appellant as joint tortfeasor despite prospective appellant already having paid its share of judgment to plaintiff, rather than plaintiff enforcing judgment against other joint tortfeasor who appealed within time and who has not paid its share of judgment - where prospective appellant and appellant were both successful on respective cross-claims against each other for contribution - where plaintiff may have already lost workers compensation entitlement due to reception of prospective appellant's payment regardless of outcome of either appeal

CONTRACT - identification of contract terms - where offers and counter-offers by email, with no final agreement, preceded written "in principle agreement" - where written agreement subject to formal deed that may contain further terms not inconsistent - where written agreement amended to be "binding" - where written agreement made no reference to term providing for mutual release mentioned in email exchange - where written agreement incorporated terms of an email by specific reference - where subsequent deed not executed amidst disagreement as to term of release - whether release term incorporated or to be implied into "in principle agreement" - whether "in principle agreement" not capable of specific performance as an accord executory

PROCEDURE - Judgments and orders - enforcement of judgments and orders - equitable execution - receivers CORPORATIONS - members rights and remedies - derivative actions - where liquidators appointed - where liquidator was prosecuting concurrent bankruptcy proceedings against defendants - whether leave to sue in name of company would be granted - notice of motion seeking appointment of receiver by way of equitable execution over assets of defendants for purpose of satisfying amount due to second plaintiff under earlier orders.

PRACTICE AND PROCEDURE - Adoption proceedings - request for adjournment by first defendant mother due to illness - first defendant still under cross-examination when proceedings adjourned but hearing close to conclusion - consideration of whether substantive prejudice caused by adjournment and utility of adjournment - adjournment granted.

SUCCESSION - wills, probate and administration - the making of a will - testamentary capacity - deceased made two wills - first will left estate to sister whereas second left estate to person of whom there is no evidence of existence - deceased suffered from paranoid schizophrenia - whether deceased had testamentary capacity at the time of making second will - onus of proof for testamentary capacity

CRIMINAL LAW - proceeds of crime - restraining orders - no question of principle

PROCEDURE - plaintiffs admittedly failing to comply with orders for discovery - where hearing date looming and plaintiffs incompetently represented - new solicitor coming onto the record during the hearing of the motion

PROCEDURE - freezing order - proposed recipient evading service - substituted service - no point of principle

JUDGMENTS - res judicata - issue estoppel - extended estoppel - claim by trustee in bankruptcy for certificates of title - defence raising matters determined in bankruptcy proceedings and other proceedings involving the same and different parties - issues decided adversely to defendant - defence struck out - orders made

CRIMINAL LAW - application for inquiry into sentence following conviction - s 78, Crimes (Appeal and Review) Act 2001 - whether change in sentencing practice brought about by High Court decision in Muldrock v The Queen capable of constituting "mitigating circumstance" in s 79, Crimes (Appeal and Review) Act 2001 - "mitigating circumstances" confined to errors of fact, not law - principle of finality - disparity between offenders who exercised right to appeal sentence pre-Muldrock and those who did not resolved by concept of merger - application refused

PROCEDURE - appeal from magistrate - application to strike out appeal for want of prosecution - appeal on grounds of law - delay in obtaining transcript - delay not adequately explained - appeal to proceed on basis of evidence filed to date

CORPORATIONS - EXTERNAL ADMINISTRATION - Winding up - priorities - subrogation - Where third party voluntarily paid certain employee entitlements owing by company after date on which winding up deemed to have commenced - whether third party entitled to be subrogated, pursuant to Corporations Act 2001 s 560, to priority position enjoyed by employees in respect of liabilities of the company that it had discharged - No entitlement to subrogation per s 560 because company in liquidation did not pay the employee related liabilities using monies lent to it by third party, instead, the third party paid those liabilities directly itself. EQUITY - SUBROGATION - Whether Corporations Act 2001 s 560 leaves any room for operation of equitable doctrine of subrogation - section 560 creates right of subrogation where one would not otherwise exist - in context of liquidation, equitable subrogation not excluded by provisions of Corporations Act - whether requirements for equitable subrogation satisfied - only context in which spontaneous voluntary payment by a third party may found a claim for subrogation is in exceptional category of the payment off of existing securities - basis for equitable subrogation not established because third party made payments spontaneously and voluntarily, in absence of any circumstances affecting the company's conscience.

APPEAL FROM LOCAL COURT - Appeal against orders by magistrate that non-intimate forensic procedures be carried out - whether plaintiff denied procedural fairness.

CORPORATIONS - share capital - shares - whether voting rights attached to relevant shares - whether valid votes were cast for removal of plaintiff as director - whether conversion of specified convertible preference shares occurred - whether representational or conventional estoppel prevents denial that shares were converted. CORPORATIONS - management and administration - duties and liabilities of officers of corporation - directors' duties - claim for breach of fiduciary duties and breach of directors' duties at general law - whether defendants as directors of second plaintiff owe a duty to the holding company of the second plaintiff. CORPORATIONS - management and administration - duties and liabilities of officers of corporation - claim for breach of ss 180(1) and 181(1) Corporations Act 2001 (Cth) - duty to act in good faith in the company's best interests - claim that payments were unauthorised - whether payments should be characterised as distributions or as loans - where in the context of a family group and family trust - whether resolution of directors occurred authorising payments - whether meeting of minds of directors occurred as to matters necessary to give rise to informal authorisation of payments - where alternate claim for unjust enrichment established - whether a demand for repayment had been made. CORPORATIONS - management and administration - duties and liabilities of officers of corporation - oppression - whether the affairs of the company were being conducted in a way contrary to the interests of the members as a whole - whether the first plaintiff was excluded from the management of the group - whether there was an expectation of participation in management - whether the first plaintiff was deprived of information - whether the court should exercise its discretion to deny relief to the first plaintiff on the basis that her conduct brought about the behaviour relied upon as oppression. CORPORATIONS - winding up - application for winding up on just and equitable ground - whether the companies can effectively function where personal relationships have broken down. EQUITY - general principles - equitable fraud - claim that defendants acted together to obtain control of companies and for other ends in equitable fraud against the first plaintiff - whether abuse and fraud on power of attorney - whether alleged scheme was an imposition or deceit and voidable on grounds of public policy.

CRIMINAL LAW - subpoena for witness in custody - witness refused to answer questions previously - whether witness would refuse to answer Crown questions - examination to be conducted on voir dire

GUARANTEE & INDEMNITY - guarantees - where defendants guaranteed trade debts - no question of principle

CRIMINAL LAW - practice and procedure - whether to leave alternative verdict of manslaughter - charge based partly on joint criminal enterprise - whether verdict of manslaughter viable - manslaughter not left as alternative verdict

PRACTICE AND PROCEDURE - judgments and orders - suppression order

ORDERS - discontinuance of remainder of claim - costs - interim suppression orders - necessity to reconsider - final suppression order.

Procedure - Costs in unsuccessful claim in Probate suit and in family provision proceedings - Whether to depart from the general rule that costs calculated on ordinary basis be paid by unsuccessful Plaintiff - Whether to order costs of Probate suit on indemnity basis - No dispute that unsuccessful Plaintiff should pay costs calculated on ordinary basis of family provision proceedings - Overall justice of the case

CRIMINAL LAW - sentence appeal - indecent assault and aggravated sexual assault - offences committed in home of appellant while victim a guest - sentencing judge considered the location of crime at a 'home' as an aggravating feature of the offence - s 21A(2)(eb) Crimes (Sentencing Procedure) Act considered - entitlement of victim to safety and security - circumstances capable of making offence more serious - no lesser sentence warranted - application for leave to appeal out of time - extension of time refused

CRIMINAL LAW - Crown appeal against sentence - respondent received discount for late plea and assistance - respondent failed to fulfil undertaking with regard to future assistance - quantum of discount attributable to past and future assistance not specified - construing discount for plea of guilty and past assistance - Crown appealed allowed - respondent resentenced

ADMINISTRATIVE LAW - jurisdictional error - Industrial Relations Commission of New South Wales - Full Bench upheld order reinstating injured worker - construction of s 244 of the Workers Compensation Act 1987. ADMINISTRATIVE LAW - jurisdictional error - Industrial Relations Commission - Full Bench upheld order reinstating injured worker - whether error of law of the Full Bench constituted jurisdictional error.

CONTRACT - contract for the sale of land - validity of notice to complete - whether contract required fourteen clear days notice - whether any shorter period permissible CONTRACT - whether purchasers repudiated the contract by failing to complete on an agreed date (where a valid notice to complete had not been served) - purchasers insisting on an erroneous interpretation of the contract as the basis of their refusal to complete on the agreed date - purchasers acting in good faith - failure of vendor to point out the precise error in the purchasers' interpretation

CRIMINAL LAW- Murder- separate offences- stabbing- co-accused- accessory after the fact- sentence

PROCEEDS OF CRIME - no question of principle.

PROCEEDS OF CRIME - no question of principle.

GUARDIANSHIP - application to discharge order restraining guardian from relocating person subject to guardianship order - first defendant subject to guardianship order residing in nursing home - second defendant guardian intended to relocate first defendant from nursing home to former residence - plaintiff obtained order restraining second defendant from so doing - guardian is person primarily responsible for determining where person subject to guardianship order resides - whether serious question to be tried that plaintiff could obtain change of guardianship

Default judgment - restraint of sale - no question of principle.

CONSUMER TRADER AND TENANCY TRIBUNAL - stay of orders - arguable case of failure to afford procedural fairness.

ASSET FREEZING ORDER - no question of principle.

PROCEDURE - miscellaneous procedural matters - amendment to pleadings - plaintiff gives notice of further amendments to the Amended Statement of Claim six weeks before trial - argument concerning amendment takes place six weeks before trial - proceedings relate to events that occurred in 1988 - amendments relate to events that occurred in 1995 and 1998 - whether amendments should be allowed - whether the defendant would suffer prejudice through the making of the amendments - whether plaintiff has explained the lateness of the amendments - whether the plaintiff would be prejudiced were the amendments not to be allowed.

EQUITY - general principles - equitable charges - general right of mortgagee to add costs of enforcement to mortgage debt - application of principle to equitable chargee PROCEDURE - judgments and orders - execution against property - other writs and modes of execution - charging orders - Civil Procedure Act 2005 s 126 - meaning of "equitable interest" - whether the interest of registered proprietor who has given a charge of land under Real Property Act 2900 is an "equitable interest" EQUITY - general principles - equitable charges - judicial sale PROCEDURE - judgments and orders - amending, varying and setting aside - variation of orders for judicial sale pursuant to liberty to apply

COSTS - plaintiff successful against 1 of 2 defendants - whether Bullock or Sanderson order appropriate

PRACTICE AND PROCEDURE- review of costs assessment - allegation of fraud - allegation of error of fact - no reasonable cause of action disclosed - summons dismissed.

APPEAL - Appeal from Local Court - where Magistrate entered judgment in favour of the plaintiff against the defendant based upon the defendant's vicarious liability - where Magistrate found, in determining a related cross-claim, that vicarious liability had not been established - where findings inconsistent APPEAL - Appeal from Local Court - where cross-defendant conceded an indebtedness to cross-claimant on cross-claim - where Magistrate entered a verdict and judgment in favour of the cross - defendant notwithstanding that concession APPEAL - Appeal from Local Court - bailment - where Magistrate concluded that a bailor cannot be liable vicariously for the tortious acts of a bailee PRACTICE AND PROCEDURE - statements made by counsel in the course of hearing as to matters in issue - whether party represented by counsel bound by those statements PRACTICE AND PROCEDURE - Pleadings - whether there was a failure to traverse an allegation of fact - whether failure to traverse gave rise to a deemed admission of the fact pleaded - discretionary power of the court to enter judgment on admissions - necessity for the admissions to be clear and unambiguous - necessity for the discretion to be exercised in favour of entering judgment only in a case which is clear and unanswerable PRACTICE AND PROCEDURE - where issues sought to be raised on hearing of appeal not raised before the court below - whether party should be permitted to raise the issue on hearing of appeal

COSTS - plaintiff mortgagee obtained judgment for possession against defendant company (in liquidation) - occupiers of property filed three successive applications seeking stay of execution of writ of possession - the occupiers were not party to the principal proceedings - stay applications granted on first two occasions - on last occasion stay granted on condition that occupiers pay certain amounts to plaintiff mortgagee and to defendant company - occupiers failed to comply with conditions - plaintiff obtained possession and exercised power of sale - plaintiff deducted costs of stay applications from settlement monies - application by defendant in liquidation to be indemnified by the occupiers against the plaintiff's costs associated with the stay applications brought by the occupiers - whether section 98 of the Civil Procedure Act 2005 provides power for the making of such an order - occupiers brought stay applications as occupiers of the property which coincided with the interests of the defendant - stay orders simply delayed proceedings - stay conditions not complied with - right of plaintiff to recover costs of stay proceedings available under r 42.25 of UCPR as well as pursuant to contractual entitlement under the mortgage - appropriate in all circumstances to make indemnity order in favour of the defendant

COSTS - whether or not costs should be ordered on the usual basis - whether the cost order should reflect the act that the relevant clause of the agreement was ultra vires - whether discovery was unnecessarily extensive - whether the class 3 proceedings were hopeless or the presumption under rule 3.7(3) of the Land and Environment Court Rules 2007(NSW) should be followed - whether the fact that proceedings were erroneously commenced against the joint venturers for the Gingko rates should have a bearing on the costs orders - whether any delay on the part of the Council in preparing the case should preclude an order for interest on costs.

EQUITY- equitable contribution - whether the defendants should pay the plaintiffs contribution on the basis that the plaintiffs and defendants are co-sureties and are equally liable to the bank for the debts of Luxe Studios - whether a covenant not to sue from the bank is effectively a release from liability as a co-surety - whether the plaintiffs have failed to "do equity" and therefore not entitled to equitable contribution - whether there are other co-sureties that are liable

PROCEEDS OF CRIME - no question of principle.

PROCEEDS OF CRIME - no question of principle.

INFANT SETTLEMENT - no question of principle.

HIGH RISK SEX OFFENDER - application for further interim supervision order - statutory conditions satisfied - Crimes (High Risk Offenders) Act 2006, s 10B.