Cases and authorities

COSTS - no question of principle.

NEGLIGENCE - professional negligence - specialised tax advice - was advice concerning the tax consequences of the proposed business restructure negligent - whether advice that the redemption of preference shares would be tax free was wrong - failure to advert to the definition of "dividend" in s 6(1) of the Income Tax Assessment Act 1936 - failure to warn of the risk of application of s 45B and Part IVA of the ITAA 1936 to proceeds of the redemption- what alternative structures should have been recommended - negligent misstatement. CONTRACT - was there was a contract of retainer - breach of retainer. TRADE AND COMMERCE - trade practices - whether defendant engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth). CAUSATION - whether alleged deficiencies in advice caused liabilities of plaintiff under Deed of Settlement with the Commissioner of Taxation - whether deficiencies must coincide with the precise tax exposures settled under the Deed. DAMAGES - measurement of loss or damage - alternative structures that should have been recommended - tax consequences of those structures - which alternative would the plaintiff most likely have pursued "but for" the negligent advice - difference between plaintiff's financial position under "but for" scenario and in the events that transpired - benefit of pursuing restructure that was recommended - whether benefit from paying dividends earlier rather than later permanent or temporary - measurement of benefit - valuation of deduction in franking credits from franking account - reflective loss - whether deduction from franking account only caused reflective loss to shareholder. DAMAGES - apportionment of loss - concurrent wrongdoers - meaning of damage in context of "apportionable claim" - test for apportionment.

APPEAL FROM LOCAL COURT - claim under contract for provision of building services to Owners Corporation - Magistrate found Secretary did not have the authority to contract - claims in contract and quantum meruit dismissed

SUCCESSION - family provision - provision for adult children - deceased left farming operations to one son - whether orders under the Succession Act 2006 (NSW) s 59 should be made where those orders may affect the continuing viability of farming operations the deceased left to one son to continue

STATUTORY CONSTRUCTION - Section 80D of the Strata Schemes Management Act 1996 (NSW) - meaning and effect STATUTORY CONSTRUCTION - Regulation 15 of the Strata Schemes Management Regulation 2005 (NSW) - meaning and effect STATUTORY CONSTRUCTION - effect of contravention - invalidity

CRIMINAL LAW - application for extension of time to apply for leave to appeal against severity of sentence - attempted contract killing - merits of application considered - parity - application refused

CRIMINAL LAW - appeal on sentence - firearms offences - recklessly causing grievous bodily harm - Crown concession - effect not given to finding of special circumstances - re-sentence

COSTS - interest on costs - s 101(4) Civil Procedure Act 2005 - whether interest on costs must be sought at time of judgment or within time limited by UCPR 36.16 - UCPR 36.4

APPEAL - Appeal as of right because pre-judgment interest included in calculating $100,000 threshold INTEREST - Pre-judgment interest under Civil Procedure Act 2005, s 100 - Applicable rate - Amount required to be repaid but withheld by employer and remitted to Australian Taxation Office - Applicable rate reduced to rate paid by Australian Taxation Office when making refund INTERPRETATION OF INSTRUMENTS - Obligation to repay amount equal to amount received - Whether obligation extended to repayment of amount withheld by employer and remitted to Australian Taxation Office - Meaning of "received"

EQUITY - trusts and trustees - unincorporated association formed to purchase a site for a Macedonian Orthodox Church - association later incorporated under the Associations Incorporation Act 1984 - further property acquired by the association both before and after incorporation - whether the trust applicable to the church site and other property was one to permit it to be used by the association for a church and the promotion of the Macedonian Orthodox Religion - whether trust varied after its creation - whether trust extinguished on incorporation of the association - whether association breached trust by excluding bishop and his appointed priest, by itself appointing priests, by limiting membership of association and by other conduct - whether members of the association's council accessorially liable for the association's breaches of trust in paying emoluments to priests it appointed - whether association should be excused from breaches of trust under s 85 Trustee Act 1925 ASSOCIATIONS AND CLUBS - Associations Incorporation Act 1984 - unincorporated association trustee of property - whether trust extinguished on incorporation of the association

COSTS - at trial appellant succeeded in claim under Property (Relationships) Act 1984 (NSW) and respondent succeeded in cross-claim for assault - appellant succeeded in having assault damages significantly reduced - respondent unsuccessful in cross-appeal - application by respondent for leave to appeal against costs order by primary judge - leave refused - respondent to pay appellant's costs of property (relationships) claim - appellant to pay 20 percent of respondent's cross-claim for assault.

PROCEEDS OF CRIME - agreement reached - consent orders made

PROCEDURE - adjournment application - refused

EVIDENCE - Legal professional privilege - documents produced on subpoena - no issue of principle

CORPORATIONS - External administration - appointment of administrator - resolution to enter administration passed by sole director - instrument of appointment of administrator signed by sole director - sole director not resident in Australia - where constitution required more than one director - whether administrator validly appointed

EQUITY - equitable remedies - injunctions - interlocutory injunction sought to restrain defendants from carrying out auction - where auction to effect compulsory acquisition of shareholder's interests - auction being carried out in accordance with shareholders' agreement - whether seriously arguable case for final relief -whether auction tool of oppression - whether exclusionary conduct prevented plaintiff from being an informed bidder - whether oppression has made it practically impossible for a shareholder to be a purchaser

PRACTICE AND PROCEDURE - Expert evidence - Personal responsibility of experts to Court for compliance with timetable for filing of reports - Possibility of costs orders against experts personally

EVIDENCE - expert evidence - witness offering expert opinion - no adoption of Expert Witness Code - evidence not complying with r 31.27 UCPR - statement rejected

CRIMINAL LAW - procedure - prosecution - s 246 of the Criminal Procedure Act 1986 - offence alleged under s 55(1) of the Road Transport (General) Act 2005 - prima facie case established - loader of goods - orders made

CRIMINAL LAW - procedure - prosecution - s 246 of the Criminal Procedure Act 1986 - offence under s 53(1) of the Road Transport (General) Act 2005 - prima facie case established - consignor of goods - orders made

CRIMINAL LAW - procedure - prosecution - s 246 of the Criminal Procedure Act 1986 - offence alleged under s 56(1) of the Road Transport (General) Act 2005 - prima facie case established - orders made

CRIMINAL LAW - procedure --prosecution - offence alleged under s 56(1) of the Road Transport (General) Act 2005 - s 178 of the Road Transport (General) Act 2005 - s 246 of the Criminal Procedure Act 1986 - prima facie case established - orders made

CRIMINAL LAW - sentence - murder of six year old child by mother - precise time and cause of death unknown - plea of guilty and admission of act causing death - where finding beyond reasonable doubt of infliction of fatal injuries with intention of causing grievous bodily harm - failure to seek medical treatment - middle range of objective seriousness for murder of its type - where offender has history of violent and dysfunctional childhood and intellectual disability - additional offence of improper treatment of body of the deceased - most serious category for such an offence

DAMAGES - medical negligence - operation to repair hernia - negligence resulting in irreparable injuries and disabilities - operation performed in Queensland - damages assessed under Civil Liability Act 2003 (Qld)

MOTOR ACCIDENTS COMPENSATION - unregistered vehicle, claim against nominal defendant - contributory negligence - whether trial judge correctly assessed degree of contributory negligence of each respondent plaintiff - plaintiffs injured while passengers - driver of vehicle unlicensed, inexperienced and intoxicated - plaintiffs knew or ought to have known driver's capacity to drive impaired by alcohol consumption - plaintiffs travelling without seatbelts - trial judge assessed contributory negligence at 35% and 40% - whether assessment within range - Civil Liability Act 2002 (NSW), s 5R TORTS - motor accidents - contributory negligence - trial judge assessed contributory negligence at 35-40% - plaintiffs intoxicated passengers in vehicle driven by person plaintiffs knew to be intoxicated - whether contributory negligence should be assessed at 80% - whether comparison with other cases appropriate - need for restraint in interfering with trial judge's finding of contributory negligence - need for consistency in approach

COSTS - appeal costs - plaintiff successful on all issues as to liability - liability substance of the appeal - one appellant partly successful in reapportioning liability - apportionment small part of argument in appellate court - appropriate costs order DAMAGES - torts - negligence - liability for payment of workers' compensation - unsuccessful appeals against liability - liability reapportioned between three defendants on appeal - recalculation of damages - no point of principle

CORPORATIONS - Statutory demands - application to set aside statutory demand - leave to cross-examine

CORPORATIONS - winding up - application for approval of entry into litigation funding agreement under Corporations Act s 477(2B) - where evidence discloses a strongly arguable case in proposed litigation - where proposed litigation funding agreement provides for funder to receive 50% of any recovery - where Commonwealth is priority creditor - whether agreement in interests of creditors CORPORATIONS - winding up - voidable transactions - application for extension of time during which orders may be sought in relation to voidable transactions - where orders seek short extension of time and identify specific defendants - where proposed defendants do not appear to oppose application.

LOCAL COURT APPEAL - s39 Local Court Act 2007 (NSW) - purchase of motor car - whether case put below was fairly arguable on the pleadings - whether on the facts as found only one conclusion was legally open - whether primary judge committed error of law by failing to appreciate the significance of argument seriously advanced

SUCCESSION - probate and letters of administration - grants of probate and letters of administration - limited, special and conditional grants of probate and administration - administration for litigation purposes ADMINISTRATION ad litem - circumstances in which appointment of administrator ad litem can be made - where no citation of executor - scope of the administration - requirement of administration bond - need for evidence of administrator's independence - grant effective only for the purpose of proceedings within the jurisdiction - proper form of the order ADMINISTRATION ad litem - nature of administrator's duties - whether fiduciary

EVIDENCE - admissibility - police report of motor vehicle accident - whether admissible as a business record - whether charges of negligent driving and failing to provide particulars are criminal proceedings - whether report admissible as prior inconsistent statement

REAL PROPERTY - withdrawal of caveats - balance of convenience - no orders made - no point of principle - matter stood down for further directions.

PROCEDURE - interlocutory issues - suppression orders - public interest - proper administration of justice.

CORPORATIONS - Corporations Act 2001 s 601EE(2) - unregistered managed investment schemes - liquidator seeks approval to make distributions to investors in accordance with a settlement reached

PRACTICE AND PROCEDURE - COSTS - follow the event - defendant successful - raised two grounds one of which unsuccessful - event was not altered - no unreasonable argument point - SUPPRESSION ORDER - jurisdiction available against Commonwealth officer - order refused on merits

CRIMINAL LAW - sentencing - Crown appeal - robbery armed with an offensive weapon - multiple offences - significant further punishment required

CRIMINAL LAW - appeal - conviction - whether jury misdirected by trial judge - whether 'navigate' under s 52B of Crimes Act 1900 includes controlling helm of boat at time of impact CRIMINAL LAW - appeal - sentence - parity - whether error in imposing same sentence as that imposed on co-offender

COSTS - Security for costs - Of appeal - Special circumstances - Withdrawals of funds from account subject to Mareva order - Appellant claimed funds withdrawn to protect respondent - Security ordered PRACTICE - Stay of execution pending appeal - No cause shown to warrant stay

PROCEDURE - civil - application for stay pending application for special leave - whether exceptional circumstances shown PROCEDURE - civil - judgments and orders - where applicant sought order restraining the sale of security properties

CORPORATIONS - statutory demands - where application to set aside statutory demand had been dismissed - where time for compliance with statutory demand had been extended - where extended time for compliance with statutory demand has passed - seeking further extension of time -court unable to extend time for compliance with statutory demand when application filed out of time COSTS - application for personal costs order against director - relevant considerations in making personal costs order against director

CONTRACTS - Joint venture - Taking of accounts to determine net profit share payable - No issue of principle

DEFAMATION - application for interlocutory injunction - no point of principle.

EVIDENCE LAW - application for a warning pursuant to s 165 of Evidence Act - admissions of the accused captured on covert listening device - whether evidence "may be unreliable" due to delirium - whether there are good reasons not to give warning - whether courts have special experience with admissions - no special experience with regard to delirium - application refused

BANKRUPTCY - plaintiff bankrupt at time of publication of defamatory articles by defendants and at time of commencement of proceedings - whether plaintiff had standing to bring proceedings including claim for special damages - whether right to prosecute action vested in trustee in bankruptcy PRACTICE AND PROCEDURE - issue of plaintiff's standing to bring proceedings not pleaded in defence - application brought after conclusion of jury trial and hearing as to damages for leave to re-open proceedings to submit plaintiff had no standing - need to amend defence - factors relevant to exercise of discretion to grant leave to re-open case DEFAMATION - damages - approach to assessment where defendants successful in establishing truth of some of plaintiff's imputations and contextual imputations - claim for economic loss - whether caused by publication of matter complained of - aggravated damages

LESSOR & LESSEE - lease of premises used for conduct of a nightclub - re-entry by lessor following breach - where lessee's fixtures, chattels and equipment remained upon premises following re-entry - whether lessor failed to give lessee reasonable opportunity to remove goods - whether lessor converted lessee's goods

CONTEMPT OF COURT - defendant guilty of deliberate and intentional contempt of court -appropriate penalty - lack of apology - no evidence tendered -general and specific deterrence - punishment for offence to administration of justice - suspended term of imprisonment

COSTS - respondent succeeded against the three appellants at trial - appellants succeeded in having damages reduced on appeal - orders as to costs of trial and of appeal - no question of principle

PROCEDURE - various matters in consequence of determination of appeal - costs - where offers of compromise were made in the course of the proceedings at first instance - whether the outcome on appeal warrants variation of the costs order at first instance on Calderbank principles - two money judgments given at first instance with order that they be set off - operation of s 100(4) of the Civil Procedure Act in those circumstances - meaning of "the amount for which judgment is given" - claim on appeal for interests on costs at first instance - such claim does not arise in consequence of decision on appeal and is unsupportable - how costs of appeal should be borne

PRACTICE AND PROCEDURE - change of counsel due to illness - adjournment sought - illness does not account for failure to adduce evidence - plaintiff had adequate opportunity to prepare and to present his case - time granted to file submissions in response

EVIDENCE - application for advanced ruling pursuant to s 192A of Evidence Act - further expert evidence sought to be relied upon - whether applicant can show real or substantial prejudice - interests of justice require all issues to be determined at trial - no prejudice in reliance on additional expert evidence - no general point of principle