Cases and authorities

CORPORATIONS - Liquidators examination - Application to vacate dates fixed for examination - Whether advances interests of creditors - Whether prejudice to liquidators - Whether prejudice to public interest.

CORPORATIONS - voluntary administration - administrator - decision by administrator - proof of debt - appeal to court from administrator's decision ASSIGNMENT - chose in action - whether absolute

EQUITY - equitable charges and liens - extension of caveat - applicant asserts an entitlement to claim an equitable charge and/or equitable mortgage said to arise by virtue of a letter of engagement - whether there is a serious question to be tried - whether the balance of convenience favours the extension of caveat.

PROCEDURE - Supreme Court procedure - New South Wales - pleadings - struck out - statement of claim takes form of narrative pleading - of different claims for relief not clearly articulated - whether statement of claim should be struck out.

JUDICIAL REVIEW - nature of judicial review - Commonwealth Constitution, s 80 - no right to trial by jury in the Local Court - no right to trial by jury in the Supreme Court - Commonwealth Constitution is not a law of the Commonwealth - Commonwealth Constitution, s 72 - magistrates are validly appointed under the Local Court Act - Governor of New South Wales is validly appointed

ADMINISTRATIVE LAW - Independent Commission Against Corruption - finding of corrupt conduct - Independent Commission Against Corruption Act 1988 s 9(1)(a) - "could constitute or involve...a criminal offence" - whether necessary for Commission to be satisfied of facts to the criminal standard - whether necessary for Commission to make findings based only upon evidence admissible at a criminal trial

ADMINISTRATIVE LAW - application for leave to appeal pursuant to s 55 Victims Support and Rehabilitation Act - whether tribunal erred at law - whether unreasonable on the facts to make order of restitution against plaintiff

PROCEDURE - civil - application to set aside default judgment for possession - whether delay and prejudice to plaintiff - whether applicant has arguable defence

CIVIL - proceedings by unrepresented applicant - anti-discrimination - Limitation periods - summary proceedings in Local Court

PRACTICE AND PROCEDURE - no question of principle

PRACTICE AND PROCEDURE - no question of principle

APPEAL - civil - application for leave to appeal - whether errors in judgment below material - where wrong provision applied, need to consider prospects of different outcome under correct provision TORT - claim for damages for injury arising in course of employment - whether claim extinguished by statute

PROPERTY - parties to domestic relationship - adjustment of interests - just and equitable - whether one party contributed to maintenance of property purchased by other party prior to relationship - whether indirect financial contribution through unremunerated work in business of owner of property - whether revenue from business used to pay mortgage

PROCEDURE - Cross-vesting - proceedings commenced in NSW Dust Diseases Tribunal - application to transfer to Western Australia - natural forum - interests of justice - whether certain provisions of the Dust Diseases Tribunal Act are substantive or procedural - transfer refused.

PROCEDURE - Judgments and Orders - Amendment - slip rule - clerical error - Where minute of consent order did not accurately reflect intention of parties or order as pronounced PROCEDURE - Judgments and Orders -UCPR r 1.12 - whether paragraph in a minute of order was an order of the court or recorded as inter partes agreement CONTRACTS - Penalties - whether consent judgment debt can constitute a penalty - where the judgment debt exceeded maximum amount recoverable - consent judgment creates an immediate enforceable present debt - no scope for the application of the doctrine of penalties PROCEDURE - Judgments and Orders - Whether court has jurisdiction to decline to enforce judgment on equitable grounds PROCEDURE - Judgments and Orders - where consent orders create obligations on both parties - Whether party seeking to enforce judgment was in default of its obligations

MAGISTRATES - Appeals from and control over magistrates - earlier proceedings settled - deed required agreement in writing if further restoration work on vintage motor vehicle, including storage, to be carried out - further work carried out by oral agreement - no agreement in writing

PROCEDURE - judgments and orders - amending, varying and setting aside - ex parte injunction granted to restrain defendant from entering upon land in dispute with ancillary orders providing for service - defendant entered upon that land in dispute - defendant did not appear before the court, injunction extended with ancillary orders providing for service - defendant appeared before the court and sought that injunction be set aside - injunction confirmed - ancillary orders providing for service set aside.

TRUSTS AND TRUSTEES - judicial advice - Application by Plaintiff trustees for judicial advice pursuant to s 63 of the Trustee Act 1925 - Administration of trust property - Whether the trustees would be justified in exercising their discretion in a particular manner with the effect that a benefit is given to second Plaintiff trustee - HELD - judicial advice given

PROCEDURE - transfer of proceedings from Local Court to Supreme Court - where applicant alleges fraud. COURTS AND JUDGES - judges - disqualification for bias - tests for reasonable apprehension of bias - no prejudgment demonstrated - application refused.

JURISDICTION, PRACTICE AND PROCEDURE - general principles and guidelines - UCPR rules - right of audience of unqualified person who is a director to represent company - Exercise of discretion to dispense with rules - principles relevant to the exercise of discretion

CRIMINAL LAW - sentence appeal - relevance of capacity to deal with some charges summarily - use of guideline judgment - totality - manifest excess - by majority, no manifest excess and sentence within discretion

APPEAL - criminal law - sexual offences - aggravated sexual intercourse of a child under 10 - intercourse constituted by insertion of hose into victim's vagina - victim aged 3 years at the time - where no evidence of offence being motivated by sexual gratification and no evidence of grooming - errors on the part of the sentencing judge in failing to have regard to such matters assessing objective seriousness of offence - further error on the part of the sentencing judge in concluding that the offending was aggravated because it occurred in the victim's home - sentence manifestly excessive

PROCEDURE - civil - costs - respondent accepted appeal to be allowed on new ground - grounds raised by appellant rejected - whether costs should follow the event

EVIDENCE - admissibility - hearsay evidence - exceptions - admissions made with authority - furtherance of common purpose - common purpose to hold protest was sufficiently demonstrated EVIDENCE - admissibility - risk of unfair prejudice - statements made through allegedly incompetent interpreter - insufficient evidence that interpreter was not accurately translating what she conveyed - evidence admissible

EVIDENCE - admissibility - identification evidence - application to exclude evidence - confusion between two different accused - insufficient to render evidence inadmissible

CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - evidence of incidents in disturbance beyond when accuseds' involvement can be established - relevance of evidence questionable - evidence unfairly prejudicial

EVIDENCE - affidavits and statutory declarations - affidavits - whether late service of affidavit creates unfair prejudice EVIDENCE - affidavits and statutory declarations - affidavits - whether statements contained in affidavit constitute hearsay EVIDENCE - affidavits and statutory declarations - affidavits - whether partial redaction of exhibit to affidavit renders it inadmissible

CORPORATIONS - Company under administration - Application for extension of statutory period in which to provide notices to lessors under s 443B(3) Corporations Act 2001 (Cth) - Whether prejudice to lessors - Whether prejudice to companies ability to achieve a sale of their business as ongoing concern CORPORATIONS - Meetings - Creditors' meetings - Company under administration - Manner of giving notice of meeting - Whether cost of mailing notices is significant burden

CORPORATIONS - Debts - Statutory demand - Whether reliance on s 459H(1)(a) Corporations Act 2001 (Cth) to set aside statutory demand - Whether genuine dispute.

EVIDENCE - facts excluded from proof - on grounds of privilege - self-incrimination - disclosure of the redacted information would not materially assist plaintiff but may, by virtue of s 128A(8) of the Evidence Act 1995 (NSW), impede, and not materially assist, the conduct of criminal or other proceedings - whether an order under s 128A(6) of the Evidence Act 1995 (NSW) should be granted - whether a certificate under s 128A(7) of the Evidence Act 1995 (NSW) should be granted.

Contracts - sale of goods - failure to pay - guarantee - cross claim - Sale of Goods Act 1923 - sale by description - Trade Practices Act 1997 - misleading or deceptive conduct - misrepresentation

CRIMINAL LAW - application for leave to appeal against sentence - two counts of aggravated sexual assault - break and enter the home of elderly victim in circumstances of special aggravation - no fact finding error - no undue weight on objective gravity of offence - individual sentences not manifestly excessive - total sentence not manifestly excessive

CRIMINAL LAW - Crown sentence appeal - s 53A Crimes (Sentencing Procedure) Act - aggregate sentence did not reflect principle of cumulation - individual indicative sentences not manifestly inadequate - aggregate sentence did not reflect totality of criminality - aggregate sentence manifestly inadequate - discretion not to intervene not exercised - lesser sentence than at first instance due to actual distress and anxiety

CORPORATIONS - duties and liabilities of officers of corporation - fiduciary obligations - date at which defaulting fiduciary kept company out of moneys - date at which judgment should be converted into Australian dollars JUDGMENTS - whether judgments can be set off against each other JUDGMENTS - whether valuation should bear interest COSTS - no order as to costs where compulsory acquisition order consented to without oppression being established

APPEAL - Local Court - civil claim - Plaintiff fails to appear at hearing - Magistrate gives judgment for Defendant - Plaintiff applies to set aside judgment - Magistrate dismisses application - Parts 36.15 and 36.16 Uniform Civil Procedure Rules 2005 - application for leave to appeal to Supreme Court under s.40 Local Court Act 2007 - no arguable ground of appeal - approach of Court to unrepresented litigant - leave to appeal refused

PRACTICE AND PROCEDURE - Late Application to Vacate hearing date - No satisfactory explanation offered - Dictates of justice against application - Application refused - No point of principle.

REAL PROPERTY - fixtures to land - intention of parties - whether tend to improvement of the premises REAL PROPERTY - fixtures to land - degree of annexation - whether medical equipment is a fixture REAL PROPERTY - fixtures to land - removal - whether removal would cause substantial damage to premises - whether removal would destroy or damage the equipment - whether equipment is a tenant's fixture.

CRIMINAL LAW - sentencing - murder - domestic homicide - break down of marriage - husband kills wife - conviction following trial - provocation rejected by jury - whether provoked by deceased for purposes of mitigation on sentence - whether loss of self control - relevance of expert sociological evidence on "honour killing" in Macedonian culture - whether intention to kill - offender aged sixty years - mitigating factors - no prior convictions - prior good character - unlikely to re-offend - rehabilitation - whether remorseful - pre-trial disclosures of defence - general deterrence, retribution and denunciation.

CRIMINAL LAW - conviction appeal - sexual intercourse without consent (three counts) - whether verdicts of guilty unreasonable or cannot be supported by the evidence - whether miscarriage of justice resulted from absence at trial of new (not fresh) evidence - whether miscarriage of justice as a result of comments made in Crown closing address - all grounds fail - appeal dismissed

CRIMINAL LAW - appeal against sentence - drugs offences - whether discount for assistance should be increased - whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - parity principle

CRIMINAL LAW - sentence - violent attack by group of young men on another group of young men - Applicant sentenced first in time in District Court - Applicant sentenced for aggravated robbery in company inflicting grievous bodily harm in company - co-offenders sentenced later in District Court, Local Court and Children's Court - co-offenders sentenced for recklessly causing grievous bodily harm in company - all offenders participants in joint criminal enterprise - Judge and Magistrates who sentenced co-offenders not informed of sentences imposed upon Applicant - remarks on sentence of Applicant's sentencing Judge not supplied to later sentencing Judge and Magistrates - whether Applicant has legitimate sense of grievance - principle of parity or proportionality of sentences - strong desirability that co-offenders be sentenced by same Judge -necessity for remarks on sentence to be provided if related offender to be sentenced by different Judge or Magistrate - duty of Crown to ensure that remarks on sentence provided to different Judge or Magistrate - objective foundation demonstrated for Applicant's sense of grievance - very marked discrepancy between sentences even allowing for different charges and different jurisdictions - lesser sentences imposed upon Applicant

CRIME - sentencing - whether sentencing judge erred by adopting an impermissible tiered or mathematical approach - whether sentencing judge erred in the exercise of the discretion as to the degree of accumulation between sentences - whether aggregate sentence manifestly excessive

CRIMINAL LAW - sentencing - money laundering - alleged disparity with sentences imposed on other offenders involved in different aspects of the same undertaking - alleged denial of procedural fairness - whether sentences manifestly excessive - whether principle in De Simoni breached - whether other matters properly taken into account

EQUITY - fiduciary duty - fact-based fiduciary duty - where plaintiff granted to defendant a licence to exploit technology - finding of breach of contract through exploitation contrary to licence agreement - concurrent finding of existence and breach of fiduciary duty of defendant licensee by reason of same acts - no recognised fiduciary relationship - whether the circumstances gave rise to the fiduciary duty alleged - EQUITY - equitable obligation of confidence - licence agreement imposed confidentiality restraints with respect to information - finding of existence and breach of concurrent equitable duty of confidence - question whether equitable duty may co-exist with contractual duty not in contest - whether information said to be protected by equitable duty sufficiently identified - whether confidential quality sufficiently shown - course of trial such as to prevent adequate inquiry into those questions - need for new trial - TRADE AND COMMERCE - misleading or deceptive conduct - representation as to future matter - whether representation contrary to statute - whether order varying contract affected by such representation properly made

CUSTOMS - offences - penalties - smuggling - importation of prohibited imports - evasion of duty - large quantity of tobacco leaf - discretion to discharge on recognisance - application of minimum penalties

CORPORATIONS - Registration time for security interests - Application under Corporations Act 2001 (Cth) s 588FM(1) to fix registration time for security interests registered in the register established under the Personal Property Securities Act 2009 (Cth) - Whether failure to register security interest was accidental or due to inadvertence - Relevance of financial position of company granting security interest.