Cases and authorities

TAXATION - payroll tax - grouping provisions - exercise of power to exclude businesses from group - company providing secretarial, accounting, sales and marketing services to another business - whether employees of service provider performed solely or mainly in connection with the other business - whether agreement in relation to services one in respect of employment or performance of duties by service provider's employees - whether businesses carried on "substantially independently" of each other - Pay-roll Tax Act 1971

Orders sought for judicial sale and consequential relief

PRACTICE AND PROCEDURE - Strike out applications - Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 - Power of court to dismiss proceedings or claims and when such power may be exercised. CONTRACTS - Privity - Qualification to privity rule that a party to a contract may hold, on trust for a third party, the benefit of a contractual promise to confer a benefit on that third party - Whether evidence suggests case based trust of promise has prospects of success.

CORPORATIONS - Winding up - Remuneration of liquidator - Whether liquidator has established entitlement to remuneration - Whether costs incurred for the purpose of administering the winding up.

PRACTICE AND PROCEDURE - Orders - Agreed orders to give effect to judgment.

CONTRACT - termination of contract - whether party entitled to terminate contract - whether notice of breach validly served - meaning of "material breach" of contract - whether party can rely on breach to which it contributed - whether other party entitled to terminate contract for repudiation. CONTRACT - damages - damages according to the principles stated in Amman Aviation - where wronged party entitled to expenditure reasonably incurred and profit. DEBT - difference between recovery of debt and damages for breach of contract - whether interest recoverable on principal sum. RESTITUTION - obligation to make restitution for total failure of consideration - general principles - meaning of "consideration" - does not include benefit of a contractual promise not yet performed - whether interest recoverable on amount subject to restitution.

PROCEDURE - Court of Appeal - notice of contention filed by respondent - appellants seek order striking out notice of contention - whether single Judge of Appeal may make such order (doubted) - respondent in any event entitled to rely on any ground subject to considerations of fairness - no relevant unfairness shown - application dismissed

INDUSTRIAL LAW - Declaratory jurisdiction of Industrial Relations Court - Declaration of contractual right to voluntary redundancy payment - whether misinterpretation of contract - contractual principles - anticipatory breach - remedies. INDUSTRIAL LAW - Declaratory jurisdiction of Industrial Relations Court - Declaration of contractual right to voluntary redundancy payment - misinterpretation of contract - whether jurisdictional error.

PROCEDURE - Defamation proceedings - Destruction of mobile phones prior to commencement of proceedings - Admitted facts before primary judge disclosed evidence material to pleaded imputations had been destroyed - Whether admitted facts supported the inference that appellant intended to pervert the course of justice - Whether primary judge erred in striking out appellant's statement of claim as an abuse of process - Uniform Civil Procedure Rules, r 13.4(1)(c) DEFAMATION - Destruction of evidence prior to commencement of proceedings - Claim for aggravated damages - No defence filed - Notice to strike out claim - Whether truth of imputations in issue on claim

PROCEDURE - Judgments and orders -issues as to form of orders to restrain nuisance caused by tree roots.

Winding up - creditor's statutory demand - s 459G - order varying creditor's statutory demand - whether genuine dispute exists - whether offsetting claims exist

PRACTICE AND PROCEDURE - application for payment of moneys presently held in court - whether plaintiffs are beneficial owners of moneys paid into court - fund represents funds held on trust arranged to be invested offshore by plaintiffs through defendants - at all material times instructions in relation to investments given to the defendants by the plaintiffs - moneys restored by being paid into court - held plaintiffs as beneficial owners of moneys PRACTICE AND PROCEDURE - application for payment of moneys presently held in court - whether orders for payment of funds should be conditional on any objection by the Commissioner of Taxation - voluntarily disclosure statement submitted by plaintiffs to Australian taxation Office

[PROCEDURE] - affidavits - application to read affidavit filed after party's case on liability concluded - whether plaintiffs should have leave to read an affidavit - whether interests of justice favour application for leave to be granted - no question of principle.

APPEAL FROM LOCAL COURT - plaintiffs successful at Local Court - appeal against decision that parties pay their own costs -Calderbank offer by plaintiffs - whether plaintiffs satisfied court that costs discretion should have been exercised in their favour - leave to appeal refused

[LIQUIDATORS] - Application to remove special purpose liquidator under s 503 of the Corporations Act 2001 (Cth)

CORPORATIONS - company title residential unit building - major redevelopment undertaken without the consent of two shareholders - whether class rights varied - whether redevelopment materially altered characteristics of building and unit - whether Company validly amended articles of association embodying class rights - whether breach of contract contained in articles of association - whether unequal treatment of respondents in respect of levy constituted oppression - assessment of damages for breach of contract and oppression - whether loss of chance - appropriateness of discounts PROPERTY LAW - company title residential unit building - class rights embodied in articles of association - whether major redevelopment could be undertaken without consent of two shareholders entitled to occupy one unit

CONTEMPT OF COURT - civil contempt - failure to comply with order of the Court to pay costs - whether failure to make payment deliberate or wilful - failure to make payment not so described if defendant unable to pay - no evidence that defendant has moneys with which to pay the judgment debt - held failure to comply with order within time not deliberate or wilful

[COMMERCIAL ARBITRATION] - contracts - whether contracts made between the plaintiff and the first defendant constitute a valid arbitration agreement for the purposes of s 7 of the Commercial Arbitration Act 2010 (NSW) - whether contract ancillary to the principal contracts governed the dispute resolution process. [ESTOPPEL] - estoppel in pais - convention; estoppel by - whether sufficient detriment that parties are estopped from denying their contractual relationship is governed by a dispute resolution clause.

FAMILY LAW - domestic relationships other than marriage - issue as to length of relationship - five or six years - just and equitable division of parties' joint property under Property (Relationships) Act 1984, s 20 - extent of financial and non financial and welfare contributions to be recognised under Property (Relationships) Act, s 20(1)(a) and (b) - plaintiff claims adjustment of property interests - whether an adjusting order should be made, and if so what the quantum of such adjustment should be.

PRACTICE AND PROCEDURE - application for payment out of moneys presently held in Court - fund represents surplus proceeds after mortgagee sale of property then jointly owned by applicants/cross-respondents - applicants have established a prima facie entitlement to the fund - whether established that the respondent does not have an interest in the fund - HELD - not satisfied on evidence before the Court that the applicants have established that the respondent has no valid claim PRACTICE AND PROCEDURE - cross-application by respondent that moneys remain in Court subject to determination of District Court proceedings against the applicants/cross-respondents - seeking freezing order or an injunction in protection of their claimed proprietary interest in the funds - test for freezing order looks to whether reasonable apprehension that fund will be dissipated in frustration of the Court process - distinction between application for injunction in aid of a proprietary right - OBITER - no basis established for freezing order - had there been an order for payment out of any of the funds, injunction to protect interest in the fund pending final hearing of claim by Nadalan Enterprises would have been granted

CORPORATIONS - Uncommercial transactions - Corporations Act 2001 (Cth) s 588FB - Whether entry into deeds of agreement was an uncommercial transaction - Insolvency - Corporations Act 2001 (Cth) s 588FC - Whether entry into deeds of agreement was an insolvent transaction - Voidable transactions - Whether entry into deeds of agreement was a voidable transaction - Whether First Plaintiff should be released from the transaction.

COSTS - Indemnity costs - Application for indemnity costs in respect of order for production and argument as to legal professional privilege - Whether costs should follow the event in circumstances where there has been no adjudication on the merits.

CORPORATIONS - Corporations Act 2001 (Cth) s 233(1)(d) - Oppression - Nature of oppression - Whether offer to acquire shares at minority discount gives rise to unfairness - Winding up - Just and equitable ground - Whether quasi-partnership.

APPEAL FROM LOCAL COURT - whether there was actual or ostensible authority for a party to act on behalf of the plaintiff - whether the correct issue was addressed in relation to a written agreement - notice of contention for allowing leave to reopen the case

Common law - professional negligence - barrister - service of originating process under UCPR 10.9 - service not valid.

CRIMINAL LAW - procedure and other rulings - request to examine witnesses in relation to an issue of possible jury irregularity during the trial process - request denied.

CRIMINAL LAW - appeal - appeal against acquittal - definition of importation - point at which the process of importation has ended - appeal dismissed.

CRIMINAL LAW - appeal - sentence - Crown appeal against sentence - whether identifiably separate periods of imprisonment should have been imposed for counts 1 and 2 - whether sentencing judge failed to properly determine objective seriousness for count 3 - no error demonstrated - appeal dismissed.

INTERLOCUTORY APPLICATION - Application for leave to appeal - Workers Compensation Commission dismissed appeal against consent orders made in proceedings before Commission constituted by an Arbitrator - Workplace Injury Management and Workers Compensation Act 1998, s 354(7A) - whether the Commission constituted by a Presidential member erred in law - whether applicant was denied procedural fairness - no denial of procedural fairness - leave to appeal dismissed

PRACTICE AND PROCEDURE - Application to extend time for filing a Notice of Appeal - whether appeal has reasonable prospects of success - held no - no matter of principle

DEFAMATION - Defamation proceedings commenced in Western Australia - Leave of the court is required to bring further proceedings in this jurisdiction pursuant to Defamation Act 2005, s 23 - Whether an order granting leave can be made retrospectively - Whether s 23 is a procedural provision and non-compliance may be cured retrospectively by an order nunc pro tunc LIMITATION OF ACTIONS - Defamation proceedings not commenced within one year limitation period - Application for an extension of the limitation period under Limitation Act 1969, s 56A - Onus of proof - Whether test under s 56A(2) is wholly objective - Section 56A requires the court to be satisfied it was not reasonable in the circumstances to have commenced proceedings within the limitation period - Not wholly objective test

CORPORATIONS - voluntary winding up - whether liquidator duly appointed - whether special resolution appointing liquidator was properly carried - operation of presumption that writing prepared by ASIC from

[PROCEDURE] - civil - parties - joinder - whether joinder of the fourth defendant should be set aside - whether joinder is vexatious or embarrassing where limitation defence available. [LIMITATION OF ACTIONS] - limitation defence - whether plaintiff's cause of action is statue barred.

TORT - injurious falsehood - no actual damage alleged - whether pleading liable to be struck out - where interlocutory injunction granted at outset of proceedings until further order - where final injunction only relief sought

COSTS - Indemnity costs - Application for indemnity costs - Whether application was hopeless.

LANDLORD AND TENANT - Retail and commercial tenancies - retail lease - joint tenancy - transfer of lease - whether assignment of lease - consent to assignment from one joint tenant to the other - whether consent can be withheld

CIVIL LAW - criminal assets recovery - application by New South Wales Crime Commission for examination of defendant and provision of verified statement of property - defendant facing serious criminal charges - whether examination order would create real risk of interference with administration of justice - risk of interference to be assessed in statutory context - application granted

APPEAL - application for leave to appeal - standing - order for possession obtained by respondent secured creditor - applicant for leave to appeal an undischarged bankrupt - lack of standing in applicant

APPEAL - civil - application for stay pending appeal - whether appeal arguable - whether appeal arguable if further evidence adduced APPEAL - civil - application to review a decision of a single Judge of Appeal - whether submissions made for the first time on review application would have led to different result before single judge - Supreme Court Act 1970 (NSW), s 46(4); Civil Procedure Act 2005 (NSW), s 56

TORT - damages appeal - principles applicable to challenge to assessment of non-economic loss - adequacy of reasons for economic loss findings - difficulties created by a paucity of evidence as to economic loss - adequacy of buffer for future domestic assistance.

Plaintiff seeks the appointment of trustees for the sale of a property - It also seeks orders for vacant possession of the Property to be given to the trustees for sale and for the application of the proceeds of sale - Defendant named in the Summons is not a beneficiary named in the deceased's Will - As far as the Plaintiff is aware, the Defendant, only, remains in occupation of the Property - The Defendant is a registered proprietor, with the deceased, of the Property, as tenants in common in equal shares - No appearance, by, or on behalf of, the Defendant

[DAMAGES] - interest - time from which interest on damages should run - whether interest should run from the date at which the loss is assessed - Practice Note SC Gen 16 - rate of interest allowed - whether court should adopt calculation of interest propounded by the plaintiff. [COSTS] - interest on costs - formula for interest on costs that have been paid - Lahood v Lahood [2006] NSWSC 126 - whether insured plaintiff should gave costs - compensatory principle - subrogation - whether interest should be allowed.

CRIMINAL LAW - sentence - accessory after the fact to manslaughter - disposal of the knife used in the killing - accessory the father of the principal offender

CRIMINAL LAW - manslaughter - plea of guilty - spontaneous attack - mental illness

PROCEDURE - costs - application for gross sum costs order - whether abuse of process

Consent Judgments - setting aside - allegedly inadequate discovery in earlier proceedings - representations allegedly thereby made - duty of care - implied term - estoppel by deed

Procedure - separate question

FAMILY LAW & CHILD WELFARE - adoptions - consent dispense order -- application for adoption made by foster parents of the child - birth parents notified of proposed adoption and that consent dispense order will be sought - such order opposed by mother - no notice of intention to oppose making of order filed by mother - notice of application for consent dispense order served on birth mother in Queensland, but not in compliance with Service and Execution of Process Act 1992 (Cth) - held effective compliance with s 72(1) of the Adoption Act 2000 (NSW) - whether foster parents were authorised carers of child within meaning of s67(1)(d) of Adoption Act - consent dispense order and adoption order made

TRUSTS - sole proprietor - resulting trust - beneficiary bankrupt at the time - joint tenants or tenants in common - payments for benefit deceased estate - occupation fee

CRIMINAL LAW - sentence - importing marketable quantity of border-controlled drug - duress - drug debt - threats to offender's family - reliability