Cases and authorities

PROCEDURE - Uniform Civil Procedure Rules r 13.4 - whether to dismiss, strike out or stay cross claim

Negligence - duty of care in domestic situation - liability of stair designer and builder - stairs inherently dangerous

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) s 440A(2) - Application for the adjournment of winding up application - Relevant factors as to whether application should be adjourned - Whether requirements satisfied.

EQUITY - trusts and trustees - implied trusts - constructive trusts - where co-owner of a property fails to contribute to mortgage repayments and other necessary expenses - that co-owner holds his interest in the property on constructive trust for the co-owner who has made those payments REAL PROPERTY - general principles - incidents of estates and interests in land - joint tenancy and tenants in common - where beneficial to first co-owner that the second co-owner vacate the property - allowance should be made for notional rent that first co-owner would have paid PROCEDURE - judgments and orders - satisfaction and set-off of judgments - where defendant has indicated that he has no money to pay any amounts sought from him - plaintiff entitled to have her judgment debt to the defendant set-off against the costs order in her favour

CRIMINAL LAW - sentence appeal - three offences - most serious robbery inflicting grievous bodily harm when armed with an offensive instrument contrary to s 98 Crimes Act 1900 - female victim struck repeatedly on head with rock and robbed - whether offence properly characterised as "worst case" - relevant principles - whether the sentences imposed for all three offences were manifestly excessive - whether principle of totality observed.

APPEAL - civil - leave to appeal - legal error insufficient where amount in issue below threshold - relevant considerations - whether expense proportionate to amount in issue - Civil Procedure Act 2005 (NSW), ss 58 and 60 APPEAL - civil - leave to appeal - whether threshold value of matter in issue satisfied where damage below threshold but with costs order, independently challenged, amount above threshold - whether each challenge to be assessed independently - discussion of Jensen v Ray [2011] NSWCA 247 - District Court Act 1973 (NSW), s 127; Supreme Court Act 1970 (NSW), s 101 APPEAL - civil - procedure - leave to appeal - circumstances warranting concurrent hearing of application for leave and prospective appeal - time limit for submissions on application for leave only - Uniform Civil Procedure Rules 2005 (NSW), r 51.14 STATUTORY INTERPRETATION - District Court Act 1973 (NSW), s 127(2)(b) - "an appeal from a judgment or order as to costs only" - whether "as to costs only" qualifies "an appeal" or "a judgment or order" WORDS AND PHRASES - "as to costs only"

MORTGAGES - Contract for sale of land - Purchase price payable by instalments - Property subject to mortgage - Mortgagor defaulted on home loan - Mortgagee issued default notice to mortgagor under Real Property Act 1900, s 57(2)(b) - Default judgment entered - Whether overstatement of amount due - Alleged invalidity of s 57(2)(b) notice - Section 57(2)(b) notice valid - Clause in mortgage dispensing with notice requirements - Clause in mortgage effective to dispense with notice requirements under the Act - Real Property Act, s 58A(1) - Appeal dismissed. DEFAULT JUDGMENT - Third party claims sufficient interest to set aside - No basis to set aside default judgment.

EVIDENCE - Evidence on Commission Act 1995 - request from US Court for attendance of witness for examination and production of documents

Application to vacate or adjourn hearing - No evidence to establish that notice of the hearing date given to Defendant - Necessity to have evidence of notice of hearing date given to Defendant

CORPORATIONS - Winding up - Court approval for liquidator's litigation funding arrangement - Ex parte hearing - confidentiality orders.

CORPORATIONS - winding up - Creditor's petition to wind up - Subsequent purported voluntary winding up in ignorance of creditor's petition - Whether leave should be granted nunc pro tunc to voluntarily wind up - Corporations Law s 490

APPEAL - application for summary dismissal - notice of appeal disclosing no arguable ground of appeal - appeal dismissed pursuant to UCPR r 13.14 - powers of a single judge of appeal - no issue of principle

CRIMINAL - Interlocutory proceedings - accused charged with obtaining financial advantage by deception contrary to s 134.1 of the Criminal Code Act 1995 (Cth) -directed verdict application - tax payable on objectively ascertained income - dishonest return claimed not to be capable of giving rise to offence - application refused

TORTS - Negligence - whether duty of care owed by public authority - whether breach of duty - plaintiff performs back flip into river resulting in serious injury - whether injuries resulted from inherent and obvious risk arising out of a dangerous recreational activity - judgment in favour of the defendant.

CONTRACT - objective theory - parties bound by signed contract - only limited exceptions CONTRACT - unilateral mistake induced by fraud, dishonesty or sharp practice - principles and remedies RECTIFICATION - entitlement to rectification when unilateral mistake induced by fraud, dishonesty or sharp practice LANDLORD & TENANT - notice under Section 129 Conveyancing Act - reasonable notice - notice not a "sacramental ritual" - reasonableness of time period RELIEF AGAINST FORFEITURE - breadth of statutory discretion - relevance of breach being monetary or non-monetary breach - acrimonious relationship - lease necessarily requires proximity and frequent mutual dealings - interests of justice

APPREHENDED BIAS - expression of provisional views by trial judge - principles applicable

WILLS, PROBATE AND ADMINISTRATION - mirror wills prepared for and executed by husband and wife - signatures of both duly witnessed - by mistake husband and wife signed will prepared for the other - probate sought of wife's will - whether rectification by omitting signature of husband - whether order should be made for rectification of document signed by deceased - Succession Act 2006, s 27 WILLS, PROBATE AND ADMINISTRATION - document stated testamentary intentions of the deceased but not validly executed - document admitted as an informal testamentary document pursuant to Succession Act 2006, s 8 - no order for rectification

CORPORATIONS- winding up- just and equitable ground- where company not trading but deficiency of assets over liabilities- application for winding up opposed due to substantial costs involved and because costs would be disproportionately borne by the fourth cross defendant being the only major creditor- application stood over to a future date to allow meeting of directors opportunity to discuss possible alternatives. EQUITY- proprietary estoppel- cross claim-cross claimant's father in conversation told son of intention to provide land for each son- where part of land owned by cross claimant's grandfather who survived cross claimant's father- father died leaving entire estate to wife- grandfather died leaving his property to the cross claimant and his siblings in equal shares- where wife attempted to carry out intention of deceased husband that all sons should inherit separate parcel of land- where cross claimant worked on the family properties in the belief that he would be provided certain land- whether entitled to interest in land or equitable compensation in lieu- cross claimant's claim failed because there were no representational promises, no change of position in reliance on encouragement and no established detriment.

MISLEADING AND DECEPTIVE CONDUCT - Australian Securities and Investments Commission Act 2001 (Cth) s 12DA(1) - in relation to financial services where bank officer selling a complex financial product conveys to the customer that the product works in a way significantly more advantageous than the way in which it actually works - RELIEF - Australian Securities and Investments Commission Act 2001 (Cth) ss 12GF(1) and 12GM(7) - matter approached on the footing that damages should be assessed as if an order had been made varying the terms of the parties' agreements to reflect how the bank represented they would actually work

EVIDENCE - s 50 Evidence Act 1995 (NSW) - whether evidence summarising voluminous or complex underlying documents could be adduced as "summaries" pursuant to s 50 - whether a document prepared through a process that involved the exercise of judgment or the application of a calculation is a "summary" - whether document summarising other summary documents is a "summary" - whether a conclusion based on underlying documents is a summary - HELD - document prepared through simple application of arithmetical formula is a "summary" - document prepared involving the exercise of judgment or opinion is not a "summary" - document summarising other summary documents is a "summary" - evidence containing conclusions are not "summaries" but are to be treated as submissions

CRIME - sentence - aggravated armed robbery - whether sentencing judge erred in failing to give adequate consideration to contents of medical reports - whether erred in failing properly to distinguish applicant's role from that of his co-offenders - whether erred in characterising offences as being more serious than the category of offence considered in the Henry guideline judgment.

CORPORATIONS - dishonest use of position as director to gain personal advantage - s 184(2)(a) Corporations Act 2001 - factors relevant to dishonesty - companies alleged to be profitable and solvent - relevance of consent of sole beneficial shareholder and absence of third party disadvantage - payments purportedly for commission and management fees when services to justify such payments not performed CORPORATIONS - accounts - determination of profit - unrealised capital gains - steps necessary before profit distributable as dividends - whether independent valuation necessary - importance of views of accounting profession CRIMINAL LAW - appeal - conviction - whether verdict unreasonable - whether admission of irrelevant but prejudicial material - whether trial proceeded on erroneous assumption as to company's ability to pay dividends - whether failure to direct jury on factors relevant to dishonesty - whether failure to direct jury on appropriate time to consider issue of dishonesty - whether Crown's submission as to financial position of company unfounded CRIMINAL PRACTICE AND PROCEDURE - fresh evidence - principles - witnesses' evidence alleged to be inconsistent with evidence given by them at subsequent trial of co-accused - whether significant possibility of acquittal if evidence had been available at trial

APPEAL - Summons seeking leave to appeal - Notice of intention to appeal served out of time - Extension of time in which to file summons seeking leave to appeal required - No extension sought - Failure of appellant to appear - Written submissions did not demonstrate arguable case for leave - Summons seeking leave to appeal dismissed.

TORTS- Negligence - Appellant slipped and fell on painted strip of pedestrian crossing within school grounds - Whether primary judge erred in concluding that the respondents were not negligent - Whether the respondents reasonably ought to have known that the crossing was unduly slippery on the date of the appellant's fall TORTS - Negligence - Duty of care - Whether respondents breached their respective duties of care in failing to repaint the surface of the pedestrian crossing using a paint which was capable of producing slip resistant results when tested in wet conditions - Whether the legal duty requires precise conformity to a specific standard of slip resistance TORTS- Negligence - ss 5B and 5C Civil Liability Act 2002 - Whether the respondents failed to take reasonable precautions - Whether the risk of harm to a person slipping on the wet surface of the crossing was foreseeable and not insignificant - Whether primary judge was too narrow in the description of the risk of harm that he adopted - Whether it can be established that professional testing should have been undertaken shortly before the accident and, if done, would have demonstrated that the condition of the crossing was such that a reasonable person should have taken steps to decrease its slipperiness TORTS - Negligence - Causation - s 5D Civil Liability Act 2002 - Whether the negligence was a necessary condition to the occurrence of the appellant's injury

CORPORATIONS - Winding up - Payment to director when company insolvent - "Unfair preference" - ss 588FA, 588FC, 588FE, 588FF Corporations Act 2001 (Cth) - Whether payment in respect of secured debt - Effect of agreement to grant director security - Whether equitable charge. STATUTORY INTERPETATION - Words and phrases - Corporations Act 2001 - "Charge".

CONTRACT - extension of charge over contractual rights - where contract required consent of other party - whether consent necessary for charging of rights - legal principles the same as for assignment of contractual rights - held consent necessary. CONTRACT - extension of charge over contractual rights - where extension of charge required consent of other party who refused consent - whether consent unreasonably withheld in the circumstances - relevant legal principles - whether reasonableness to be determined subjectively or objectively - whether party's actual reasons always relevant - whether court should have regard to events that occurred after consent was sought and refused - importance of unreasonable delay in responding to request for consent - where defendants effectively seeking to assign right to litigate and plaintiffs have the benefit of a barring order and undertaking not to institute proceedings outside the jurisdiction - whether possibility of assignee initiating litigation without complying with barring order a relevant consideration - held that consent was not unreasonably withheld. CONTRACT - whether assignee obtains assigned rights "subject to all equities" - meaning of "equities" - whether concept includes barring order and undertaking to the court. EVIDENCE - onus of proof - who bears onus of proving consent was withheld unreasonably - where plaintiff initiated proceedings seeking declaration that extension of charge was invalid - held onus is on the party asserting consent unreasonably withheld. EVIDENCE - hearsay - whether emails and letters discussing reasons for refusing consent inadmissible as hearsay - held admissible.

EQUITY - permanent injunction - order restraining termination of franchise agreement - no question of principle.

PROCEDURE - cross-vesting application - Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) - registered mortgagee of Torens Title land seeks possession - applicant in Family Court proceedings seeks to set aside mortgage - order seeking transfer of proceedings from Supreme Court of New South Wales to Family Court of Australia - whether it is more appropriate that the State proceeding be determined by the Family Court - whether Family Court has accrued jurisdiction to determine the proceeding in the exercise of Federal jurisdiction - whether it is in the interests of justice to transfer the matter - orders for transfer made.

SUCCESSION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, a son of the deceased, to whom Probate of the deceased's Will was granted - No dispute that adequate and proper provision not made in Will of the deceased and that an order in favour of the Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne

[CONTRACT] - Standard form agreement - incorporating defendant's Published Policies into agreement - standard form of Licence of domain names. [INJUNCTION] - Application to restrain defendant, administrator of the .au Domain Name System on the Internet, from deleting domain names registered to the plaintiffs - where agreement provides that no proprietary rights in registered domain names. [WORDS AND PHRASES] - "service" and "activity" in context of registered domain name.

PROCEDURE - costs - plaintiff to bear costs of motions

INDUSTRIAL LAW - industrial safety - statutory duty of manager of correctional centre to protect inmate from exposure to risks - breach of duty - Occupational Health and Safety Act 2000, s 8(2) ADMINISTRATIVE LAW - jurisdictional error - adequacy of charge in court attendance notice - whether sufficiently identified act or omission which constituted offence

CRIMINAL - application for inquiry into sentence - supply of large commercial quantity of prohibited drug - parity.

CONTRACTS- construction and interpretation of contracts- whether clause in Deed of Transfer of Company Shares void for uncertainty- where clause stipulated an "additional" $50,000 be paid to plaintiff- where plaintiff claimed entitled to $50,000 in addition to other monies and defendants claimed plaintiff entitled to fixed amount of $50,000- consideration of surrounding circumstances- clause void for uncertainty. EQUITY- mistake- equitable remedies- rectification- where cross claimants sought rectification of Deed if on its proper construction the plaintiff was entitled to the additional $50,000- no unilateral mistake- common mistake- consideration of subjective intentions and post contractual conduct- defendants entitled to rectification in event clause not found void for uncertainty.

PROCEDURE - cross-vesting application - Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) - order seeking removal of proceedings from Industrial Court of New South Wales to Supreme Court of New South Wales - order seeking transfer of proceedings from Supreme Court of New South Wales to Federal Court of Australia - whether it is more appropriate that the State proceeding be determined by the Federal Court - whether Federal Court has accrued jurisdiction to determine the proceeding in the exercise of Federal jurisdiction - whether it is in the interests of justice to transfer the matter - orders for transfer made.

PROCEDURE - evidence - application to exclude portions of intercepted telephone conversations - whether unfairly prejudicial - whether ambiguous evidence unfairly prejudicial

MOTOR VEHICLE ACCIDENT - Motor Accidents Compensation Act 1999, s 111 - further medical evidence - whether trial judge required to adjourn proceedings for further medical assessment - whether further medical evidence would have materially affected the assessment made by the Claims Assessor

CONTRACT - principal and agent - authority of agent - whether sufficient evidence to find agent had authority to incur liability under contract EVIDENCE - admissibility - hearsay - business records - email purportedly sent by company officer - whether proof of officer's authority to order goods on behalf of company

CRIMINAL- Interlocutory proceedings - admissibility of evidence - tender of document - inference on the balance of probabilities

COSTS - as between plaintiff/cross-defendant and first defendant/cross-claimant, effect of Calderbank offers - whether unreasonable for plaintiff to reject Calderbank offers - whether unreasonable for first defendant to reject offer made to her (and whether that a Calderbank offer) - as between second defendant and remaining parties who should bear liability for its costs - HELD - apportionment between the plaintiff and first defendant as to costs of the second defendant; order apportioning the costs to be borne as between the plaintiff and the first defendant of their respective costs of the proceeding

EQUITY - trusts - trustees - application to court for judicial advice - advice sought on whether trustee would be justified in defending a claim brought under the Charitable Trusts Act 1993 - where defence can be funded without recourse to trust property - where plaintiff in the main proceedings agrees that it is appropriate for the trustee to put on a defence - where Attorney General also regards it as appropriate that trustee put on a defence - where advice of Senior Counsel in respect of the proceedings has been obtained by the applicant - trustee would be justified in defending the main proceedings

APPEAL - civil - grant of leave to appeal - overwhelming weight of authority supports appellant's position in relation to a point of fundamental principle - costs of appeal will exceed the amount in dispute - whether appropriate case for grant of leave to appeal DAMAGES - assessment - whether trial judge should consider all arguments raised despite dismissing a claim - when trial judge should assess damages after finding that no loss was suffered PROCEDURE - civil - abuse of process - application at hearing of appeal that claim should have been dismissed as abuse of process - whether open to defendant below to make application for dismissal of proceedings on appeal - discussion of Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 PROCEDURE - civil - notice of contention - whether leave should be granted to rely on notice of contention filed out of time - novel point raised on appeal - considerations relevant to grant or refusal of leave TORTS - defamation - presumption of harm arising from proof of publication - whether presumption exists in Australian law - discussion of Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946; Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643

TORT - negligence - risk of harm - whether defendant knew or ought reasonably to have known of the risk - whether defendant should have warned plaintiff as to the known risk TORT - negligence - motor vehicle accident - whether fault of owner or driver of vehicle was "in the use or operation of the vehicle" - inexperienced forklift driver failed to spread the tines of the forklift - discussion of Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529

PROCEDURE - direction by court that audio cassette tape be jointly examined by experts - tape said to contain evidence of police officer soliciting bribe - audio cassette tape destroyed by plaintiff - abuse of process - power to strike out or limit plaintiff's claim - whether proportionate response - Civil Procedure Act 2005 (NSW), sections 56-58 - PROCEDURE - Application to adduce additional evidence - reliance upon incompetence of counsel at trial - application to adduce additional evidence refused - APPEAL - discretionary orders - re-exercise of discretion.

CRIMINAL- Interlocutory proceedings- admissibility of evidence - tender of document - incompleteness of form

CORPORATIONS - External administration - Administration under deed of company arrangement - Validity of appointment of administrator - Whether appointment invalid by reason of lack of number of directors as required by articles of association - Whether appointment invalid by reason of lack of quorum for directors meeting - Indoor management rule - Whether appointment valid by reason of statutory assumptions under ss 128-129 of Corporations Act 2001 (Cth) - Whether appointment should be validated under s 447A and s 1322 of Corporations Act 2001 (Cth) - Factors relevant to validation application brought when administration largely complete - Relevance of delay on part of party challenging validity of administrator's appointment - Whether exposure to statutory regime for assessment of remuneration under s 449E of Corporations Act 2001 (Cth) amounts to substantial injustice.

[CONTRACT] - where no contemporaneous contractual documentation evidencing any agreement between parent and subsidiary for indemnity for loss suffered by parent by reason of breach of franchisee of subsidiary - various claims to fill the "gap" in the documentation including oral agreement and written agreement post-dating the relevant events. [AGENCY] - whether agency should be implied by reason of corporate structure to operate the business. [TRUSTS] - whether parent and subsidiary held benefits of agreements on trust for each other.

Representative Proceedings - Civil Procedure Act 2005 (NSW) s 173 - Settlement - Court Approval