Cases and authorities

[CORPORATIONS] - whether the transfer of shares of the corporation in two other corporations by directors to wife and daughter respectively amounted to oppression against the minority shareholders - whether notice was given - whether consent or acquiescence - whether shares transferred at undervalue. [DIRECTORS] - Obligations in circumstances where transfer of corporation's assets are to be transferred to a family member - whether consent obtained - whether breach of statutory duties and breach of fiduciary duties. [KNOWING RECEIPT] - where wife/daughter to whom shares transferred aware of circumstances which would indicate the facts to an honest and reasonable person - where admission that transfer was to avoid litigation and/or appointment of provisional liquidator. [CONVEYANCING] - Conveyancing Act 1919 (NSW) - s 37A - whether alienation of shares to delay hinder or defraud creditors - where admissions that transfer was made to avoid the appointment of a provisional liquidator. [EVIDENCE] - where plaintiffs did not give evidence - "rule" in Jones v Dunkel - whether necessity to give evidence to prove oppression under s 232 of the Corporations Act 2001 (Cth) - and/or to prove prejudice under s 37A of the Conveyancing Act 1919 (NSW)

VOLUNTARY ASSOCIATION - justiciability - contract of employment - domestic tribunal - procedural review - abuse of process - permanent stay - bias - right against self incrimination - reputation - oppression and unfairness - absolute privilege

Sentencing - offences under s 16 of the Public Health (Tobacco) Act 2008 - prohibit advertising by display of tobacco advertisement - sentencing principles for multiple offences - principle of totality - objective seriousness of offence - close to mid-range offences - penalties imposed.

PROCEDURE - pleadings - leave sought to amend statement of claim - leave granted - reasons - costs reserved

ADMINISTRATIVE LAW - order in the nature of certiorari quashing the decision of a Children's Court magistrate - alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN - care proceedings - whether expert report independently obtained by a party is admissible - whether consent of all persons with parental responsibility necessary - paramountcy of the interests of the children the subject of the proceedings - need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law - appropriate to consider the requirement that Children's Court proceedings be conducted with as little formality and technicality as possible.

REAL PROPERTY – easements – imposition of easement by court – right of carriageway – reasonable necessity for easement over community land – whether easement reasonably necessary for effective use or development of landlocked dominant tenement – whether use of dominant tenement will be inconsistent with the public interest – whether servient owner can be adequately compensated – whether all reasonable attempts made to obtain easement – whether any discretionary factors justify refusing relief

COSTS ASSESSMENT - Misdescription of applicant for costs assessment - costs assessor erred in determining no jurisdiction - misnomer and wrong identity of applicant - Review Panel's determining costs assessor's determination also wrong in law, determination of assessor and review panel set aside - application under s 178 Legal Profession Act 2004 - order made for itemised bills of costs in respect of the subject of the costs assessment application.

Criminal law - 5F application - ability of Crown to file an ex officio indictment after leave to elect was refused in the Local Court - whether filing of ex officio indictment constituted an abuse of process - appeal dismissed.

CRIMINAL LAW - appeal - conviction - incompetence of counsel - failure of counsel to enquire about evidence of a co-accused - admission of irrelevant evidence - whether evidence that appellant was under surveillance prior to the commission of the offence was admissible - fresh evidence - whether interruption of cross-examination by the trial judge resulted in a mistrial

CRIMINAL LAW - appeal - conviction - directions on identification evidence - directions on evidence of an accomplice - whether directions must be in the precise terms of the bench book - whether a miscarriage of justice was occasioned by all the circumstances - whether leave to appeal out of time should be granted - leave to appeal out of time denied

CONTRACTS - performance - general principles - payment placed in post before due date for payment - posted payment arriving after due date for payment - whether "postal rule" requires that payment is made on posting the payment - "postal rule" not a legal principle of general application - passing of risk or making of payment by posting payment depends on terms of contract and surrounding circumstances - postal acceptance rule not wide enough to encompass "postal rule" in this sense - circumstances of agreement and communications regarding individual payments did not imply that posting a cheque was only form of making payment, nor that posting was payment in itself CONTRACTS - construction of terms - loan contract for investment in tea tree plantation business - loan contract provided discounted rate of interest on repayments of principle in consideration for the borrower paying interest one year in advance as a lump sum - interest payments need only be paid if business producing net income - business not producing net income - consequently no payment of interest made by borrowers beyond second year - actual payment of interest not required, as adequate consideration in exchange of promises to discount rate and pay interest in advance (when it is payable) - discounted rate of interest to apply until termination CONTRACTS - performance - general principles - payment placed in post before due date for payment - posted payment arriving at postal box of creditor before due date for payment - endorse bank cheque crossed "Not Negotiable" - creditor's bank unwilling to accept cheque without authorisation from payee of cheque - authorisation sent and cheque banked after due date for payment - whether payment "punctual" - creditor accepted cheque as payment on date of receipt conditional on it being met at presentation and payee completing bank authorisation form - conditions satisfied - payment was punctual CONTRACTS - performance - where indemnity agreement provided that indemnity effective and enforceable if borrower "punctually" paid amounts under related loan agreement - appellants made payments by cheque in post - where cheques posted before due date for payment, but arrived after that date - appellant argued for existence of "postal rule" whereby posting of payment would equate to actual performance of payment obligation - cases distinguished - no general "postal rule" exists CONTRACTS - performance - where contract requires payment to be made "punctually" - whether creditor or debtor bears onus of proving punctuality of payment - Vines v Djordjevitch (1955) 91 CLR 512 considered - debtor obliged to prove enforceability of indemnity if in the form of an exculpation or exclusion - indemnity in this case was in the form of an exclusion - no error by primary judge in assuming debtor bore onus PRACTICE - general principles - test cases - undertakings given to Court at first instance by sundry defendants agreeing to be bound on common questions by findings in test case - test case proceedings heard at first instance, by the New South Wales Court of Appeal and ultimately by the High Court of Australia - certain arguments struck out by primary judge as being precluded by undertakings in relation to test case - whether applicants' undertaking to be bound by findings of test case on common questions precluded the bringing of certain claims - anticipation of significant overlap between issues raised by test case and proceedings below - yet test defendant only defendant who had filed defence or cross claim at time of giving undertakings - failure to have parties agree in advance what common questions would be - appellants argue "postal rule" defence not raised in test case - "common questions" does not preclude defendants from raising a defence on an issue not decided in the test case- appellants bound to the extent that findings of fact in test case could not be disputed - "postal rule" defence concerned not with the time of payment, but what acts count as payment - primary judge struck out defence for incorrect reason - but conclusion of Court of Appeal on "postal rule" mean it was correct to strike the defences out as the particulars disclosed no arguable case PRACTICE - general principles - undertakings to be bound by findings of test case - whether abuse of process to use evidence advanced in failed prospectus liability claim in claim under Contracts Review Act 1988 - primary judge decided litigants were changing form of the proceedings to set up the same case again - primary judge in error - provided appellants observed findings of fact of test case litigation, particulars were being put to a substantially different purpose PRACTICE - general principles - undertakings to be bound by findings of test case - appellants argued that a Mr Lloyd had made certain representations on behalf of the respondents and that the respondents should be estopped from contradicting these representations - findings made in test case about authority of Mr Lloyd to act for respondents - findings should be read in context to refer to authority of Mr Lloyd in relation to particular representations, not in general - appellants not to be precluded from arguing Mr Lloyd had authority to make certain other representations - estoppel argument to be repleaded PRECEDENT - whether a decision of the Full Court of the New South Wales Supreme Court, which has been affirmed in the High Court, for reasons different to those adopted by the Full Court, is binding as a matter of law on the New South Wales Court of Appeal PRECEDENT - general principles - authority of reasons for decision of higher court where that decision was affirmed on other grounds

COSTS - Costs of motion - Whether costs should follow the event

[DISCOVERY] - Motion for return of documents produced allegedly inadvertently - Discovery process involving numerous "reviewers" (including lawyers and law students) of many thousands of documents - Use of electronic data base that provides for categorisation of documents as relevant and/or privileged. [PRIVILEGE] [WAIVER] - Whether documents produced informally and listed in Verified Lists of Documents, disclosed inadvertently or by mistake - Whether listing of documents in non-privileged section of Verified Lists of Documents waived privilege of documents - Where inspection of documents by party [PRACTICE & PROCEDURE] - Practice Note SC Eq 11 Disclosure in the Equity Division - regime for preparation of evidence and confining of ambit of any necessary disclosure additional to documents already in evidence as served.

CRIMINAL LAW - murder trial - retrial of Accused following successful appeal against conviction to Court of Criminal Appeal - judge allocated retrial had been member of Court of Criminal Appeal which allowed appeal and dismissed appeal against conviction by each Accused and other persons in related appeal - judgment of judge in related appeal made findings that evidence of persons proffered as fresh evidence was not credible or plausible - Accused likely to call those persons as witnesses at retrial - application that judge recuse himself at retrial - whether reasonable apprehension of bias by reason of prejudgment - application of principles in context of trial by jury - exceptional circumstances surrounding application - judge recuses himself

CORPORATIONS - Corporations Act 2001 (Cth) s 488(2) - application under s 488(2) for special leave to distribute surplus funds in circumstances where shareholders and contributories consent to distribution and where company has adequate funds to meet any possible further obligations - HELD - surplus funds appropriate to be distributed - operation of orders subject to receipt of notice from Commissioner of Taxation pursuant to s 260-45 of Schedule 1 of the Taxation Administration Act 1953 (Cth) CORPORATIONS - Corporations Act 2001 (Cth) - application under s 477(2B) for retrospective approval of agreement between liquidator and his solicitors - HELD - agreement approved by the Court

CIVIL - procedure - whether application to file further amended statement of claim precluded by judgment of Court of Appeal - procedural fairness - further orders.

[BUILDING AND CONSTRUCTION] - Building and Construction Industry Security of Payment Act 1999 (NSW) - preliminary issue - whether court should leave matter to be disputed before another adjudicator - adjudication determination - meaning of "arrangement" - whether there was an "arrangement" amounting to a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) - whether the definition of "construction contract" requires that an "arrangement" must be legally enforceable - whether the defendant's attempts to press its payment claims against the plaintiff is an abuse of the processes of the Act. [ESTOPPEL] - Issue estoppel - Anshun estoppel whether the defendant is estopped (by way of narrow or Anshun estoppel), by reasons of the determination of the first adjudicator, from pressing its claim under the alleged construction contract. [PROCEDURE] - civil - documents - cross-claim - application for leave to file a cross-claim - whether court should grant declaratory relief in accordance with the cross-claim.

VEXATIOUS LITIGANT - leave granted to institute proceedings - appropriate conditions on grant of leave - costs

COSTS - indemnity costs - Calderbank letter expresses an inclusive of costs offer - whether reasonable for plaintiffs to refuse to accept offer - whether defendant entitled to indemnity costs.

PROCEDURE - pleadings - leave to file amended defence refused - final opportunity sought to plead defence - leave granted for any further amended defence to be filed

DAMAGES - recovered by minor - where damages should be invested - application by mother to establish trust - better net return than will be received from NSW Trustee and Guardian - considerations to justify private trust.

CRIMINAL LAW - sentencing - disparity of sentence with co-offender - whether difference in charges precludes application of equality principle CRIMINAL LAW - sentencing - whether sentence excessive - whether extent of accumulation excessive

CRIMINAL LAW - sentencing - taking into account a circumstance of aggravation which was element of uncharged offence - whether uncharged offence more serious - application of The Queen v De Simoni CRIMINAL LAW - appeal - standard non-parole period - sentencing for a more serious offence

CRIMINAL LAW - prosecution appeal - residual discretion to reject appeal where inadequacy established - relevance of lapse of time since sentencing - relevance of proximity to release - responsibility of Director for delay in presenting relevant material to appeal court - effect of Crimes (Appeal and Review) Act 2001 (NSW), s 68A CRIMINAL LAW - prosecution appeal - sentencing - accumulation - whether sentence should have been partly accumulated on balance of parole in relation to a prior offence - whether increase in overall sentence sufficient to warrant intervention CRIMINAL LAW - prosecution appeal - sentencing - conspiracy to manufacture a prohibited drug (amphetamine) in an amount not less than the large commercial quantity - whether sentence manifestly inadequate CRIMINAL LAW - prosecution appeal - sentencing - offences of possess prohibited pistol contrary to Firearms Act 1996 (NSW), s 7(1) and sell prohibited firearm contrary to Firearms Act, s 51 - transposition of sentences based on comparative seriousness - whether error warrants appellate intervention CRIMINAL LAW - sentencing - assistance to authorities - whether permissible to provide discount for assistance to authorities and consider assistance as a special circumstance for the purposes of Crimes (Sentencing Procedure) Act 1992 (NSW), s 44 CRIMINAL LAW - sentencing - provision of assistance to authorities - whether conditions of incarceration likely to be more onerous - need to demonstrate likelihood - role of Director in relation to the circumstance of incarceration EVIDENCE - sentencing - evidence as to conditions of imprisonment post sentencing - failure of Director to challenge at hearing - tender of evidence without leave after hearing purporting to contradict offender's evidence - propriety of Director's conduct

CRIMINAL LAW - appeal - conviction - assault occasioning actual bodily harm in company - whether evidence of actual bodily harm - definition of 'bodily harm' - whether explanation necessary in judge-alone trial - whether offence committed 'in company' - evidence of common purpose - whether self-defence open on facts CRIMINAL LAW - appeal - sentence - assault occasioning actual bodily harm - whether necessary to identify extent of harm inflicted - whether sentence of imprisonment warranted

PROCEDURE - dismissal for want of provision of security for costs - no question of principle

PRACTICE & PROCEDURE - expedition - UCPR r 51.60 - no question of principle

PRACTICE AND PROCEDURE - security for costs - Corporations Act 2001 (Cth), s 1335 - whether ordering security will stifle appeal - necessity to demonstrate inability of those standing behind company to provide security

ASSOCIATIONS AND CLUBS - incorporated associations - members - parties agree to hold elections for Executive Council of Association - disagreement about where and how election will be held - whether sufficient evidence for Court to order an election.

Conveyancing Act 1919 s 66G, application for appointment of trustees for sale, application by trustee in bankruptcy for appointment of trustees for sale of wife's interest in matrimonial home.

FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - de facto relationship of approximately 15 years - whether it is appropriate to take account of a lottery win in the adjustment process - TORT - assault and battery - cross-claim for assaults by plaintiff - limitation period relating to each assault - some assaults statute barred - whether defendant suffered from a disability - compensatory damages - aggravated and exemplary damages - order made for adjustment

TORTS - negligence - work injury - plaintiff employed by one defendant and hired to another defendant - system of work - whether unsafe - lack of training and instruction - causation - whether all injuries work related - plaintiff assessed at less than 15% whole person impairment - apportionment between employer and entity to whom employees hired.

PRACTICE AND PROCEDURE - application for leave to appeal against interlocutory decision - strike out of applicant's cross claim by primary Judge - cross-claim not properly pleaded - no barrier to filing fresh cross claim - application dismissed

APPEAL - application for leave to appeal - no question of principle

COSTS - offers of compromise - Calderbank offers - no question of principle

PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Arbitration clause - Construction of arbitration clauses. PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Agreement to refer "any dispute under this deed" to arbitration - Construction - Whether claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction a "dispute under this deed" - Relevance of defences invoking deed.

LEAVE TO APPEAL- verdict for the defendant in District Court based on findings of fact adverse to applicant- not established that more than $100,000 at issue- leave to appeal refused- no question of principle.

DAMAGES- Compensation to Relatives Act- single mother of two killed in motor vehicle accident- two sons subsequently resided with their respective fathers- whether the sons had suffered compensable loss- compensable loss is material loss as at the moment of death- entire family situation before and after death compared- additional care provided by a surviving parent after the death may be taken into account to offset the loss but not gratuitous services provided by other family and friends.

BANKRUPTCY- mortgagee's rights- how far permitted to deal with his or her security- rights extend to claim for possession.

CONTRACT - construction - whether primary judge erred in considering post-contractual conduct and subjective intention of parties CONTRACT - construction - incorporated terms - whether terms incorporated in error or contradict express terms in principal agreement CONTRACT - termination - repudiation - date of repudiation on which claim arose DAMAGES - breach of contract - difference between loss of bargain and loss of profit - whether loss caused - whether loss mitigated - onus of showing loss avoided

NEGLIGENCE - Appeal - duty of care - whether an occupier of a building site owes a duty to provide safe means of access to sub-contractors of independent contractors on a public road - relevance of Codes of Practice to finding common law duty of care - Leighton Contractors v Fox - Stevens v Brodribb Sawmilling Co Pty Ltd. NEGLIGENCE - Appeal - breach of duty of care - discharge of a duty of care by retaining a competent independent contractor - meaning of "access" in clause 73(2) Construction Safety Regulations 1950 - how breach of a regulation bears on breach of a duty of care. NEGLIGENCE - Appeal - damages - method of assessing lost earnings.

PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Arbitration clause - Construction of arbitration clauses. PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Agreement to refer "any dispute under this deed" to arbitration - Construction - Whether claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction a "dispute under this deed" - Relevance of defences invoking deed. PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction - Claims by beneficiaries to remove a trustee and vary trust - whether arbitrable. PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Referral to arbitration - Part of dispute within scope of arbitration clause - Whether error of discretion to refuse stay. PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Mediation clause - Whether error not to refer to mediation.

DEFAMATION - absolute privilege - letter of complaint to the New South Wales Medical Board - whether letter published on an occasion of common law or statutory absolute privilege - whether publication made by the making of a complaint is a publication for the purpose of assessment or referral of a complaint - whether letter originated absolutely privileged proceedings of the Medical Tribunal

SENTENCE - guilty plea - affray - 10% discount for guilty plea at late stage - high level of objective gravity - significant level of general deterrence - no expression of remorse - offender's criminal history not a significant factor - finding of special circumstances based on offender's medical and psychological issues

PRACTICE AND PROCEDURE - case management - obligation of the court to exercise its powers under the Rules to ensure that the real issues are determined justly, quickly and cheaply

CRIME - murder - special hearing - partial defence of substantial impairment by abnormality of the mind

CORPORATIONS - Scheme of arrangement - Application or approval of share scheme pursuant to s 411(4)(b) of Corporations Act 2001 (Cth)

Approval of proposed settlement of proceedings commenced by the Plaintiff, by his tutor, the NSW Trustee and Guardian - The Defendant, and a party to the proposed settlement, is the son of the Plaintiff

COSTS - Security for costs - Factors relevant to the exercise of the Court's discretion to order security for costs.

PERSONAL INJURY - supply of contaminated food - Salmonella poisoning - factual contest as to source of supply.