Cases and authorities

CRIMINAL LAW - insider trading - sentencing - matters taken into account in determining sentence - analysis of considerations in section 16A(2) Crimes Act 1914 (Cth) - plea of guilty - favourable subjective features .

PRACTICE AND PROCEDURE - application for leave to appeal from Local Court - order as to costs - leave refused

Claim by owners corporation against former compulsory strata manager - claim in detinue and conversion - refusal to deliver up books and records - need to reconstruct records - additional work performed by new strata manager as a result of non-delivery of books and records - legal costs incurred by owners corporation in seeking orders for delivery up of books and records - failure by a former compulsory strata manager to maintain books and records - entitlement of owners corporation to account - nature of and entitlement to damages by owners corporation.

CORPORATIONS - winding up - whether creditor who financially asserted recovery by liquidator should be given advantage over other creditor - where assisting creditor provided a substantial sum which has been repaid - where other creditor had no opportunity to consider whether to contribute assistance

CORPORATIONS - winding up - examination of officers and others - related order for production - where some documents produced before examination and dealt with at examination - other documents produced after examination had been stood over generally with liberty to resume within six months - producing party (examinee) then seeks order setting aside order for production - whether required connection with examination still exists

PROCEDURE - costs - creditor with judgment debt and unquantified costs orders issues statutory demand for judgment debt - company does not pay - creditor commences winding up proceedings - company eventually pays judgment debt - another creditor seeks substitution as plaintiff - original plaintiff does not press winding up application - how costs should fall as between original plaintiff and defendant company

CORPORATIONS - winding up - application for substitution as plaintiff in proceedings for winding up in insolvency - whether applicant has proved status as creditor - substitution ordered - CORPORATIONS - winding up - application for winding up in insolvency - presumption of insolvency arises from non-compliance with statutory demand - whether defendant has discharged onus to prove solvency - need for "fullest and best" evidence - onus not discharged - winding up ordered

CORPORATIONS - winding up - pooling - liquidator of forty companies seeks pooling order - whether statutory criteria for pooling satisfied- whether just and equitable that the liquidations should be pooled - whether ancillary orders should be made

APPEAL FROM LOCAL COURT - contract not validly terminated - award of damages - whether Magistrate erred in law in assessing plaintiff's damages - whether GST payable on damages considered in the Local Court CONTRACT - relief - damages - whether plaintiff entitled to expectation damages -principles of expectation and reliance damages

Actual authority to enter agreement - ostensible authority to enter agreement - representation of principal corporation of giving agent authority to enter agreement - belief of third party as to authority given by principal to corporation of giving agent authority to enter agreement - belief of third party as to authority given by principal to agent - actual authority to issue invoices - ostensible authority to issue invoices - breach of fiduciary duty - third party in knowing receipt of trust property - Barnes v Addy constructive trust - infringement of copyright in literary and artistic works

Orders following decision of appeal - no question of principle.

BUILDING AND CONSTRUCTION- Home Building Act 1989 s 18E- proceedings for breach of statutory warranty to be commenced within seven years after the completion of the work to which it relates- whether limitation period commences with date of practical completion of the works as a whole or when the work to which the damage relates was completed- limitation period commences upon completion of work to which it relates. BUILDING AND CONSTRUCTION- damages claim for breach of statutory warranties- mitigation of damage- where the insurer denied liability for the claim for nearly four years- whether the damage became worse during the period that the insurer was denying liability- whether the action of the insurer in not settling the claim was an unreasonable failure to mitigate its damage. CORPORATIONS- deed of company administration entered into- whether DOCA should be terminated- Corporations Act 2001 (Cth)- whether the DOCA was oppressive or unfairly prejudicial, unfairly discriminatory or contrary to the interests of the creditors of the company as a whole- purpose of a DOCA is to maximise the chances of a company continuing in existence or achieve a better return for the company than would result from an immediate winding up- Court can also take into account the public interest, including the public interest in examination of a company's affairs- possibility of better return from winding up not demonstrated- DOCA not terminated. CORPORATIONS- voluntary administration- whether person entitled to vote at meeting of creditors when a creditor by subrogation and no just estimate of the value of the claim has been made- whether creditor for nominal sum only or for substantial amount. SUBROGATION- insurer not entitled to exercise a right of subrogation against a co-insured- developer not an "insured" under the policy of insurance- insurer entitled to claim against developer.

CONTRACTS REVIEW ACT - whether mortgage and loan agreement unjust - findings of fact support primary Judge's finding of no injustice.

SENTENCE - criminal law and procedure - conviction of murder after trial - random shooting of stranger - youthful offender - absence of remorse - sentence imposed

CORPORATIONS - Management and Administration - application that administration should end - creditor sued company in debt - debt disputed - administrator appointed - whether abuse in terms of the Corporations Act 2001 (Cth), s 447A(2)(b)

PRACTICE AND PROCEDURE - discovery - whether some of the documents sought by the defendants and discovered by the plaintiff are the subject of public interest immunity claimed by the State of NSW - whether a report of an independent external consultant prepared for the purpose of informing the preparation of a Cabinet minute on the topic of fare reform, but which did not in fact go to the Cabinet, is the subject of public interest immunity having regard to the issues in the proceedings between the plaintiff and the defendants - weighing of competing considerations

CRIMINAL LAW - sentence - manslaughter - plea of guilty - participation in affray involving two groups of young men - deceased stabbed by another person in Offender's group - relevance of youth - other factors relevant to sentence

CRIMINAL LAW - sentence - manslaughter - plea of guilty - participation in affray involving two groups of young men - deceased stabbed by another person in Offender's group - factors relevant to sentence

The deceased made two wills during her lifetime, the first in May 2009 and the last in December 2009 - No dispute that the May Will was duly executed and otherwise valid - Sole issue whether December Will valid and should be admitted to probate - If valid, it revoked the May Will - Central questions concerning the validity of the December Will, are whether the deceased validly executed that Will; whether she had testamentary capacity and whether the deceased knew and approved of the December Will - Undue influence also alleged but not relied upon at the hearing

APPEAL - security for costs - unresolved application for summary dismissal - impecunious appellant - weak appeal - other costs unpaid - non-compliance with directions - special circumstances (UCPR 51.50) - not shown appeal would be stultified - security ordered - initial amount pending resolution of summary dismissal application - further amount thereafter.

CONTRACT - appellants alleged that oral agreement was made immediately prior to parties entering into written letter agreement - oral agreement contradicted terms of written letter agreement in relevant respects - whether possible for earlier oral agreement to vary subsequent written agreement - whether agreement between the parties was partly oral and partly in writing

PRACTICE AND PROCEDURE - Costs - substantive proceedings pertaining to assignment of sub-lease settled by agreement - plaintiffs file motion seeking specific performance of settlement agreement - assignment of sub-lease contingent on consent of head lessor - starting point where parties compromise proceedings is that parties bear own costs - exception to general rule where party acted unreasonably or unnecessarily caused costs to be incurred - extent of relief available to plaintiffs would have been an order that defendant do all things necessary to obtain head lessor's consent - defendant had in fact done this - plaintiffs must pay defendant's costs.

TORRENS SYSTEM - indefeasibility of title - mortgages - discharge in approved form - registration of discharge by mistake of mortgagees' solicitor - whether mistaken discharge falls within personal equity exception to indefeasibility of title - consideration of unconscionability - whether mortgagor has been unjustly enriched by mistaken discharge and restitution should be granted to mortgagees - HELD - mortgages mistakenly discharged in circumstances giving rise to personal equity exception to indefeasibility of title - mortgagees entitled to be restored to their position prior to discharge - unconscionable for mortgagor to benefit from mistaken discharge - CONTRACT - construction - whether terms of deed entered into between mortgagees and mortgagor released mortgagees from prior security interests and any covenants contained in mortgage agreements - HELD - terms of deed did not operate to release mortgagor from covenants contained in mortgage agreements - REAL PROPERTY - whether, if deed operates to release prior security interests, equitable mortgage arises due to permitted retention of certificate of title by mortgagees - HELD - had deed operated to release prior security interests, equitable mortgage arose by reason of implicit acknowledgement that certificate of title and discharge of mortgage not to be delivered until payment of debt under terms of deed - SUBROGATION - if deed did operate to release earlier debts and security interests, whether mortgagees can be subrogated to the rights of first and second mortgagees under discharged mortgages due to notional payment out of earlier debt - HELD - no entitlement to subrogation - LIENS - whether mortgagees have possessory lien over certificate of title - HELD - no possessory lien in circumstances where equitable mortgage by retention of certificate of title established - SPECIFIC PERFORMANCE - whether mortgagor should be obliged specifically to perform its payment obligations under deed - HELD - specific performance not appropriate as damages an adequate remedy

[LAND LAW] - Compulsory acquisition of right - characterisation of "right" - whether "right" is land within the meaning of the Lands Acquisition Act 1955-1966 (Cth) - whether use of land acquired limited to the public purpose for which it was acquired - whether land transferred to the plaintiff's predecessor pursuant to National Transmission Network Sale Act 1998 (Cth).

PRACTICE AND PROCEDURE - Discontinuance - whether leave to discontinue should be granted. COSTS - Discontinuance - Costs of Motion - Costs payable on discontinuance.

APPEAL - from Local Court - leave to appeal - what must be shown - interlocutory orders concerning pleadings - Anshun estoppel - inconsistent judgments - relief inconsistent with earlier judgment - duty to give reasons - barristers - to whom duty is owed.

PROCEDURE - costs - Trustee in bankruptcy elects to proceed to prosecute claim - election disputed - trustee subsequently abandons claim - reasons for abandonment not relevant - trustee should pay costs

TORTS - malicious prosecution - elements of the tort - company as prosecutor - company obtains sequestration order - pleading - necessity to identify servants or agents of the corporation with malicious intent - pleading struck out.

PROCEDURE - Notice to produce - r 21.10 - whether documents "clearly identified" - whether class of documents sought - whether production could be required under s 68 Civil Procedure Act - whether documents relevant to a fact in issue - client legal privilege - whether waived by disclosing instructions - review of Registrar's decision - how review approached

COSTS - where defendant seeks costs reserved in District Court and of interpleader proceedings - where plaintiff's applications for relief in District Court unsuccessful - where defendant did nothing to promote plaintiff's applications - where defendant instituted interpleader proceedings because plaintiff refused to accept monies payable in accordance with settlement - defendant entitled to cost orders sought

PRACTICE AND PROCEDURE - judgments and orders - orders made to give effect to settlement agreement - application for relief after final orders made - whether relief appropriate for the working out of final orders - application for joinder of another party - finality - liberty to apply - whether any issue reserved for further consideration

CONTRACT - Construction - Loan Agreements - Whether loan agreements were intended to be operative in accordance with their terms - Whether subsequent payments were monies owing for purposes of loan agreements

EQUITY - trusts - constructive trust - liability for knowing receipt and knowing assistance REAL PROPERTY - indefeasibility - in personam exceptions to indefeasibility - whether available in respect of claim for monies received by volunteer and applied to reduction of mortgage RESTITUTION - monies had and received - liability of volunteer recipient of funds

CRIMINAL LAW - appeal against conviction - dangerous driving occasioning death - whether verdict was unreasonable or could not be supported having regard to the evidence - Criminal Appeal Act 1912, s 6(1) - only inference available from the evidence was that the appellant's actions to overtake vehicle involved a conscious and deliberate decision - no inference consistent with innocence reasonably open on the evidence - appeal against conviction dismissed CRIMINAL LAW - leave to appeal against sentence - sentencing judge erred in misapplication of guideline judgment in R v Whyte [2002] NSWCCA 343 - no aggravating features for consideration upon sentencing - judge's sentencing discretion not foreclosed by guideline judgment - sentence quashed and new sentence imposed

CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether trial unfair due to structure of indictment CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether jury required to specify the three incidents supporting a conviction under s 66EA CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether acts supporting charges were sufficiently particularised CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether relationship evidence, context evidence and evidence of uncharged acts was misused by the jury CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether charges bad for latent duplicity CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether insufficient evidence to leave charges to the jury CRIMINAL LAW - appeal - sentence appeal - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - where jury did not specify the particular acts relied upon for conviction - whether sentencing judge required to sentence on the basis of all laid charges EVIDENCE - admissibility - where complainant covertly recorded conversation with the appellant - whether evidence admissible under Evidence Act s 138

CRIMINAL LAW - conviction appeals - Appellants convicted of two counts of malicious wounding with intent to do grievous bodily harm - Abbosh wounds two persons - claim of self-defence - case against Bene based upon joint criminal enterprise and extended joint criminal enterprise - erroneous failure to exclude prejudicial evidence under s.137 Evidence Act 1995 - misleading directions concerning extended joint criminal enterprise - trial Judge adds unwarranted postscripts on directions concerning good character, right to silence and self-defence - no miscarriage of justice arising from these postscripts - whether verdicts unreasonable or cannot be supported by evidence - conviction of Bene on one count unreasonable - verdict of acquittal on that count - new trials ordered for Bene on remaining count and Abbosh on both counts

CRIMINAL APPEAL - s5F Criminal Appeal Act 1912 (NSW) - permanent stay granted in District Court in respect of CB but not MP - possibility of contempt referral gives ACC standing - CB examined by ACC after being charged - information obtained in examination was not disclosed - not open for District Court judge to find decision in ACC v OK [2010] FCAFC 61 was plainly wrong - permanent stay not justified - Crown appeal successful - MP appeal dismissed.

CRIMINAL LAW - appeal against conviction - sexual intercourse with a child - indecent assault of a child - whether verdict unreasonable - whether trial judge erroneously granted leave to amend timeframe within which offences were allegedly committed - whether evidence of complainant unreliable

CRIMINAL LAW - conviction appeal - convicted at trial of break, enter and steal and specially aggravated break, enter and commit serious indictable offence - whether trial Judge erred in leaving without notice to parties statutory alternative verdict under s.115A(1) Crimes Act 1900 - no practical injustice to Appellant - no miscarriage of justice - whether verdicts inconsistent - whether verdicts of guilty unreasonable - verdicts not inconsistent - verdicts of guilty not unreasonable - conviction appeal dismissed CRIMINAL LAW - sentence appeal - standard non-parole period offence - standard non-parole period imposed directly in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168 - principles in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 applied - Appellant resentenced

APPEAL - tribunals and commissions - four notices of motion filed by applicant seeking orders relating to principles of law and medical science - not appropriate to consider the issues in advance of the hearing APPEAL - tribunals and commissions - notice of motion seeking order staying applicant's deregistration as a medical practitioner - order refused as a matter of discretion - no issue of principle

TORTS - deceit - sale of residential property - property had major termite damage which was not patent and which compromised its structural integrity - prior to contemplating sale vendors had undertaken work to repair and cover limited damage - purchasers alleged that the work was done to conceal major damage of which vendors aware and that non-disclosure of that damage at the time of sale amounted to a representation by the vendors that there was no serious termite damage to the property - held that vendors unaware of major damage and did not act dishonestly - whether necessary in considering purchasers' claimed remedy in deceit to consider whether vendors made a representation APPEAL - application on appeal to adduce further evidence of discovery made after hearing at first instance - appellants purchased property that had major termite damage which was not patent and which compromised its structural integrity -purchasers and their legal representatives made deliberate decision to leave damaged timber beam in situ pending the hearing at first instance - prior treatment of beam only became apparent when beam removed after hearing at first instance - whether requirement of reasonable diligence satisfied

CORPORATIONS - interpretation of company's constitution - whether levy struck by directors within power - construe constitution as business document. CORPORATIONS - class rights - home unit company title - whether proposed development affects class rights. WORDS & PHRASES - meaning of "service or maintenance charges"

PROCEDURE - costs - notice of motion

LEASES - abandonment or resumption of possession by tenant - inference of surrender by operation of law - where sole permitted use of leased land brought to an end - whether grant of grazing licence over leased land amount to acceptance of surrender.

REAL PROPERTY - Statutory construction - Section 129A Real Property Act - clear words fortified by evident purpose and object

SUCCESSION LAW - application for family provision order - plaintiff the second wife of the deceased - whether provision inadequate - family provision order made

REAL PROPERTY - possession of land - defence that loan has been securitized - Plaintiff is registered mortgagee - no notice of assignment given to Defendant -alleged breach of Credit Code - effect of - illegality.

ADOPTION - application for change of names of two children - whether change of given names in best interests of children - HELD - application granted

PROCEDURE - costs - departing from the general rule - whether indemnity costs order should be made - offers of compromise - Calderbank offers - orders

LOCAL GOVERNMENT - complaint against councillor - review of complaint - conduct of review - the Local Government Act 1993 - the Council's Code of Conduct - construction of the Code - whether the reviewer failed to adhere to the Act and the Code - whether general manager and /or delegate acted contrary to their obligations under the Act and the Code - whether report into the complaint should be quashed ADMINISTRATIVE LAW - construction of Local Government Act 1993 - construction of Council's Code of Conduct - particulars of complaint - investigator's obligations - procedural fairness - failure to give reasons - whether Council should be restrained from dealing with complaint - the Hardiman principle - whether Council breached Hardiman principle in its approach taken in these proceedings