Cases and authorities

DEFAMATION - finding of qualified privilege - no finding of malice - no error in approach of primary judge. APPEAL - civil - procedure - significant costs expended for small award of damages not necessarily a basis for leave to appeal - Civil Procedure Act 2005 (NSW), s 60 considered.

EQUITY - equitable remedies - plaintiff claims his late father made promises to devise to the plaintiff a 10 acre block of orchard land held in the father's name - the defendant executor disputed that the deceased made to his son the promises alleged - whether the promises were made - whether the plaintiff relied on the promises - whether the plaintiff suffered any detriment in reliance on the promises - what is the appropriate remedy if the promises were made - HELD - promises made and relied on and plaintiff suffered detriment remediable by conveyance of the 10 acre block to the plaintiff subject to financial adjustments - LIMITATION OF ACTIONS - whether plaintiff out of time to bring proceedings for to enforce the promises alleged to have been made - HELD - plaintiff's action not out of time.

PRACTICE AND PROCEDURE - application by defendant to amend Defence - explanation of delay - delay not substantial - proposed amendment raised jurisdictional issues - whether Motor Accident Compensation Act 1999 applied to proceedings so that plaintiffs had to comply with sections 108 and 109 of that Act - whether amendments futile - amendments arguably effective - amendments should be allowed - costs.

CRIMINAL LAW - appeal against conviction - robbery in company - identity of other offenders unknown - applicant not identified during robbery - circumstantial evidence - whether monies stolen were "owned" by the victim - whether verdict unreasonable CRIMINAL LAW - appeal against conviction - circumstantial evidence - DNA evidence - competing DNA evidence - whether verdict unsafe or unreasonable CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - whether De Simoni principle contravened - whether trial judge correctly took into account the weapon - trial judge entitled to take into account circumstances of aggravation and to assess objective seriousness

CRIMINAL LAW - sentence appeal - supply of not less than a commercial quantity of a drug - part played by offender in supply - whether sentencing judge should have considered non-custodial options - effect of standard non-parole period and maximum sentence as guideposts - no error disclosed and custodial sentence appropriate.

CRIMINAL LAW - appeal against conviction - appellant convicted of aggravated sexual assault - admission of tendency evidence- tendency evidence concerned a further sexual assault - possibility of concoction between victims - media reports concerning appellant's misconduct - possibility of contamination - ground dismissed CRIMINAL LAW - appeal against conviction - miscarriage of justice - incompetence of counsel - failure of legal representatives to adduce evidence of media reports concerning appellant's misconduct - media article relevant to admission of tendency evidence - ground dismissed CRIMINAL LAW - appeal against conviction - credibility of complainant - inconsistent statements concerning alleged sexual assault - absence of complaint by victim when questioned - judge gave directions in relation to absence of complaint - trial judge found complainant had reason for denying sexual assault - ground dismissed

BANKRUPTCY- provable debts- bankrupt entered into a deed for payment of $100,000 to settle a District Court action in which he was a third party- deed entered into for relationship's sake not because of pre-existing liability- only paid $20,000- primary judge ordered appellant to pay $80,000 plus interest and costs- money due under deed not a provable debt because not a contingent debt existing at the time of the bankruptcy- bankruptcy later annulled because of composition- effect of annulment of bankruptcy is as if bankruptcy never occurred in the first place- no leave to proceed against the bankrupt in the District Court had been obtained- this did not vitiate- in any event annulment made the defect otiose- even if a provable debt, respondents' rights revived after annulment- deed enforceable- appeal dismissed.

COSTS - general rule that costs follow the event - trial costs - appeal costs COSTS - indemnity costs - where Calderbank letter - reasonableness of rejection

COSTS - Dust Diseases Tribunal dismisses cross-claim by defendant after principal proceedings settled - whether Tribunal erred in refusing to order costs in favour of cross-claimant - relevance of settlement of principal claim in accordance with apportionment determination

JUDICIAL REVIEW - challenge to conviction in the Industrial Court under s 11(1)(a) of the Occupational Health and Safety Act 2000 - applicant the designer of a heavy gate which fell and killed a person at a workplace - applicant's defence of novus actus interveniens rejected - whether Industrial Court applied the wrong test for causation - whether design defect overtaken by subsequent negligent failure by third party to correct the defect - whether decision affected by fundamental error

CONTRACT - employment contract - redundancy clause - construction - identification of employer - whether surrounding circumstances favour wider construction despite narrow definition CONTRACT - oral contract - evidence of contract - whether evidence of agreement to reimburse employee for any loses while residing overseas - whether evidence that liability for employee's spouse's loan discharged CORPORATIONS - winding up - winding up in insolvency - calculation of employee leave entitlements for the purposes of s 556(1B) Corporations Act 2001 - whether accrued leave should be attributed to period when employee was a director - whether the rule in Clayton's case applies to accrual of annual leave - (CTH) Corporations Act 2001 s 556(1B) CORPORATIONS - winding up - winding up in insolvency - calculation of employee retrenchment entitlements for the purposes of s 556(1C) Corporations Act 2001 - whether all or part of retrenchment payment attributable to non-priority days when termination took place on priority day - method of attribution - (CTH) Corporations Act 2001 s 556 CORPORATIONS - winding up - winding up in insolvency - interest - claim against liquidators personally - whether s 477(1)(b) empowers liquidator to pay post-liquidation interest other than in accordance with s 563B Corporations Act 2001 - (CTH) Corporations Act 2001 s 563 B

CONTRACT - oral contract - evidence of contract - whether evidence that liability for employee's spouse's loan discharged

PRACTICE AND PROCEDURE- application for leave to appeal from refusal to grant adjournment- appeal will rarely be granted against refusal to grant adjournment- will be granted if refusal will produce an injustice- per Young JA, Giles JA agreeing: in the circumstances, refusal would produce injustice as trial would have to be adjourned part heard and damages would be determined twice due to related proceedings- leave to appeal granted- appeal allowed- trial date vacated- per Basten JA dissenting: the grounds for taking the extraordinary step of changing a judge's discretionary procedural decision are well established- the applicant did not make out a sufficient case for review.

APPEAL - general principles - no appeal on question of fact - trial judge found that there was an oral contract on the balance of probabilities - sufficient evidence to support finding that there was an intention to create legal relations - sufficient evidence to justify award of damages

APPEAL - s 101(1) Supreme Court Act 1970 - appeals only lie against a "judgment or order" - where there is no formal judgment or order which when entered is binding on the parties and definitive of legal rights, no appeal lies - appeal is against judgment or order, not against the reasons for judgment - impossible to appeal against orders that have not been made

PRACTICE AND PROCEDURE - Application for stay of execution of judgment pending determination of appeal - right of plaintiff to benefit of judgment upheld twice at successive appellate levels - analysis of prospects of success at appeal - prospects low given appeal on a discretionary judgment on a matter of practice and procedure - application dismissed - limited stay granted so Court of Appeal can consider application for stay pending application leave to appeal.

ADMINISTRATIVE LAW - appeal - Consumer, Trader and Tenancy Tribunal - residential tenancy - landlord's application to Tribunal for termination of lease and payment of arrears of rent - where tenant alleges non-receipt of notice of hearing - whether denial of procedural fairness - application for orders in the nature of prerogative relief - s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 - no denial of procedural fairness

CORPORATIONS - application under ss 459G and 459H(1)(b) of the Corporations Act 2001 (Cth) - application made on the basis there is a genuine dispute and that an offsetting claim exists - HELD - there is a genuine dispute as to whether there was substantial performance of the contract - a genuine offsetting claim established - statutory demand set aside.

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - damages assessment by claims assessor - challenge to assessment of future economic loss - submission that claims assessor failed to comply with s126 of the Act - submission that damages assessment by claims assessor offended the compensation principle - extent of reasons determined by objects of Act and context - claims assessor's reasons sufficient - reasons complied with s126 - no failure to comply with compensation principle.

CORPORATIONS - management and administration - directors - fiduciary duties of directors - where loan account in director's favour established in company's books - where to director's knowledge there was no entitlement of the director to funds represented by the loan account - drawings by director against loan account - whether breach of fiduciary duty - whether fraudulent breach - CORPORATIONS - informed consent of company to breach of fiduciary duty - where one shareholder given by constitution power to pass any resolution at a general meeting - assent by that shareholder apart from general meeting - whether effective - ESTOPPEL - prior adjudication - where creation of loan account and drawings on it had been the subject of findings in earlier oppression proceedings - whether res judicata - whether issue estoppel - whether existence of issue estoppel precludes reception of further evidence - ESTOPPEL - prior adjudication - effect on non-party - whether non-party privy or agent of party - EVIDENCE - judicial discretion to limit use - relevance of inability to cross-examine because witness not called - REAL PROPERTY - co-ownership - joint tenants - whether fraud of one joint tenant in taking of title jointly affects other joint tenant - where first joint tenant later transferred his interest to second joint tenant - nature of the sole registered proprietor's title under Real Property Act - TORRENS SYSTEM - fraud exception to indefeasibility of registered estates - nature of relevant fraud - EQUITY - equitable defences - laches - elements of defence - LIMITATION OF ACTIONS - proceedings for equitable relief - equity seeks analogy with the law - fraudulent breach of fiduciary duty - analogy with tort of deceit or conspiracy to defraud - no analogy with trusteeship if trust property not held - relevance of incapacity

Professional negligence - delay and default in preparation - inability to medically examine Plaintiff - dismissal of proceedings not justified

CONTRACT - acceptance - whether franchise agreement renewed - whether option to renew exercised - acceptance by conduct. CONTRACT - interpretation - length of term of renewal. TRADE PRACTICES - industry codes - Franchising Code of Conduct - meaning of "renew" for purposes of Code - failure to comply with code - decline grant of relief - unconscionable conduct - none found in this case

CORONERS - inquest into death - jurisdiction of coroners - application to Supreme Court to require an inquest to be held - whether "manner and cause" of death have not been sufficiently disclosed - relevance of events preceding death to "manner and cause" of death - scope of "the interests of justice" APPEAL - leave to appeal - interlocutory orders and judgments - refusal to order inquest is interlocutory - did not involve an amount of $100,000 or more APPEAL - interference with discretion of court below - discretionary decision about what interests of justice require - House v The King standard of appellate review

COSTS- whether full costs should be awarded in an appeal in a vendor and purchaser case which succeeded on a point which was subsidiary to the main argument advanced at trial- full costs awarded.

PRACTICE AND PROCEDURE - Plaintiff applies for determination of separate questions - separate questions primarily ones of construction - determination would render superfluous need to determine other claims for relief and would narrow compass of discovery. INTERLOCUTORY INJUNCTIONS - defendant serves notice under (NSW) Conveyancing Act 1919, s 133E asserting breach of lease - plaintiff institutes proceedings within 28 days - s 133G entails lease to continue in force until proceedings determined - defendant files s 129 notice to circumvent operation of s 133G - no evidence of prejudice to defendant if injunction granted.

INTERLOCUTORY INJUNCTIONS - Plaintiff contends defendant in breach of confidentiality clause of deed entered into in settlement of defamation proceedings - strongly arguable defendant in breach by making of posts on internet forum - defendant contends relief should be refused as plaintiff lacks clean hands - not established court would decline final relief on this basis - assertion publication complained about in public domain as a result of pronouncements in Court proceedings - in public domain to limited extent entailing that confidentiality not lost - plaintiff has arguable case for final relief - balance of convenience favours grant of injunction as obligation of confidence would be completely defeated if injunction refused - no evidence of prejudice to be suffered by defendant - injunctory relief granted.

REAL PROPERTY - Caveats - husband of fractured marriage seeks order extending operation of caveat - proceedings already on foot in Family Court for property adjustment - proceedings for extension of operation of caveat in regards to property of parties to a marriage are a matrimonial cause within (CTH) Family Law Act s 4 - discussion of law - inappropriate to grant relief sought where parallel proceedings on foot in Family Court.

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether adjudicator erred by concluding that s34 of the Act rendered void certain provisions of construction contract - nature of requirement to 'consider' pursuant to s22 (2) - no requirement for 'consideration' to lead to a legally or technically correct answer.

CORPORATIONS - deed of company arrangement - power of court to vary - whether power should be exercised

WORKERS COMPENSATION - appeal against decision of Deputy President - limited to decisions in point of law - whether there was a misapplication of s 40 of the Workers Compensation Act 1987 - whether there was evidence to support the Deputy President's finding - whether there was a failure to give adequate reasons - whether there was a denial of procedural fairness in making a determination on the papers - no error in point of law.

TAX - income tax - whether director of a company liable for moneys withheld from employees' salaries or wages - withholdings made by a partnership of which company a member - whether defence under s 222AOJ(3) of the Income Tax Assessment Act 1936 (Cth) - PARTNERSHIP - appellant and company excluded from operation of partnership business - whether partnership terminated by repudiation - s 40 of the Partnership Act 1963 (ACT)

ADMINISTRATIVE LAW - validity of condition of development consent - assessment by reference to scope and purpose of statutory power under which it was imposed - practical effect of condition reasonable - no contravention of the statutory limit of the power being exercised COSTS - primary judge reserved the costs of the trial - inappropriate for court to make order as to the costs of the trial - matter left to the primary judge to determine - appeal costs ordered against company in voluntary liquidation - Suitor's Fund Act 1951 (NSW) PLANNING AND ENVIRONMENT - responsibility for carrying out development - liability of individuals acting company directors - performance of directorial duties not distinct from the act of the company - liability not extended PROCEDURE - judgments and orders - whether orders should be made against company which went into voluntary liquidation whilst judgment was reserved - liquidator to be given opportunity to be heard

NEGLIGENCE - member of shearing team - back injury in course of shearing operations - whether injury because slipped on stairs in shearing shed - trial judge's affirmative finding upheld - whether owner of shearing shed breached duty of care in failing to have non-slip strip on stairs -owners of shed had followed WorkCover guide - stairs complied with relevant standards - but evidence of particular risk factors - failure to address through principles in Civil Liability Act - but exercise of reasonable care required non-slip strip. APPORTIONMENT - employer also breached duty of care - whether trial judge's apportionment for purposes of s 151Z Workers Compensation Act appealably erroneous - apportionment varied.

FAMILY AND CHILD WELFARE - orders in relation to the child previously made in the parens patriae jurisdiction of the Court - child turning eighteen soon - legal representative of the child seeks clarification of his role - role of a Direct Legal Representative or an Independent Legal Representative under the Children and Young Persons (Care and Protection) Act 1998, s 99D considered - role of the Independent Children's lawyer under Family Law Act 1975 discussed - neither of the statutory models binding on the Court in the exercise of its inherent parens patriae jurisdiction but the models useful as a template for the Court's decision - whether the child is capable of giving instruction to her representative - whether the child's access to some of the medical reports should be restricted in her best interests.

PRACTICE AND PROCEDURE - Defendant applies for dismissal of proceedings for want of prosecution - plaintiff said to have failed to file further evidence in accordance with direction of Court - motion has effect of inhibiting ability of plaintiff to file such evidence - inappropriate to dismiss proceedings - application adjourned and plaintiff given extension of time to file evidence.

INJUNCTIONS - Interlocutory injunctions - plaintiff seeks continuation of interlocutory orders restraining defendants from dealing with certain moneys and shares - moneys and shares said to be traceable from breach of fiduciary duty by defendants - plaintiffs question propriety of expenditure by fourth defendant and accuracy and completeness of information provided as to expenditure - injunction deals with assets the subject matter of proceedings - principle applicable to Mareva injunctions that party be allowed to make expenditure for living expenses and legal costs not applicable where injunction deals with subject matter of claim - injunction sought specific to such moneys and shares not to totality of defendants' assets - defendants' have substantially dissipated moneys by engaging in liberal level of living expenses - unacceptable situation ought not continue - injunction continued.

ABORIGINALS - Land Rights - transfer of land to Aboriginal corporation to be held on trust for members - fee simple defeasible by conditions subsequent - failure to pay rates - call for transfer back - whether defendant members entitled to possession against liquidator - perpetuities - charitable purpose trust

CORPORATIONS - application to set aside examination summonses and orders for production - whether creditor conducting examinations potentially to advance own interests amounts to an improper purpose - in the alternative, application to limit the scope of examinations - HELD - improper purpose not established - on review of material, fourth and fifth defendants unlikely to have information as to examinable affairs of company within scope of the permissible examinations - set aside those examination summonses and orders for production only - scope of examinations that remain on foot limited to matters relevant to potential claims by company or liquidator against the directors or shadow directors - orders for production limited to specific categories

[CONTRACT] - termination of plaintiff's contract - whether implied duty of good faith to act reasonably in terminating contract pursuant to special condition that provides for termination "at any time without a reason" [ESTOPPEL] - whether representation made that defendants would only exercise right to terminate under special condition if plaintiff guilty of poor performance - whether defendants estopped from exercising right under special condition

CORPORATIONS - ss 588FA(1)(b) and (2) of the Corporations Act 2001 (Cth) - application for stay pending appeal against finding that the defendant (the proposed appellant) received an unfair preference by way of payment of an unsecured debt when the company was insolvent - sole ground of proposed appeal is that s 588FA did not apply because the payment was secured by equitable mortgage because there was an agreement between the company and the defendant that the company would give him a mortgage over its land upon request, even though there had been no request - PRACTICE AND PROCEDURE - requirements for a stay - whether there are arguable grounds of appeal - consideration of whether the agreement relied on gave rise to an equitable mortgage without the request - consideration of whether if the stay were refused the appellant would be deprived of the means of prosecuting the appeal - upon condition that the defendant undertakes to the Court to prosecute his appeal diligently and with all due expedition, stay ordered until determination of the appeal or until further order

CONTRACTS - construction - meaning of "sale" - meaning dependent on context - relevance of purpose of contractual provision CONTRACTS - agreement - uncertainty and incompleteness - whether essential terms agreed

COSTS - probate - contested action for grant of probate in solemn form - unsuccessful cross-claim that informed document was testamentary - whether unsuccessful defendant and cross-claimant should have costs out of the estate or pay costs personally - whether unsuccessful party should pay costs on indemnity basis - whether special costs order appropriate in the circumstances

CRIMINAL LAW - appeal against sentence - where sentencing judge erroneously failed to have regard to the provisions of the Criminal Case Conferencing Trial Act 2008 - no miscarriage of the exercise of the sentencing discretion - leave to appeal granted - appeal dismissed

TRUSTS - Trustees - Application for judicial advice - trustee of superannuation fund seeks judicial advice as to whether it can communicate with members of fund, whether it should accept an offer from company employing employees who are members of fund and whether it should commence proceedings against company - trustee justified in communicating with members as to proposed transaction - trustee should also communicate that proposed unilateral variation of contracts of employment of dubious validity.

COSTS - factors relevant to the award of costs following settlement. COSTS - whether appropriate to order costs based on contested issues of fact without a final hearing

WILLS AND ESTATES - family provision claim - nature and extent of estate - charges on property - potential notional estate subject to options to purchase - relationship with the deceased - applicant and deceased had a poor relationship and there was a period of estrangement.

PROFESSIONAL NEGLIGENCE - medical negligence - plaintiff injured during obstructed delivery - shoulder dystocia causing Erb's palsy - whether obstetrician negligently failed to perform caesarean section - whether caesarean section should have been performed when requested by mother - whether caesarean section indicated by mother's particular obstetric history - whether vaginal delivery appropriate - whether breach of duty - no breach of duty - verdict for the defendant EVIDENCE - experts - joint report - whether admissible

EQUITY - general principles - undue influence - unconscionable dealing - gift of remainder of real property to Defendant by elderly aunt - gift follows execution of will leaving the whole of the property to the Defendant - whether relationship one of influence - whether presumption rebutted - whether donor had mental capacity to make the gift - relevant time for considering capacity - principle in Parker v Felgate applied to inter vivos gifts - independent legal advice - no undue influence - no unconscientious dealing. EQUITY - settlements - matters arising under settled estates - whether Court should authorise the sale of the life interest notwithstanding findings of no undue influence or unconscientious dealing.

PRACTICE & PROCEDURE - joinder of necessary or proper party to facilitate just, quick and cheap resolution of the proceedings - reopening of case to call additional witness which would necessitate adjournment

RESTRAINT OF TRADE - interlocutory relief - Employer and employee - general manager and marketing director - restraint clause in employment contract - whether there is a serious question to be tried as to whether there is a breach of the restraint clause - whether the balance of convenience favours the granting of interlocutory relief