Cases and authorities

PROCEDURE - costs - Civil Procedure Act 2005, ss 99(2)(c), 99(1)(b) - whether claim brought without reasonable cause - claim brought under Trade Practices Act 1974 (Cth), s 51AA, s 82 - whether loss of chance arguably constitutes damage for the purposes of an unconscionable conduct claim

ABUSE OF PROCESS -- first action established that excess drawings from joint-venture created debt due to joint-venture -- second action claiming proprietary rights by tracing through drawings -- abuse of process EQUITY - accounts -- rights to be established at trial PROCEDURE - accounts -- rights to be established at trial RES JUDICATA - judgment for joint-venture accounts -- excess drawings from joint-venture created debts to joint-venture -- later claim to trace through drawings -- claim barred RES JUDICATA - abuse of process -- first action established that excess drawings from joint-venture created debt due to joint-venture -- second action claiming proprietary right by tracing through drawings -- abuse of process

EVIDENCE - documents contain statement of land value by Valuer-General - (NSW) Evidence Act s 156 does not provide for admissibility of public documents - whether documents business records - business includes activity engaged in or carried on by the Crown in any of its capacities - document a business record falling within business records exception to the hearsay rule - whether if hearsay rule does not apply document containing opinions may be excluded by opinion rule - prevailing view that opinion rule applies to business records - document containing opinions based on specialised knowledge, training, study or experience admissible - general discretion to exclude evidence - Makita principles do not apply to render business records containing opinions inadmissible -circumstances include Valuer-General not available for cross-examination, plaintiffs to call other valuation evidence, defendant serves no valuation evidence, notice of valuation does not reveal rationale - evidence unfairly prejudicial to defendant and discretion exercised to exclude.

PRACTICE AND PROCEDURE - Notices to produce - application to set aside notice - certain paragraphs in notice relate to documents of little significance to proceedings - certain paragraph in notice fails specificity test by not calling for specific documents - certain paragraph in notice seeks documents to provide basis to cross-examine defendant witness where such evidence would be outside scope of particular witness - paragraphs set aside.

CORPORATIONS ACT 2001 (Cth) - Pt 5.3A, s 447A(1) - application to modify operation of the Part to the terms of the Deed of Company Arrangement where the deed terminated in accordance with its provisions of which fact the deed administrator and creditors were oblivious - modification appropriate in the circumstances

PROCEDURE - discovery and inspection of documents - whether to grant order for discovery in 56 nominated categories - order made for discovery in 38 of the nominated categories

[INJUNCTIONS] - application to restrain meeting to consider resolutions relating to first plaintiff's employment - where passing of resolution may have adverse financial consequences for plaintiffs - whether damages adequate remedy

CORPORATIONS - application to set aside winding up order - where order obtained regularly but in the absence of an appearance by the defendant company - where director willing to indemnify the company for debt claimed and costs incurred in setting aside winding up order - no evidence as to financial position of the director - no evidence of solvency of company - application to set aside winding up order dismissed

Corporations Act 2001 (Cth) - s 482(1) - application to terminate winding-up where company was wound up at the instance of a judgment creditor whose judgment was overturned on appeal - where the company is owed money by a related company - winding-up stayed to allow payment to be made - company clearly solvent - winding-up terminated

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - either party might rescind contract for sale of unregistered lot if strata plan not registered by a Registration Date - vendor to use reasonable endeavours to have strata plan registered by Registration Date - separate question whether vendor entitled to rescind notwithstanding any breach of the obligation to use reasonable endeavours - whether to be construed so that non-registration alone entitled vendor to rescind - no mention of causal connection of breach to non-registration - whether question had to be answered in the affirmative

DEFAMATION - defences - defences of honest opinion under section 31 of Defamation Act 2005 - where no defence of qualified privilege pleaded - whether defendants should be directed to answer interrogatories directed to the information held by them at the time of publication - damages - interrogatories directed to communications received by defendants

DEFAMATION - defences - adequacy of particulars of truth - contextual truth - whether contextual imputations pleaded by defendant capable of arising - whether bad in form - whether particulars of contextual truth adequate

DEFAMATION - capacity of matter complained of to convey imputations relied upon by plaintiffs INJURIOUS FALSEHOOD - whether element of malice to be judged by same criteria as for defence of qualified privilege under the law of defamation - whether plaintiff required to identify the improper purpose alleged - whether allegation of gross recklessness capable of founding inference of malice - whether particulars supplied by plaintiff adequate

COURT OF DISPUTED RETURNS - petition disputing election of member of legislative assembly - claim for declaration that election result 'void' - allegations in the nature of fraud - Notice of Motion seeking order that petition be dismissed for defects of form - non-compliance with requirements of Parliamentary Electorates and Elections Act 1912 - failure to state occupation of attesting witnesses - failure adequately to state facts relied upon - petition invalid - petition dismissed

SENTENCE - Discount for plea of guilty - Plea is not timely if entered after capture following escape - Parity - Different culpabilities arising out of transaction for sale of drugs

SENTENCE - Offer of assistance to authority - Little value - Measure in terms of contrition - Ambiguity in remarks on sentence - No less severe sentence warranted

CRIMINAL LAW - sentence - sentencing procedure - factual basis for sentence - facts found not to be inconsistent with jury verdict - joint criminal enterprise - different roles by co-offenders - manifest inadequacy of sentence - approach where offender already released on parole - increase in head sentence.

COURTS PRACTICE- whether judgment is final or interlocutory- order dismissing proceedings seeking that District Court proceedings be consolidated with Supreme Court proceedings- held interlocutory.

VALIDITY OF BY-LAWS- By-laws made under Strata Schemes Management Act 1996 authorising "Facilities Agreement" with Rec Club 15 minutes from resort- whether such by-laws were outside the powers of the Owners' Corporation- the power to make by-laws is to be construed liberally- limitations on the making of by-laws to be construed from the enabling statute- there must be a clear nexus between the subject matter of a by-law and the use or occupation of the property in question- there is no precise rule to determine the existence of a nexus- where a by-law is original, a very strong case must be made out to declare it invalid- by-laws authorising "Facilities Agreement" upheld as valid.

TORTS - Motor accidents - Late claim - Requirement of s 108 of the Motor Accidents Compensation Act 1999 for a certificate before a claimant can bring court proceedings - Determination by CARS that claimant had not provided a full and satisfactory explanation for the delay - Determination by CARS PCA denying the claimant a certificate - Whether judicial review available.

CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - plea of guilty - favourable subjective case - imposing a fixed term not justifying a reduction of sentence - special circumstances - parity with co-offenders

CORPORATIONS - winding up in insolvency - application to be substituted as plaintiff in application that defendant be wound in insolvency under s 465B, Corporations Act 2001 (Cth) - whether bona fide dispute about debt claimed by applicant - only evidence as to dispute about debt statement of claim annexed to affidavit - statement of claim not evidence of the facts asserted - defendant failed to show clear and persuasive grounds, or substantial grounds, for the dispute about debt claimed - applicant substituted as plaintiff

TRADE PRACTICES - misleading or deceptive conduct - whether misleading statement in financial records - whether any misrepresentation induced plaintiffs to act - reliance - question of fact. RESTITUTION - money had received - whether agreement for retention of funds - whether estoppel defence by reason of change of position.

TAXES AND DUTIES - Payroll tax - notices under the Taxation Administration Act 1996, s 72 to provide information, to produce documents and to attend and give evidence - whether notices bad on their face - whether notices issued in bad faith

Criminal Law - sentencing offence of insider trading - "true insider" - plea of guilty and other favourable subjective features

CIVIL PROCEDURE - application to set aside or vary orders made in relation to examinations pursuant to s 597 of the Corporations Act 2001 (Cth) - CORPORATIONS - application for access to transcript of examinations and documents the subject of earlier orders restricting access thereto - HELD - examinations to be treated as if held in public - access granted to examination transcript and documents

ORDERS:-whether order for return of security deposit should be stayed for a period to enable defendant to obtain legal advice as to an appeal. COSTS:-whether costs of discrete issue should be payable forthwith but stayed for a period to enable defendant to obtain legal advice as to an appeal.

ADOPTIONS - Consent dispense order - birth mother consents - birth father notified of and indicates agreement to proposed adoption but does not wish to consent under Act - whether consent may be dispensed with under (NSW) Adoption Act s 67(1)(c) - requirement for 'serious concern' as to child's welfare - whether delay in progressing application because of father's failure to consent under Act 'serious concern' - circumstances of case amounts to a 'serious concern' - mere delay in progressing application would not be 'serious concern' if birth parent opposes adoption.

DEFAMATION - defences - defence of truth under s25 of the Defamation Act 2005 - whether particulars of truth sought to be relied upon by the defendant liable to be struck out - defence of contextual truth under s26 of the Defamation Act 2005 - whether proposed contextual imputation capable of arising at the same time as and in addition to the plaintiff's imputations - Hore-Lacy imputation - where not truly alternative to plaintiff's imputations

TORTS - wrongful arrest - false imprisonment - order pursuant to Part 29 r 10 of the UCPR

COURT OF DISPUTED RETURNS - challenge of election results - petition dismissed by consent - power to order costs against third parties - petitioner to pay costs - Crown recommended to pay petitioner's costs.

APPEAL - civil - leave required - no error on part of primary judge - whether further evidence likely to be admitted on appeal - whether further application to set aside judgment should be made to single judge. APPEAL - civil - procedure - application to set aside default judgments - further evidence proffered on leave application - whether there had been trial or hearing on merits - Supreme Court Act 1970 (NSW), s 75A(8). PROCEDURE - default judgment - writs of possession of land issued - no proper defence filed - whether further opportunity should be permitted to seek to set aside judgment - change of lawyers.

CONTRACT - building - progress payments - entitlement to suspend work under contract where payments outstanding - whether payments outstanding - characterisation of work "under the contract" for the purpose of determining contractual accounts - whether appropriation had taken place. CONTRACT - termination - repudiation - whether suspension of work in breach of contract giving rise to right to terminate. CONTRACT - building - HBA - requirement for contractual variations to be signed by or on behalf of the parties to the contract. ADMINISTRATIVE LAW - judicial review - whether or not appropriation had taken place on basis of uncontested facts a question with respect to a matter of law. ADMINISTRATIVE LAW - judicial review - Supreme Court Act 1970 (NSW), s 69(3), error of law on the face of the record - judicial review to be made having regard to the manner in which the case was conducted in the court below.

Criminal Law

INJUNCTIONS - Interlocutory injunctions - plaintiff seeks to restrain defendant from breaching negative stipulation in contract - seriously arguable case - seriously arguable that properly construed contract does not allow termination of agreement in way alleged by defendant - interlocutory injunction likely to be practically conclusive of issue - injunction seeks to enforce negative stipulation - consistent with equitable principles to enforce such stipulations - argument damages sufficient remedy - fact plaintiff will suffer non-compensable reputational damage and may be put in breach of obligations to third parties entails breach cannot be sufficiently remedied by award of damages - balance of convenience - detriment to plaintiff would be irremediable reputational damage - defendant would merely be paying moneys to persons other than plaintiff - damages not adequate remedy for breach of monetary obligations - interlocutory injunction granted.

Criminal law - admissibility of evidence - telephone calls between accused and friends - intercepted by police - whether utterances constituted consciousness of guilt

[Referral of matters to Regulator] - purpose - whether appropriate in the circumstances

ANTI-SUIT INJUNCTION - whether the defendants should be restrained from continuing proceedings in the United States of America seeking the same relief as sought in these proceedings

CONTRACTS - construction - the meaning of the words "change of control" and "following" in a superannuation agreement - whether the definition of "change of control" in the agreement was intended to include an internal restructure of the group of companies of which the plaintiff is part - whether literal construction absurd - ambiguity - whether "following" in the relevant clause has a temporal or causal construction

EVIDENCE - admissibility - evidence going to credibility - rejection of evidence - s 102.

EVIDENCE - Admissibility - discretion to exclude or limit the use of evidence - probative value of evidence - prejudicial nature of evidence.

CRIME - application by State for extended supervision order under Crimes (Serious Sex Offenders) Act 2006 - preliminary hearing under s 7(3) of the Act - defendant consenting to orders under s 7(4) of the Act - consideration of test under s 9(2) of the Act - "unacceptable risk"

PROCEDURE - various notices of motion - parties - unrepresented litigants - tutor - leave sought by second plaintiff (husband) to commence and continue the proceedings as first plaintiff's (wife) tutor without a solicitor - leave sought refused - defendant's application that second plaintiff be removed as wife's tutor refused - motion seeking summary judgment refused - whether proceedings should be stayed or dismissed as far as second plaintiff is concerned - statement of claim dismissed as far as second plaintiff is concerned - first plaintiff referred to Registrar for referral to pro bono panel for advice

CRIMINAL LAW - particular offences - offences against the person - drug offences - Drug Misuse and Trafficking Act 1985 - one count supply traffickable quantity MDMA "ecstasy" - two counts supply large commercial quantity MDMA "ecstasy" - Form 1 possession offences CRIMINAL LAW - appeal against conviction - trial by jury - supply prohibited drug - telephone intercepts - translation of recordings - "codes" used in supply of ecstasy - whether conversations capable of innocent construction - alternative translations - conduct of defence counsel - independent translators not called - forensic decision to limit cross-examination on translation of particular words - no miscarriage of justice - finding of guilt open on the evidence - appeal dismissed CRIMINAL LAW - evidence - opinion rule - telephone intercepts - evidence given by police officer of "argot" of drug dealing - application of s 79 Evidence Act - specialised knowledge based on experience in drug investigations - opinion framed in terms of "consistency" - evidence properly admitted CRIMINAL LAW - evidence - witnesses - persons criminally concerned - whether evidence of tendency - proper characterisation of evidence - relevant for another purpose - s 95 Evidence Act - appropriate directions given CRIMINAL LAW - evidence - admission of telephone intercept recordings post-dating offences alleged - appellant not involved in conversations - relevant to the issue of joint criminal enterprise - evidence properly admitted CRIMINAL LAW - application for leave to appeal against sentence - relevance of sentences imposed on co-offenders - no error in assessment of objective seriousness - leave granted - appeal dismissed

CRIMINAL LAW - sentence appeal - 39 counts of tax fraud and 42 counts of identity fraud - pleas of guilty - sentencing judge grouped offences for sentencing purposes - whether principle in Pearce v The Queen observed - whether proper weight given to applicant's co-operation when orders made under Proceeds of Crime Act 2002 (Cth) - was it appropriate for sentencing judge to have regard to findings of ICAC when assessing applicant's character - whether error in setting non-parole period.

CONTRACTS - cross-claims - Contracts Review Act 1980 - whether loan and mortgage unjust - no independent legal advice - elderly borrowers with limited command of English and no ability themselves to repay borrowings - experienced borrowers who had previously received legal advice and who understood and consented to increased borrowings - borrowers also appreciated and consented to risks involved in transaction - whether borrowers had the benefit of the money in issue - part of borrowings used to repay another loan - contract not unjust - whether relief would be granted if contract found unjust - relief would be refused - Australian Securities and Investments Commission Act 2001 - whether brokers engaged in misleading or deceptive conduct - passing on false information - implied disclaimer - misleading and deceptive conduct not established - whether brokers engaged in unconscionable conduct - not ensuring borrowers obtained independent legal advice - unconscionable conduct not established - loss claimed not established - cross-claims dismissed

CORPORATIONS - Corporations Act 2001 (Cth) ss 459G(1), 459J(1)(a), 459J(2) - statutory demand - defect in the demand - where description of debt does not identify the basis for the indebtedness - where the claim or part of it cannot on its face and having regard to concessions made be a debt but must be unliquidated damages - demand set aside

EVIDENCE - Admissibility - exceptions to the hearsay rule - exceptions to the credibility rule - proof of prior consistent statement - allegations of fabrication - ability to cross-examine the maker of the statement.

TORTS - malicious prosecution - order pursuant to Part 29 r 10 of the UCPR