Cases and authorities

JUDICIAL ADVICE - application for clarification of earlier judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - HELD - judicial advice given

Security for costs

TORT - NEGLIGENCE - motor vehicle accident in South Australia - question of fact - was there another vehicle involved in accident - inherent improbability of presence of other vehicle - whether sufficient evidence to establish negligence - whether the plaintiff was wearing a seatbelt at the time of the accident.

(1) Commonwealth offence - attempt to dishonestly obtain financial advantage - false claim for approximately $500,000 Goods and Services Tax refund - persistence in pursuit of claim. (2) State offences - attack on victims with operating chainsaw - evidence of attack by another (the appellant's father) as victims fled the danger from the chainsaw - admissibility of that evidence - jury directions - sentence - failure to accumulate upon sentence for Commonwealth offence so that no minimum custody referable exclusively to State offences - inadequacy - appellant re-sentenced.

Sentence - Ongoing supply of illicit drugs - Deemed supply of illicit drugs - Defect in Form 1 procedure - Erroneous reason stated for rejection of appellant's remorse - Cumulation of entire term on one count - Totality - Likely effect on sentence assessment.

CONTRACT - construction - dispute resolution clause - expert determination - whether the defendant can still commence court proceedings after expert has made determination - where contract provides that determination over certain amount can be litigated but amount left blank - where multiple contractual documents given order of precedence by contract - held that determination final and binding - whether clause unenforceable as being against public policy on the ground that it ousts jurisdiction of the court - held clause provides not unenforceable

REAL PROPERTY - Caveats - application to extend operation - whether caveat has or may have substance - plaintiff contributed moneys to purchase of property - arguable claim to beneficial interest by way of resulting trust - caveat has or may have substance - misdescription of quantum of interest claimed - (NSW) Real Property Act s 74L allows court to disregard such misdescriptions where caveatable interest exists - balance of convenience - defendant in situation of personal hardship requiring moneys from sale of property - if interest asserted by caveat upheld defendant would be entitled to have property sold pursuant to (NSW) Real Property Act s 66G as property would be held as tenants in common - defendant proposes to sell property and pay proceeds of sale into court equivalent to plaintiff's arguable share - plaintiff concurs with proposal - most apposite course not to extend caveat but grant injunctive relief to give effect to defendant's proposal.

INJUNCTIONS - Interim injunction - plaintiff seeks easement over defendants' land - arguable case for final relief - balance of convenience - no prejudice to defendants if interim access granted to plaintiff's property.

Leave pursuant to section 440D Corporations Act Declaration Contract Parties to an agreement

CORPORATIONS - failure to make application to set aside statutory demand - no satisfactory explanation for failure - winding up proceedings - application under s 459S to rely on issues that could have been raised on application to set aside statutory demand - no evidence of relevance of contested amount to solvency - application dismissed

ORDERS:-whether order for release of security deposit should be stayed for short period

PRACTICE AND PROCEDURE - judgment for possession - judgment provides that payment of moneys by certain date will be full and final settlement - defendants' pay moneys late - subsequent agreement that defendants' pay additional moneys by certain date - defendants' fail to do so - no reason to preclude plaintiff from exercising its legal right. PRACTICE AND PROCEDURE - Mortgages - judgment for possession -subsequent agreement that defendants' pay additional sum by certain date - defendants' fail to do so - defendants' undertake to pay additional sum today - seriously arguable case that plaintiff no longer entitled to possession - writ for possession stayed.

DEFAMATION - whether complained of capable of conveying imputations pleaded by the plaintiff - no question of principle

TRADE AND COMMERCE:- Trade Practices Act 1974 (Cth), Fair Trading Act 1987 - misleading or deceptive conduct or false representations - in relation to investment in development application through corporate vehicle - alleged misrepresentations and non-disclosure. EQUITY:- fiduciary obligations - sole director and (with his wholly owned company) majority shareholder and accountant of small company - whether owed and breached fiduciary duty to prospective shareholder during negotiations for her to purchase shares in the company.

CRIMINAL LAW - leave to appeal against conviction - set aside jury verdict - evidence of witnesses unreliable and contradictory - unsatisfactory demeanour of the witness - capacity of witness to recall events doubtful - obvious unwillingness of witness - deficiency in the Crown case in positively identifying the appellant - conviction unreasonable and cannot be supported by the evidence

CRIMINAL LAW - sentencing- trial judge sentencing on incorrect factual basis - trial judge rejecting witness' evidence in the absence of cross-examination - significance of mental impairment to general deterrence - significance of mental impairment to specific deterrence - assessment of the objective seriousness of an offence - considerations beyond seriousness of injury to victim - nature of task required by ss 54A and 54B Crimes (Sentencing Procedure) Act 1999

CRIMINAL LAW - Leave to appeal against sentence - failure to impose non-parole period when offence provided for standard non-parole period - imprecision in assessment of objective seriousness of offence - failure to follow R v Pearce (1998) 194 CLR 610 - principles applicable to finding special circumstances - whether sentence manifestly excessive - application of principles of proportionality and totality.

CRIMINAL LAW - appeal against sentence - robbery with infliction of grievous bodily harm - applicant a juvenile - whether time in custody adequately taken into account when fixing commencement of sentence - whether "planning" was properly taken into account as an aggravating factor - the extent to which sentencing judge needed to take into account youth of applicant - applicable principles.

CRIMINAL LAW - appeal against sentence - cultivation by enhanced indoor means of not less than a commercial quantity of cannabis plants - whether findings by a sentencing judge open - did judge err by assessing objective seriousness when there was no standard non-parole period applicable to the offence - whether sentence manifestly excessive - use of statistics.

CRIMINAL LAW - sentence - parity principle - 3 offences - co-offender sentenced for all 3 by one Judge - Applicant sentenced for 2 offences by second judge - Applicant sentenced for third offence by third Judge - overall disparity of 3 months - no justifiable sense of grievance.

INDUSTRIAL LAW - unfair contracts - jurisdiction of Industrial Court (NSW) - whether contract for delivery of milk is a contract whereby a person performs work in an industry - Industrial Relations Act 1996 (NSW), s 106 PROCEDURE - summary dismissal of proceedings - jurisdictional issue - issue requiring evaluative judgment - application of General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 112 CLR 125 WORDS & PHRASES - "contract whereby a person performs work in any industry" - Industrial Relations Act 1996 (NSW), s 106(1)

CORPORATIONS - application by administrators for directions

PRACTICE AND PROCEDURE - Application to transfer proceedings from Local to Supreme Court - where applicant asserts defence of equitable set-off to Local Court proceedings - equitable set-off without substance - no sufficient reason for removing proceedings to Supreme Court.

Application under Children and Young Persons (Care and Protection) Act 1998 ("the Care Act") for leave to vary or rescind existing care order made on 12 December 2008 - whether since the care order was made "there has been a significant change in any relevant circumstances": Care Act, s 90(2) - whether the plaintiff's claim that four matters are "relevant circumstances" that constitute "significant change" is established in this case - HELD - none of the matters the plaintiff identifies is a significant change in relevant circumstances - discretion to grant leave should not be exercised.

Criminal law - sentencing - murder - joint criminal enterprise - one offender found guilty of two offences of murder after trial - one offender entering plea of guilty to two offences of murder - consideration of standard non-parole period - consideration of principle of totality

CORPORATIONS - application for an extension of time in which to file an appeal under s 1321 of the Corporations Act 2001 (Cth) against the rejection of a proof of debt - HELD - plaintiff's delay in filing appeal inordinate - substantial prejudice to defendants due to delay if leave granted - application dismissed

BANKRUPTCY - control of persons and property of bankrupt - s 124 Civil Procedure Act 2004 - whether garnishee order a security for the purposes of s 58(5) of the Bankruptcy Act 1966 - plaintiff not entitled to relief - garnishee order not a security within the meaning of s 58(5)

SUCCESSION - construction of wills - where the testatrix left her residuary estate to, inter alia, her son and her son's spouse including de facto spouse under a discretionary testamentary trust - where the defendant was the de facto at date of death but since then that relationship has ended - whether the defendant remains a beneficiary under the trust

SUCCESSION - whether informal document intended to be will at time written - whether intended to be will at later date

PROCEDURE - Costs - whether should be paid forthwith - Uniform Civil Procedure Rules 2005, Pt 42 r 42.7

CRIMINAL LAW - procedure - application for stay - particulars alleged - charge of money laundering - dealing with money intending that money will become an instrument of the crime - "structuring" - same activity alleged to constitute the "dealing" and the crime for which money intended to be used as an instrument - dealing also includes "possession" - particulars may be revised - order for stay refused - summons dismissed CRIMINAL LAW - procedure - application for permanent stay - abuse of process - prosecution of money laundering offence when substantive charge of "structuring" available - higher maximum penalty - exercise of prosecutorial discretion - no abuse of process established - summons dismissed

EVIDENCE - client legal privilege - disclosure of confidential communication made between the client and a lawyer - meaning of 'communication' - meaning of 'disclosure' - balance between competing interests.

PROCEDURE - Costs - acceptance by plaintiff of undertakings and abandonment of claims for damages or an account of profits - no hearing on the merits - no conduct by defendants so unreasonable as to justify an order for costs

CONTRACTS - construction - identifying contract terms - building and construction contract. TRADE PRACTICES - misleading and deceptive conduct - whether representations made, whether representations were misleading and whether any loss suffered by reason of misrepresentations

[CORPORATIONS] - Application by Administrators for directions - nature of proceedings - proposal for Deed of Company Arrangement and Creditors' Trust Deed - ASIC Regulatory Guide - Status of Guide - whether "compelling commercial or legal reason" for structure exists - whether such reason may be gleaned from factors other than proposer's intentions - whether reason needs to be "compelling".

CRIMINAL LAW - appeal against conviction - s101.5(1) Criminal Code Act 1995 (Cth) - failure to discharge jury when prejudicial material inadvertently was admitted on behalf of defence at trial - directions to jury regarding delay in removing disputed material from internet - interpretation of the phrase "connected with" - "inconsistent verdicts" - application of the proviso - conviction quashed - new trial ordered. CRIMINAL LAW - leave to appeal against sentence - objective seriousness - foreign convictions as evidence of appellant's character - deterrence - onerous bail conditions - manifest excess.

PRACTICE - reference out - in course of hearing in court - no question of principle.

EVIDENCE - objection - no question of principle.

EVIDENCE - objection - defective in form - alternatively s 135 discretion - rejected - no question of principle.

SUMMARY JUDGMENT: - STRIKE OUT OF DEFENCE-set off defence to summary judgment claim struck out because of defendant's failure to comply with Court's directions and orders-appeal allowed from decision not to grant summary judgment in respect of part of plaintiff's claim where set-off was the only triable issue-set-off for damages for misleading or deceptive conduct or unconscionable conduct is not available against a claim for release of plaintiff's security deposit under a deed of options for lease which provided for return of the deposit if the lease does not proceed-the lease did not proceed.

Costs

CIVIL PROCEDURE - application for order that proceedings be transferred to the Victorian Registry of the Federal Court of Australia - HELD - not in the interests of justice for proceedings to be transferred - alternative forum is not the more appropriate forum - application dismissed

CONTRACT - certainty - negotiations - whether parties had settled proceedings - consideration of first and third limbs of Masters v Cameron [1954] HCA 72 - consideration of parties intentions

Real property - co-owner seeking sale of property pursuant to s 66G of the Conveyancing Act - proceedings on foot in the Family Court - whether current proceedings should be stayed as an abuse of process

CONTRACT:- whether payment of $190,000 by plaintiff to defendant a loan or gift

PROCEDURE - civil - strike out; application to - standing - whether plaintiff's claim was within the exception to s 116(1) Bankruptcy Act 1966 (Cth)

CRIMINAL LAW - Appeal against conviction - Whether separate trials of co-accused should have been ordered - Applicable principles - Whether there was a significant risk that evidence inadmissible against one accused could have turned a potential acquittal into a conviction.

CRIMINAL LAW - conviction appeal - armed robbery - Appellant convicted of two armed robberies and acquitted of third count - appeal against conviction on first count only - Crown relied upon coincidence evidence - relevance of acquittal on third count - whether verdict unreasonable or cannot be supported - verdicts not inconsistent - verdict on first count not unreasonable and is supported by evidence - appeal dismissed APPEAL - Appellant alleged to have confessed to crime on first count after trial but before appeal - Crown relies on evidence of admission on appeal - whether relevant on appeal to s.6(1) proviso or order for retrial under s.8 Criminal Appeal Act 1912

COSTS - Appeal from verdict of $350,000 against both of two defendants - Verdict against one defendant set aside entirely, and against other defendant reduced to $70,000 - Whether provision of s 338 and s 338A of the Legal Profession Act 2004 should be excluded - Whether Bullock or Sanderson order should be made - Appropriate orders as between various parties and proceedings.