Cases and authorities

CONTRACT - construction - franchise agreements - Master Franchise Agreement by which appellant franchised respondent to grant franchises to others to use the appellant's intellectual property in conducting commercial cleaning businesses - whether respondent entitled to require appellant to consent to Sub-Master Franchise Agreement franchising another company to grant cleaning business franchises CONTRACT - construction - franchise agreement provided that the franchisor's Operations Manual formed part of contract - whether an amendment made by the franchisor to the Operations Manual affected the construction of a particular provision of the franchise agreement

Employment Law - The Contract of Service and rights, duties and liabilities as between employer and employee - Restraint of trade - conflict of evidence as to whether employee rehired on same terms and conditions of previous employment, including post-termination restraints - whether if said sufficient to incorporate post-termination restraints

PROCEDURE - costs - general rule costs follow the event - whether costs should include costs of affidavits read that clearly not relevant - costs incurred in obtaining affidavits not properly and reasonably incurred - order plaintiff to pay defendant's costs of proceedings not including the costs of the affidavits in question and the costs of the submissions as to what costs orders should be made

CRIMINAL LAW - procedure - witnesses - open justice and fair trial principles - "right" to confront accusers - witnesses in fear - public interest immunity and s 130 Evidence Act - anonymous witnesses - inadequate evidence to justify making pseudonym order

PRACTICE AND PROCEDURE - Plaintiff seeks to read affidavit filed out of time - affidavit totals 188 pages - defendants provided with two business days to deal with affidavit before hearing - courts should not operate on basis that lawyers should be expected to work on public holidays and weekends - leave refused.

EVIDENCE - Admissibility and Relevancy - advance ruling under Evidence Act 1995, s 192A - expanded use of valuation reports - errors in underlying material - draft report - business records

Local court - appeal - contract - no question of law - appeal dismissed

Administrative Law - motor vehicle accident - damages assessment by claims assessor - no jurisdictional error or error on face of record

Common law - personal injury - application by defendant to strike out or dismiss proceedings - Limitation Act 1969, s50C, 50D(1)(b)(c)

ADMINISTRATIVE LAW - Motor Accidents Compensation Act - Claims Assessor's preference for certain evidence over inconsistent evidence - Browne v Dunn - failure to cross-examine claimants - no error of law - merits appeal - finding as to degree of likelihood of future domestic care - no evidence to support degree of likelihood - no evidence of likely periods that domestic assistance required - error of law - exercise of discretion not to issue orders

COSTS - application for assessment of legal costs after 12 months - Legal Profession Act 2004 s 350(5) - whether "just and fair" for the plaintiff's application for assessment of the defendant's legal costs to be dealt with after the 12 month period - application refused

CRIMINAL LAW - appeal - unreasonable verdict - alibi evidence - requirement to disprove alibi beyond reasonable doubt - requirement to prove guilt to requisite standard as well - inconsistency between evidence of stabbing and alibi evidence - advantage of jury seeing and hearing testimony - verdict not unreasonable

CRIMINAL LAW - sentencing - appeal against sentence - s 61K(b) Crimes Act 1900 - threaten to inflict actual bodily harm with intent to have sexual intercourse - incorrect finding that applicant had not expressed remorse - weight to be placed on offender's unverified statement of remorse - objective seriousness of offence - effect of offender having unusual and irrational motive - effect of court not being satisfied there was an intention to inflict actual bodily harm

CRIMINAL LAW - appeal against conviction - sexual intercourse without consent - failure to give proper direction concerning consent and Appellant's reasonable belief in consent - request by jury for clarification of consent - self-harm after sexual acts - consciousness of guilt - direction required - inadequacy of direction - miscarriage of justice - convictions set aside - new trial ordered.

PRACTICE & PROCEDURE - Felons (Civil Proceedings) Act 1981 - application by prisoner for leave to commence appellate and judicial review proceedings - no prima facie ground for proceedings - leave refused.

MOTOR ACCIDENTS COMPENSATION - Motor Accidents Compensation Act 1999, s 118 - fraudulent claim - false and misleading conduct for purpose obtaining a financial benefit STATUTES - construction - Motor Accidents Compensation Act 1999, ss 118(1) and (2) - construction of "a financial benefit" and "the financial benefit" EVIDENCE - error in factual findings - reasoning based on supposition - reasoning unsupported by facts EVIDENCE - cross-examination - witness' credit - cross-examination erroneously curtailed EVIDENCE - appeal - witness' credit - cross-examination curtailed - appellate court interference with trial judge's credit findings

CORPORATIONS - mortgagee in possession - corporation in business of hiring scaffolding - whether agents of mortgagee ("Controllers") liable under s 419A(2) of the Corporations Act for rent due to third party for scaffolding in possession of corporation - whether third party proved that its scaffolding was in the possession of the corporation at the date of Controllers' appointment - whether the language of s 419A(2) of the Corporations Act extends to the corporation's liability to make payments at the end of a period of hire - whether the primary Judge was correct not to excuse the Controllers from liability pursuant to s 419A(7) of the Corporations Act. TORTS - conversion - whether sale by Controllers of scaffolding constituted conversion - whether damages should be assessed by reference to owner's list prices.

RES JUDICATA - Issue estoppel, Anshun estoppel and equitable estoppel - consent orders previously made by Family Court dismissing application by wife of plaintiff to set aside dispositions to first defendant of interests in real property - plaintiff had sought declaration wife had no claim to relevant property - plaintiff now impugns transfer of property to first defendant on grounds of undue influence and unconscionable dealing - where disposition of allegations raised in submissions to Family Court relating to undue influence and unconscionable dealings not essential to Family Court outcome - such matters nonetheless intimately connected with or arise substantially from same matters of fact - plaintiff was bound to have raised such claims in Family Court proceedings -unconscionable to seek to litigate them now.

MANSLAUGHTER - sentencing offender on basis of substantial impairment - offender assisted his deceased partner to commit suicide - ingestion of amitriptyline tablets and final act of suffocation - deceased had been partner of offender in a loving relationship of 22 years - deceased had suffered pain arising from spinal condition - expressed her wish to die as expressed in suicide note - offender's participation would not have been discovered or established were it nor for offender's disclosures to police- medical evidence established offender suffered a depressive illness/adjustment disorder arising from an underlying condition within meaning of s.23A of the Crimes Act 1900 - sentencing considerations - only motive was to assist deceased in carrying out her express intention - no lengthy period of planning or premeditation - culpability at low end of range of sentences for the offence of manslaughter - leniency extended for offender's disclosures and confession of guilt and for plea of guilty - term of imprisonment of 2 years - suspended sentence - allowance made for time spent in custody of 20 days.

EQUITY - equitable remedies - specific performance - relief against forfeiture - claim for extension of relief against forfeiture of possession of property - relief originally claimed so as to support a decree of specific performance for purchase of the property - decree of specific performance declined - HELD - relief against forfeiture not extended.

CORPORATIONS - share purchase agreement - whether director and company entered into agreement for purchase of director's shares in subsidiary companies of which he was sole director - whether share purchase agreement binding - plaintiffs failed to establish basis on which share purchase agreement impugned - share purchase agreement binding on company CORPORATIONS - contract for service between director and company - whether contract for service binding - where director signed contract for himself and company - terms of contract not considered or approved by directors of company - number of terms of contract contrary to interests of company - directors had agreed to pay director a salary but had not agreed to engage director as a consultant to be paid a fee for services - contract of services not binding on company - director entitled to remuneration paid by company in accordance with company's constitution CORPORATIONS - contract for service between sole director of company and company - whether contract for service binding - where sole director signed contract for himself and company - clear conflict between as a director and duty to company in entering into contract - number of terms of contract contrary to interests of company and could not be justified as reasonable accommodation of both parties - director breached duties as director of company in entering into contract for service - contract not binding on company - contract avoided by service of statement of claim - director entitled to remuneration as resolved by company in accordance with s 202A of the Corporations Act 2001 (Cth) CORPORATIONS - raising capital - whether director engaged in misleading and deceptive conduct that induced investment in company - where some representations made in offer document and warranties contained in subscription deed - falsity of numerous representations not established by the plaintiff - misleading and deceptive conduct established in one of the respects alleged -- no evidence of reliance on representations - claim that plaintiff induced to invest in company by misrepresentation or misleading and deceptive conduct rejected - claim for damages under s 68 of the Fair Trading Act 1987 and s 729 of the Corporations Act 2001 (Cth) rejected CONTRACTS - subscription deed - whether director breached warranties in subscription deed - most breaches of warranties not established - where breach of warranty established not demonstrated that any loss suffered as a result of that breach - entitled to nominal damages for breach of warranty CORPORATIONS - misappropriation of company funds director entitled to receive money as payment of debts owed to him - directors must have expected that he would cause company to pay money he was owed - not liable to make restitution of money received as money reduced debt owed to him CORPORATIONS - oppression - numerous instances of oppression by directors of companies - remedies - whether discretion to order compulsory purchase of shares or to order winding up should be exercised - order to wind up solvent company only as a last resort -not possible to say whether company solvent -no evidence as to value of shares and valuation of shares would be fraught with difficulty, expense and delay - where both parties acted oppressively to each other - appropriate remedy is that company be wound up

APPEAL - criminal - sentencing - failure to apply statutory reduction for plea of guilty - Criminal Case Conference Trial Act 2008 (NSW), s 17(1)(a). APPEAL - criminal - sentencing - whether appeal court required to exercise whole sentencing discretion afresh once intervention required - whether exercise limited to specific point raised by applicant - Criminal Appeal Act 1912 (NSW), s 6(3). APPEAL - criminal - sentencing - variation of sentences of co-offenders on appeal - whether similar variation of applicant's sentence required.

CRIMINAL LAW - Appeal against conviction - Unreasonable verdict - Whether verdicts inconsistent. CRIMINAL LAW - Crown appeals against sentences - Wounding with intent to do grievous bodily harm - Reckless wounding - Whether error by sentencing judge in assessing objective seriousness - Whether sentences manifestly inadequate - Relevance of youth of offenders - Exercise of discretion.

CRIMINAL LAW - conviction appeal - dangerous driving occasioning death - appellant's vehicle entered intersection and collided with vehicle turning across appellant's path - whether jury verdict unreasonable - whether open to jury to be satisfied beyond reasonable doubt that appellant entered intersection against a red light - conviction quashed

Criminal Law - Sentence - armed robbery armed with an offensive weapon - recidivist - mental condition

PROCEDURE - expedited hearing of appeal - stay of execution of writ of possession pending appeal - defaults by appellants in directions for filing submissions and appeal books - case not made out for vacation of hearing date - observations on regarding hearing date and directions as optional - and on assuming vacation of hearing date could be had for the asking.

CRIMINAL LAW - evidence - relevance - whether unfairly prejudicial - alleged murder by member of motorcycle club - evidence of rules and organizational structure of club

PROCEDURE - interlocutory issues - injunction - purported recission for misrepresentation in connection with sale of land - whether purchasers entitled to injunct vendors from taking steps in reliance on a notice to complete - whether court will grant declaration as to right of recission - relief denied

PRACTICE & PROCEDURE - UCPR 13.1 - summary judgment - where plaintiffs advanced money to the defendant - where defences so obviously untenable that they cannot possibly succeed - summary judgment ordered

PROCEDURE - costs - whether respondent ought to pay applicant's reasonable loss and expense incurred in complying with a subpoena issued to him by respondent - respondent ordered to pay applicant's costs - no order made as to costs of applicant's motion to set aside the subpoena

APPEAL - civil - appeal against a decision of the Medical Tribunal with respect to a point of law - Health Practitioner Regulation National Law (NSW), s 162 APPEAL - civil - whether a specialist Tribunal is obliged to draw adverse inference in the absence of an explanation from the respondent MEDICAL PRACTITIONERS - discipline - obligations of psychiatrist - failure to prescribe anti-psychotic medication - failure to schedule patient - whether unsatisfactory professional conduct WORDS AND PHRASES - "reasonably expected of a practitioner of an equivalent level of training or experience", "unsatisfactory professional conduct"

TORTS - negligence - breach of duty of care - foreseeable risk - whether failure to take reasonable care broader than failure to take precautions - Civil Liability Act 2002 (NSW), s 5B(1). TORTS - negligence - breach of duty of care - use of oxyacetylene torch near wall made of straw bales - ignition of hand-packed straw - defendant knew of gap in wall-lining, but did not know what was in the wall - Civil Liability Act 2002 (NSW), s 5B(2). TORTS - negligence - contributory negligence - whether failure of the plaintiff to inform the defendant about hand-packed straw constituted contributory negligence - Civil Liability Act 2002 (NSW), s 5R(1). WORDS AND PHRASES - "failing to take precautions".

ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - certiorari - reviewable decisions and conduct - medical assessment under Motor Accidents Compensation Act 1999 - whether trial judge erred in finding that decision maker asked herself the wrong question - question considered was whether the further information was capable of having a material effect on the previous assessment - correct question ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - certiorari - reviewable decisions and conduct - medical assessment under Motor Accidents Compensation Act 1999 - whether decision maker made a decision affecting rights ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - whether respondent waived right to seek prerogative relief - respondent not debarred on discretionary grounds from obtaining prerogative relief

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - offender armed with a knife - offence committed in the presence of children - violence by road user

CONVEYANCING - land titles under the Torrens system - caveats against dealings - application for order extending operation of caveat - plaintiff claims estate or interest as chargee - where plaintiff's attempt to introduce key documents into evidence fails because the documents are not stamped - lack of stamping also means that documents not enforceable as charge - two particular obstacles in any event to finding that documents if in evidence would be the source of the claimed estate or interest as chargee

PROCEDURE - Discovery and interrogatories - notice to produce - public interest immunity - whether should inspect documents - whether should read affidavit - revelation of methods of operation and identity of sources of information

EQUITY - lien - patent attorney's lien; nature and scope - possessory lien as passive right of retention which does not create charge on property - waiver of lien by subsequent loan agreement. EQUITY - interests - agreement to create a charge constitutes a charge - priorities between equitable charges - intention of parties. CORPORATIONS LAW - duty of liquidator to exercise reasonable care in power of sale - duty of liquidator to obtain best price reasonably obtainable.

CONTRACT - formation - parties - terms - whether joint venture - whether plaintiffs entitled to share of profits. EVIDENCE - witnesses - credibility.

CORPORATIONS - winding up - pending application for winding up in insolvency - subsequent Part 5.3A administration results in resolution of creditors that the defendant be wound up - CORPORATIONS - voluntary administration - second meeting of creditors - resolution for winding up passed on the casting vote of the administrator as chairperson - plaintiff seeks an order setting aside that resolution and an order that the administration end - consideration of factors taken into account by administrator in deciding how to exercise casting vote - whether administrator proceeded in any inappropriate way - held not - proceedings dismissed - observation on inapplicability of recent New Zealand authority to the Australian legislation

SUCCESSION - wills, probate and administration - costs of probate action when Defendant agrees to orders sought at a late stage in the proceedings - whether the probate exceptions to the usual costs order apply - whether the proceedings were caused by the testator - small estate - order made of gross sum to the Defendant out of the estate.

CRIMINAL LAW - sentence appeal - obtain and attempt to obtain financial advantage by deception - Commonwealth offence - 17 companies created to claim fake GST rebates - whether sentence manifestly excessive - close to upper range of objective seriousness - failed to give effect to principle of totality - effect of motive to assist ailing business - excessive accumulation

CRIMINAL LAW: trial by judge alone - murder (2 counts), recklessly inflict GBH - defence of mental illness

Appeal commenced by Summons by the maternal grandmother of two children from decision of Presidential Children's Court - Appeal out of time - Leave to appeal required - No dispute that leave should be granted - Agreement reached by parties - Whether Court satisfied that orders sought should be made

DE FACTO RELATIONSHIPS - adjustment of property interests - s 20 Property (Relationships) Act 1984 - claim for order under s 20 not a debt provable in bankruptcy - no appearance by defendant - parties in de facto relationship for over 12 years - evidence plaintiff made direct and indirect contributions to the acquisition, conservation and improvement of defendant's properties - defendant filed no affidavit of financial position - just and equitable to make order adjusting interests of parties in property - lump sum payment secured by charge over real property

CONTRACT - variation of contract - defence that a written agreement between the plaintiffs and the defendants was varied orally prior to the written agreement being entered into - oral agreement contrary to the terms of the subsequent written agreement - whether it is possible to have a variation of a contract before it comes into existence

PROCEDURE - joint conference of expert witnesses - dispute as to materials to be provided and as to questions to be answered

INDUSTRIAL RELATIONS COMMISSION - no right of appeal to Court of Appeal - purported appeal dismissed as incompetent

PRACTICE & PROCEDURE - Appeal - dismissal for want of prosecution - no question of principle

CORPORATIONS - deregistered company - application for order directing reinstatement of registration - director in receipt of penalty notice issued by Commissioner of Taxation - director wishes to see company reinstated and wound up to avoid personal liability - conditions for ordering reinstatement met - sole member may purport to pass resolution for winding up before reinstatement effected - whether court may prospectively validate that action