Cases and authorities

Interlocutory injunction to restrain sale of property No question of principle

CONTRACTS - general principles - contract for sale of wheat - commodity delivered to Port Botany then exported - plaintiff/vendor unpaid - purchaser insolvent - whether consideration of $280 per tonne agreed or a higher rate per tonne - whether title in wheat passed to purchaser - upon delivery to purchaser - whether vendor entitled to exercise rights of stoppage in transitu - whether plaintiff holds equitable lien for unpaid purchase price - HELD - consideration is higher than $280 per tonne - title in wheat held by vendor - vendor may exercise rights of stoppage in transitu - but no equitable lien for unpaid purchase price.

PROCEDURE - notice to produce documents - defendants seek production of plaintiffs' litigation funding agreement - pending application by defendants for order setting aside service of statement of claim - whether funding agreement relevant to a fact in issue - whether funding agreement protected by client legal privilege

CRIMINAL LAW - Crown appeal against sentence - whether extent of accumulation was manifestly inadequate - offences were associated with two separate robberies on same day - accumulation is an exercise of discretion - failure to provide greater accumulation did not lead to error - Crown appeal dismissed

CORPORATIONS - winding up - insolvency - s 459F(2) presumption of insolvency arising from failure to comply with statutory demand - where two companies made a joint application purporting to be in accordance with s 459G - where court found that no valid or effectual application under s 459G had been made - whether the only requirement for a valid s 459G application is compliance with 21 day period for filing - whether issue estoppel on validity of s 459G application

Power to award interest

TRUSTS - Superannuation - Whether express trust established - Whether superannuation fund a complying one for purposes of the Superannuation Industry (Supervision) Act 1993 (Cth) - Indemnification of trustees out of the assets of superannuation fund - Pleadings - Admissions - If admissions, should the Plaintiff be able to withdraw admissions

PROPERTY RELATIONSHIPS - De facto relationships - Adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - Contributions made by parties - Evaluation of any non-financial contributions - Whether adjustive orders just and equitable in all circumstances

PROCEDURE - costs - plaintiffs ordered to pay defendant's costs - subsequent application by defendant for gross sum costs order - relevant considerations discussed - whether sufficient evidentiary basis for such order

CORPORATIONS - statutory derivative action - application by qualified person to bring proceedings on behalf of each of two companies - allegations of breaches of duty by directors of each company - allegations of oppressive and like conduct in affairs of one company of which the other a member - whether serious question to be tried - whether in best interests of company that applicant be granted leave - whether applicant acting in good faith - leave to be granted

CORPORATIONS - winding up - insolvent transactions - application by liquidator under s 588FF(1) - need for liquidator to prove insolvency at relevant times - resort by liquidator to s 588E(4) presumption - discussion of matters to be proved to raise presumption - no sufficient proof thereof CORPORATIONS - winding up - misfeasance summons procedure - proof that company funds paid for director's private purposes and benefit - order for recovery from director with interest to be made

CRIMINAL LAW - sentence appeal - relevant factors - whether sentence ought to have been backdated to take account of quasi-custodial sentence served in residential rehabilitation - appeal allowed - sentence backdated to reflect time spent in quasi-custody

MORTGAGEE'S POWER OF SALE - removal of caveat - no possibility of surplus moneys - discretionary considerations - payment into court - undertaking as to damages PRECEDENT - comity - decision of intermediate appellate court of another state - equitable principle - clearly wrong - not followed

CORPORATIONS - application to set aside statutory demand on the basis of some other reason pursuant to s 459J(1)(b) or defects causing substantial injustice pursuant to s 459J(1)(a) - HELD - neither existence of appeal on arguable grounds nor claimed entitlement to stay sufficient of itself to require statutory demand to be set aside - defects identified in statutory demand not such as to cause substantial injustice - if judgment debt paid into court or otherwise secured, this together with existence of appeal on reasonable grounds would provide some other reason why demand should be set aside - conditional order for the setting aside of the statutory demand to be made

PRACTICE AND PROCEDURE - Application to have defences struck out - Whether test in General Steel softened by s 56 of the Civil Procedure Act - Whether defence of statutory immunity of quarantine officer open to be raised by the Commonwealth

Common law - indemnity costs - no issue of principle.

CRIMINAL LAW - appeal against sentence - various offences of obtaining a financial advantage - breach of trust - substantial sum of money obtained - whether sentences were appropriately structured - whether overall sentence manifestly excessive

CORPORATIONS - winding up - application for winding up in insolvency based on non-compliance with statutory demand - defendant alleges non-receipt of statutory demand - service by post proved - presumption of insolvency therefore available - no attempt by defendant to prove solvency - relevance of non-receipt of statutory demand to exercise of discretion whether to order winding up - no basis to exercise discretion against making of order

EQUITY - Fiduciary Obligations - employer directed employee to develop the business of a wholly owned subsidiary - whether employee entitled to refuse on basis not employed by subsidiary - employee developed the business of his company and other companies rather than the subsidiary - whether a letter allowing him to continue efforts of a further company extended to the companies benefited - calculation of equitable compensation and account of profits

PROCEDURE - Civil - pleadings - application to amend - application to adduce fresh evidence - application under Civil Procedure Act 2005, s 61 for dismissal with costs - dilatory preparation of appeal COSTS - vacation of hearing date - indemnity costs - abandonment of issues - costs thrown away

PROCEDURE - civil - whether agreement to settle appeal had been made - jurisdiction to decide - Civil Procedure Act 2005 (NSW), s 73 - jurisdiction of single judge of appeal - Supreme Court Act (NSW), s 46. CONTRACT - whether agreement to settle appeal had been made - whether settlement was inclusive of costs - against background of preceding course of offers, was inclusive of cost.

Common law - personal injury - construction site accident - liability for subcontractor - damages - insurance.

CORPORATIONS - constitution and replaceable rules - types of companies - construction of constitution - company incorporated for multiple occupancy living in a rural environment - dispute about members' right to use common property for grazing cattle - constitution does not grant a right to graze cattle on common property to members - whether resolution of members passed in March 1999 is effective to withdraw permission to graze cattle on common property - whether resolution modifies class rights in contravention of procedure prescribed under the company's constitution - whether company's affairs conducted oppressively - application for winding up company adjourned so parties can modify their affairs on the basis of the Court's judgment - HELD - resolution not effective to withdraw permission to graze cattle resolution is not a rule or regulation under memorandum of association clause 2(a)(iii) - no interference with class rights TORTS - trespass - trespass to land - defence of licence to enter property - whether defendants liable in trespass to the company for grazing their cattle on common property - HELD - defendants not liable in trespass as existing permission to graze cattle on common property not validly withdrawn by members resolution of March 1999 CONTRACTS - general contractual principles - whether company has breached contract with member by failing to issue lease to member in conformity with company's constitution - HELD - no breach found MISLEADING AND DECEPTIVE CONDUCT - whether company misled members about the right to graze cattle on common property - HELD - no misleading or deceptive conduct found.

SECURITY FOR COSTS - diplomatic immunity - personal right of action for defamation - not in exercise of consular function

SOLICITOR'S LIEN - unpaid costs - Section 728 of Legal Profession Act - appropriate conditions - relationship with Solicitors Rules

PROCEDURE - Civil - pleadings - amendment - refusal to allow amendment - application for leave to appeal - application to vacate hearing date - no question of principle

PROCEDURE - application to stay execution of judgment pending appeal proceedings - whether stay should be granted - whether appeal has reasonable prospects of success

CRIMINAL LAW – appeal – sentencing – dangerous driving causing death – sentenced to 300 hours community service and disqualified from holding driver licence for 12 months – Crown appeal based substantially on alleged error in finding defendant not in a hurry and not speeding, with consequential or additional error in assessing low level of moral culpability and inadequacy of sentence – no impairment of offender’s driving ability – evidence of statements at the time by offender that he was late, in a hurry and should not have been speeding – gave evidence that not in hurry and to best of his knowledge not speeding – judge found distressed and upset at the time – no objective evidence of excessive speed – judge found not in a hurry – evidence of statements at the time not uniform – on analysis, statements lacked rationality – judge found momentary inattention or misjudgement – necessary to show error within principles stated in House v The King – findings reasonably open to judge – judge did not automatically reason to low level of moral culpability – assessment of low level of moral culpability open – no errors in relation to other grounds – sentence not manifestly inadequate.

REAL PROPERTY – Strata Title – management and control – where lot owner’s use of lot causes damages to another lot owner and to walls of other lot being common property – inquiry as to damages – whether first lot owner liable to compensate other lot owner and/or owners corporation to whose lot first owner caused damage – duty of owners corporation to maintain common property

SUCCESSION – Family provision and maintenance – jurisdiction – extra-territoriality – whether statute purporting to authorise family provision order in respect of property outside NSW of testator who dies domiciled outside NSW is valid exercise of state’s legislative power – whether statute can be read down – summary disposal - whether testator arguably left potential notional estate in NSW – whether de facto control of trustee company whose subsidiaries hold real estate in NSW amounts to power to dispose of that real estate within (NSW) Succession Act, s 76(2)(a) – whether director a company has power to dispose of company’s assets with s 76(2)(a)

CONTEMPT – motive of contemnor – aggravating factors – admission of contempt – indemnity costs awarded – fine imposed – good behaviour bond – framing of bond to meet particular conduct

FRAUD – “IDENTITY THEFT” – Bank defrauded of more than $1.1M via telephone banking and on-line banking – whether First Defendant was the fraudster. - TRACING – whether Second Defendant received any proceeds of the frauds with knowledge of the frauds – whether Second Defendant accountable as trustee.

CONTRACT – formation – whether agreement made – whether an intention to create a binding legal obligation to share losses from development project – effect of statements made at informal family gatherings

CRIMINAL LAW - Crown appeal - importation of marketable quantity of cocaine (1.431 kg) - offender's role - not low in heirarchy - breach of trust - Qantas employee used security clearance - sentence manifestly inadequate - issue of parity with co-offender - sentenced by reference to offender's sentence - no Crown appeal against co-offender - discretion to intervene - application s68A Crimes (Appeal and Review) Amendment (Double Jeopardy) Act

CRIMINAL LAW – aggravated sexual intercourse without consent – act of indecency – context evidence – test of admissibility – tendency evidence – test of admissibility – purpose of tender – test not applied – new trial ordered - CRIMINAL LAW – aggravated sexual intercourse without consent – proof of lack of consent – alternative verdict available - CRIMINAL LAW – sexual offences – unreasonable verdict – test of unreasonable verdict – verdict not unreasonable

WORKERS COMPENSATION – claim by injured worker against his former employer seeking damages for injuries sustained in a work accident - time limitation – leave of the court required for proceedings brought more than three years after the date the injury was received – inability of respondents to pursue a cross-claim for contribution against third party because the limitation period had expired – whether primary judge was correct to find that the respondent had been prejudiced, given that respondent had made no claim for indemnity against third party under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW)

LANDLORD AND TENANT - option to renew a registered lease for a three-year term – option exercised – landlord served a notice under s 129 of the Conveyancing Act 1919 (NSW) alleging breaches of its renewed lease – whether landlord had terminated lease – whether landlord had made an unequivocal demand for possession or communicated unequivocally that the lease was at an end - COSTS - neither party identified correct issue at trial – appropriate cost orders where the appellants succeeded on a point not taken at trial

EQUITY - claim by plaintiff that company shares held on constructive trust for him - trust said to arise on application of principles considered in Barclays Bank v Quistclose - claim by plaintiff that company holds moneys paid to it allegedly by way of loan on trust for him - claim for an account of benefits obtained by first defendant from ownership of shares - claim for an account of benefits made by company's use of funds said to have been the subject of loan to company - claim for moneys said to be owing by way of loan to company - consideration of requirements for Quistclose trust - whether first defendant owed fiduciary obligations to plaintiff - HELD - no trust over shares - no trust over moneys as claimed - no moneys owing by company by way of loan as claimed - no entitlement to account - plaintiff’s claim dismissed

PRACTICE and PROCEDURE - applications to set aside notice to produce issued in relation to plaintiff’s application for removal of special purpose liquidator - principles concerning when notices to produce will be set aside - HELD - both notices to produce set aside in part

CONTRACT – indemnity – construction of insurance policy – expenses and costs in defending negligence action where ancillary claims under Trade Practices Act – all costs and expenses indemnified – orders accordingly

CORPORATIONS – construction of constitution of registered managed investment scheme – operation of provisions governing redemptions of units – where constitution provided for staggered redemptions of units at particular dates – where scheme illiquid at redemption dates – whether redemption right suspended during illiquidity until scheme becomes liquid – effect of Corporations Act 2001 (Cth), s 601KA on members’ right of withdrawal – when redemption is “effected” or “satisfied” – price payable for redemption of units

PRACTICE AND PROCEDURE – Discovery – Proceedings for contribution for damages arising out of bodily injury – Whether the court should exercise its discretion to order discovery – Whether there are special reasons for an order for discovery. - PRACTICE AND PROCEDURE – Interrogatories – Proceedings for contribution for damages arising out of bodily injury – Whether a non-party can be ordered to answer specified interrogatories – Whether there are special reasons that justify the making of an order to answer interrogatories.

PROCEDURE - Costs - indemnity costs - plaintiffs successful - defendants engaged in misleading and deceptive conduct - plaintiff claims indemnity costs - claims defendants' case unmeritorious and conducted in wilful disregard of known facts - plaintiff claims outcome exceeded Calderbank offer - HELD - indemnity costs awarded but only on basis of Calderbank letter.

PRACTICE and PROCEDURE - COSTS - application for costs consequent upon the determination by Hamilton J in November 2007 of a cross-vesting application in relation to Industrial Relations Commission proceedings - consideration of what is the “event” which costs should follow - HELD - BOQ parties should pay the OMB parties’ costs of the cross-vesting applications before Hamilton J as assessed or agreed and payable forthwith - SECURITY FOR COSTS - application by BOQ parties for security for costs in relation to the Existing BOQ matters - consideration of effect of litigation funding arrangements in place - HELD - application dismissed subject to provision of a written undertaking by litigation funder to meet any adverse costs order that may be made in BOQ’s favour - STRIKE OUT/STAY - application by the BOQ parties to strike out as an abuse of process or stay and/or cross-vest new proceedings which claims are subject of defences in the proceedings commenced by the Bank of Queensland in the Supreme Court of Queensland - application by OMB parties for new proceedings to be heard with existing proceedings - HELD - conditional order made for cross vesting of new OMB proceedings, stayed pending further order or determination by Court as to whether proceedings can be heard together

PRACTICE AND PROCEDURE – Expert witnesses – Conference of expert witnesses before trial – Assumptions of fact to be put to expert witnesses at conference – Questions to be put to expert witnesses at conference. - EVIDENCE – Expert opinion evidence – Basic principle that opinions must be based on assumed facts – Not a function of expert witnesses to make opinions based on their own unstated findings of fact from evidence provided to them

PROCEDURE – slip rule – Uniform Civil Procedure Rules 2005, Pt 36, r 36.17 – removal of caveat – ruling that no interest in land but no consequential order for removal of caveat – order made under rule – no variation of costs order

Sentence appeal – offences under ss 24A, 25A and 36Z Drug Misuse and Trafficking Act 1985 – Inherent and aggravating features of offences – Significance of use of “fortified” premises – Whether offences committed in company – Assessment of objective seriousness – Whether applicable sentencing range – Significance of maximum penalty.

CRIMINAL LAW - appeal and new trial - appeal against sentence - fact finding by sentencing judge - no error in rejection of applicant's evidence - assessment of objective seriousness - parity - sentence manifestly excessive