Cases and authorities

PROPERTY RELATIONSHIPS – consent orders made under Property (Relationships) Act 1984, s 20 to compromise claim brought by plaintiff – where defendant failed to comply with orders for payment of money and discharge of mortgage within specified period – where orders provided for plaintiff to receive net proceeds from sale of property in event of default by defendant – plaintiff seeking enforcement of orders – whether court has discretion enforce to orders – whether inequitable for court to enforce orders – defendant seeking variation of orders – whether orders to be varied – orders required to deal with defendant’s default – plaintiff appointed trustee for sale

PROCEDURE - Vesting Orders - bank lent moneys to second defendant to purchase property from her mother, the first defendant, loan secured by mortgage over land - before transfer registered, it together with mortgage and certificate of title lost - no defences filed nor payments made after second defendant fell into default - second defendant continued to receive rent - mortgage contained power of attorney to bank upon default - judgment by default - whether upon secondary evidence of lost document bank entitled to order vesting the property in the second defendant under the Trustee Act 1925, s 71(2)(o) - whether entitled to judicial sale of property - whether entitled to appointment of receivers

SENTENCE - Manslaughter in course of robbery - robbery - accessory after the fact - offence committed in 1987 - change in sentencing patterns - effect of rehabilitation in meantime.

CORPORATIONS - application for termination of deed of company arrangement and winding up of first defendant under s 445D - consideration of operation of s 588Y of Corporations Act - HELD - deed of company arrangement terminated and winding up of first defendant ordered

CORPORATIONS - offers of securities requiring disclosure - securities issued without disclosure - disclosure obligation in respect of subsequent offers for sale - securities quoted on ASX - issuer fails to lodge notice with ASX within five business days - notice later lodged - persons offering for sale exposed to liability for non-disclosure - evidence shows that lateness of notice did not cause any material matter to be withheld from the market - validating orders warranted

CRIMINAL LAW - five count of robbery whilst armed with an offensive weapon - Form 1 matters - Crown appeal against sentence on the basis of error and manifest inadequacy - global approach - failure to assess objective gravity each offence - aggravating circumstances not identified - Henry guidelines - accumulation - mental condition - sentences manifestly inadequate - re-sentence - youth.

CRIMINAL LAW - costs - application dealt with on the papers - conviction appeal upheld - whether it was reasonable for prosecution to institute proceedings

CRIMINAL LAW - aggravated break enter and steal - varous offences of theft and dishonesty - multiple Form 1 matters - appeal against sentence - whether sentence manifestly excessive - standard non parole period - whether mid range offences - accumulation - delayed commencement because parole revoked - totality - finding of special circumstances - relative youth of the offender - borderline intellectually disabled.

CRIMINAL LAW - where criminality was of a very serious nature - where offender had a prominent mitigating case - whether the sentence was manifestly excessive - consideration of similar cases dealing with sexual activity offences - discussion of the purpose of the offence of using a carriage service to groom a person under 16 years of age - sentence within range and not manifestly excessive

CRIMINAL LAW - sentencing - Federal offences - Social Security Fraud - whether delay in prosecution a mitigating factor - whether weight should have been given to applicant's ill-health - whether error in individual sentences - whether error in determining non-parole period - whether failure to have proper regard to utilitarian value of guilty pleas - whether sentence manifestly excessive

CRIMINAL LAW - whether sentences were both individually and cumulatively so inadequate that appellate intervention required - sentencing considerations of persons with particularly disadvantaged and deprived background - application of specific deterrence of particular significance in sentencing exercise

CRIMINAL LAW - supply of prohibited drug ss 25(1) and 29 Drug Misuse and Trafficking Act 1985 - appeal against conviction - whether judge's comment suggested accused obliged to give evidence - possessin of drug the only issue - whether direction on inferences adequate - whether verdict unreasonable or unsupported by evidence.

CRIMINAL LAW - procedure - prosecution - information, presentment or indictment -New South Wales - adequacy of charge in identifying offence known to law - interpretation of particulars - INDUSTRIAL LAW - New South Wales - appeals and references - procedure - reference from trial judge to Full Bench of Industrial Court of New South Wales - reliance on alternate head of power - jurisdictional error - INDUSTRIAL LAW - industrial safety, health and welfare - New South Wales - nature of offence under Occupation Health & Safety Act 2000 – originating process and adequacy of charge - Kirk v Industrial Court of New South Wales [2010] HCA 1 - INDUSTRIAL LAW - New South Wales - Industrial Relations Commission - jurisdiction, powers, functions and duties - jurisdictional error - supervisory jurisdiction of Supreme Court of New South Wales over court of limited jurisdiction

PROCEDURE – Application for leave to appeal – Order by primary judge remitting issues to MAS assessors – Assessments made before application heard – Applicant no longer sought the setting aside of the order, but sought the setting aside of judge’s interim findings – Whether such interim findings the proper subject of an appeal.

TORT – Trespass to land – Implied licence to go to door of property for legitimate purposes – Revocation of licence – Requirement of notice of revocation – Requirement that notice be such as to convey to licensee or to a reasonable person in the position of the licensee both that the notice comes from a person with authority to revoke the licence and that it does revoke it. - TORT – Wrongful arrest and false imprisonment – Requirement of s 352(1)(a) of the Crimes Act 1900 that an arrest be effected “immediately after” commission of offence – Process of arrest commenced immediately after commission of offence, not then concluded because alleged offender withdraws inside his house, and concluded afterwards when alleged offender emerges from his house – Whether arrest lawful.

CONTRACT - agreement to settle disputes - held not to preclude claims in relation to matters of which parties unaware at date of agreement.

TORTS – negligence – motor accident – water over road sign placed 924 metres east of water hazard where accident occurred – finding of negligence because water over road sign should have been placed 150 to 300 metres away from hazard – small dip with some water near where water over road sign placed – car drove through water hazard at least 90kph – car aquaplaned – whether negligence in not placing reduce speed sign as well as water over road sign – on evidence negligence in not placing reduce speed sign not established – whether negligent placement of water over road sign was within s 43A of Civil Liability Act – consideration of “so unreasonable that no authority having the special statutory power could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power” – provision imposes a Wednesbury unreasonable standard – consideration of Wednesbury unreasonableness in negligence context – high threshold before Wednesbury unreasonableness found – substitution of “irrational” as test undesirable – test is objective and not focused on decision-maker’s subjective thought processes – placement of water over road sign near understandable – placement may not have been preferable course but not Wednesbury unreasonable – CAUSATION – whether failure to place water over road sign 150 to 300 metres east of hazard caused accident – sign placed 924 metres away must be taken into consideration – driving not changed by that sign – no admissible evidence of effect of sign on driving behaviour – effect of sign on driving a jury question – existing sign would have alerted driver even if hazard 30 seconds away – no inference that sign 150 to 300 metres would have changed driving – causation not found.

COSTS – varying judgment – notice of motion filed – out of time – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) - COSTS – varying judgment – notice of motion filed on basis that judgment should be "no less favourable" to the appellant than the terms of the offer - PROCEDURE – civil – judgment and orders – power to vary order entered – whether power should be exercised when application is not filed within 14 days of judgment being entered – whether court can dispense with the rule in this case – whether whole rule can be omitted with reliance on general law – Civil Procedure Act 2005 (NSW), s 14, Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) - PROCEDURE – civil – judgment and orders – entry – stringency of time limitation – time within which notice of motion can be filed after judgment or order is entered

CORPORATIONS - members voluntary winding up - special resolution for winding up passed with notice of less than 21 days - both members assented - liquidator later resigned - directors purported to pay dividend to holding company - irregular for company in liquidation to do so - but funds reached destination consistent with due progress of winding up - no injustice - curative orders made

CONTRACTS - general contractual principles - construction and interpretation of contracts - whether Master Franchise Agreement granted power to master franchisee to enter into ACT sub-master franchise agreement - whether MFA itself permitted sub-master franchises - whether amendment to manual and incorporation of manual into MFA resulted in sub-master franchises being permitted - whether amendment to manual valid under cl 17.3 of MFA

ADMINISTRATIVE LAW - judicial review - denial of procedural fairness - liquor licence - surrender of - application made by licensee without notice to the owner of the premises - no notice given by Liquor Administration Board - right of owner of premises to be heard - decision voidable.

CORPORATIONS - winding up - statutory demand - application for extension of time for compliance - power to extend exists only if valid s 459G application made - no such application made

CONTRACT – commercial agreement – construction – identifying contractual terms – whether costs of bulk excavation earthworks were to be paid as actual or fixed costs - EQUITY – fraudulent misrepresentation – whether payments made were for material which was misrepresented as being excavated from site and disposed of, whether payments made indicated reliance on misrepresentation - EQUITY – fraudulent misrepresentation – whether false invoices were issued by excavation company resulting in overpayment - EQUITY – fraudulent misrepresentation – whether material was misrepresented as contaminated, whether payments made indicated reliance on misrepresentation - EQUITY – fraudulent misrepresentation – whether rate charged was reasonable for removing and disposing of contaminated material - TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) – consumer protection – misleading and deceptive conduct – reliance, inducement and causation – whether false representations were made that material was contaminated

DEFAMATION – Trial by jury – Where the defendants have filed a notice of intention to elect for trial by jury – Where the plaintiff applies to dispense with the jury – Statutory interpretation of s 21 of the Defamation Act 2005 – Whether the Court’s discretion to dispense with a jury is limited – Whether the offensive nature of some evidence to be adduced at trial is grounds for dispensing with jury – Whether the number of DVDs which may be shown at trial is grounds for dispensing with jury – Whether the extent of documents produced prior to trial is grounds for dispensing with jury.

PRACTICE AND PROCEDURE – Discovery – Obligations of discovery – Supplementary verified list of documents – Adequacy of supplementary verified list – Whether Court should set aside previous order that the plaintiff be cross-examined on his affidavit verifying his discovery list – Whether admissions and further discovery made by the plaintiff since the previous order has so changed the circumstances leading up to those orders that they should be set aside.

CRIMINAL LAW – particular offences- assault occasioning actual bodily harm - CRIMINAL LAW –appeal against sentence- cross-appeal by Crown - s 5 (d) Criminal Appeal Act – whether supplying the wrong penalty – whether wrongly taking into account the matters on a form one – whether failing to give proper effect to special circumstances – whether sentence was manifestly excessive

PROCEDURE – Application for leave to appeal – Whether chance of worthwhile result justified the grant of leave.

Practice & procedure - application by self-represented litigant to have defences struck out in defamation action - application misconceived - no matter of principle

CRIMINAL LAW - claim for prerogative relief - summary hearing - charges of affray and being armed with intent to commit indictable offence - failure by police to comply with brief of evidence requirements - brief included ERISP of witness and not witness statement - prosecution application to dispense with brief requirements and for adjournment - defence opposed dispensation application but consented to adjournment - refusal by Magistrate of both prosecution applications - charges dismissed - held that refusal of adjournment constituted denial of procedural fairness - relief granted

CORPORATIONS - ASIC investigation - application by ASIC for extension of freezing orders - whether persons concerned may become liable to pay money to "persons aggrieved" - identification of "persons aggrieved" - balancing of interests - extension ordered

PROCEDURE - application for stay or similar order pending appeal - no grounds of appeal articulated - order refused

ASSOCIATIONS AND CLUBS - formulation of final relief - other relief sought - application to restrain holding of Annual General Meeting - balance of convenience - further relief declined but directions given to ensure meeting proceeds without disadvantage to the plaintffs.

PROCEDURE - costs - maximum costs orders and capped costs - statutory cap on recovery of costs in personal injuries actions - where plaintiff made offer of compromise to defendants which was not accepted - where plaintiff accepted defendants' offer of compromise for the same amount and containing offer to pay costs on the ordinary basis - whether plaintiff entitled to indemnity costs from the defendants to avoid capping of costs in Legal Profession Act

PROCEDURE – civil – judgments and orders – stay pending outcome of related proceedings in different jurisdiction – where parties previously agreed that payment should be made free of any setoff or cross-claim – where applicant largely to blame for delay in related proceedings – strength of applicant’s case in related proceedings – prejudice to respondent if stay granted

DE FACTO RELATIONSHIPS – application for orders to adjust property interests of parties by way of lump sum payment and orders for maintenance under Property (Relationships) Act 1984 – matters to be considered in making adjustments – assessment of financial and non-financial contributions of parties – relevance of party’s likely bankruptcy on assessment of divisible property – relevance of conviction for crimes committed against applicant’s daughter

CRIMINAL LAW – particular offences – drug offences – import traffickable quantity of prohibited drug (heroin) – trafficking commercial quantity of controlled drug (heroin and methamphetamine) – money laundering – CRIMINAL LAW – application for extension of time for leave to appeal – appeal against severity of sentence – role of applicant – not principal – no error in assessment by sentencing judge – CRIMINAL LAW – disparity in sentence with that of co-offender – larger disparity warranted – applicant re-sentenced

PROCEDURE - costs - whether Calderbank letter may be relied upon in proceedings under the Motor Accidents Compensation Act 1999 (NSW)

PRACTICE AND PROCEDURE – application for adjournment – where possibility of party’s bankruptcy – whether proceedings stayed – whether order under s 20 of Property (Relationships) Act 1984 is “provable debt” under Bankruptcy Act 1966

APPEAL - from Local Court - errors of law alleged - whether there was any evidence of breach of contract and/or loss and damage. CONTRACT - general contractual principles - implied terms - breach of contract - contract for security services - whether implied term to ensure no loss - no error by Magistrate shown.

APPEAL - civil - leave to appeal - whether parties reached binding agreement to settle dispute - deed of release - no sufficient basis that appeal would be successful

APPEAL – question of law – dismissal of prosecution case – no misdirection – no error of law. - CRIMINAL LAW – criminal negligence – based on conduct of accused not state of mind. - CRIMINAL PROCEDURE – evidence emerging in defence case – particulars not amended – prosecution not entitled to rely on new case outside particulars. - CRIMINAL PROCEDURE – prosecution bound by conduct of trial – new case not open on appeal by leave.

ADOPTION – SAME SEX COUPLE – Application for adoption of two children by same sex couple – whether, in the particular factual circumstances of the case, it is in the best interests of the children to be adopted – principles discussed – whether consents of birth parents should be dispensed with.

ADMINISTRATIVE LAW - Orders made on 16 July 2010 as to costs - leave to move within 14 days to vary orders as to costs - no motion filed within time - informal telephone application made on 2 August 2010 - motion not filed until 25 August 2010 - not appropriate to extend time, even if power to do so - initial costs order correct in any event

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. - Proceedings not commenced in time. Discussion of whether s29 of Acts Interpretation Act 1901 or s160 of Evidence Act applies.

Building & Construction. Application to set aside determination under Building & Construction Industry Securty of Payment Act 1999. Finding by the court that payment claims and s17(2) notices not served. Determination set aside.

COSTS - one lead plaintiff and seven non-lead plaintiffs - judgment for defendants - whether unsuccessful plaintiffs jointly and severally liable for costs - extent of liability of tutor appointed for lead plaintiff - effect of Calderbank offers - whether plaintiffs unreasonable in not accepting Calderbank offers - the extent to which any parties were entitled to special costs orders.