Cases and authorities

CONTRACTS - Breach of contract - claim of repudiation but no acceptance or termination - claim for damages for loss of bargain - whether maintainable without termination - CONTRACTS - Readiness, willingness and ability to perform put into issue - whether precondition to cause of action - CONTRACTS - Damages - whether damages for loss of bargain recoverable if contract not terminated - CORPORATIONS - Two shareholders in deadlock - a joint venture contract included provisions to resolve deadlock - whether defendants wrongly activated deadlock procedure - whether defendant shareholders guilty of oppressive conduct - CORPORATIONS - Corporations Act s 232 and s 233 - whether order can be made under s 233 in case of company trustee of unit trust requiring one unit holder to purchase share of other unit holder. - CORPORATIONS - Corporations Act s 181 and s 182 - whether breach of duties of directors can give rise to claim for damages under s 1324(10) where no injunction sought

CORPORATIONS - application for reinstatement of company by plaintiffs aggrieved by de-registration due to outstanding liabilities owed under loan agreement with the company - application for appointment of liquidator to wind up company on its reinstatement - separate application for rectification of register of first defendant to reinstate plaintiffs on register as shareholders - plaintiffs removed from register without notification (and where no compliance with Corporations Act requirement) - whether plaintiffs thereby unfairly prejudiced or oppressed - HELD - reinstatement of debtor company ordered - company to be wound up upon reinstatement - liquidator appointed - rectification of share register of first defendant ordered - compulsory purchase re plaintiffs’ shares - EVIDENCE - where onus of establishing consent or lack of consent to share cancellation lies on application for rectification of register

CRIMINAL LAW - Application by accused for verdicts of acquittal by direction - charges of murder and wounding with intent to cause grievous bodily harm - significant gaps in Crown case - inferences upon which finding of guilt could be made not available to jury - a finding of guilt would involve speculation not inference - jury directed to enter verdicts of acquittal.

PROCEDURE – pleadings – amendment – statement of claim – Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59 – application to file fourth further amended statement of claim refused – primary judge took into account statutory considerations – just and efficient disposal of proceedings – no error in refusing application to amend

CORPORATIONS - arrangements and reconstructions - scheme of arrangement between a company and its members other than acquirer, a named associate of acquirer, any "subsidiary" of acquirer and anyone holding securities on behalf of or for the benefit of acquirer, its named associate or any "subsidiary" of acquirer - application for approval of scheme - need for amendment to define with precision members not bound - such amendment within s 411(6) power to approve subject to amendment

PROCEDURE - Cross-vesting and Transfers - Civil Procedure Act 2005, s 149B(2) - proceedings in the Supreme Court for determination whether a deed between the parties settling earlier proceedings in the Land and Environment Court for compensation for compulsory acquisition by the defendant of portions of the plaintiff's roads that had been determined under the Roads Act 1993 was a bar to current proceedings between the parties in the Land and Environment Court for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 - whether more appropriate for those proceedings to be heard together with the current proceedings in the Land and Environment Court - whether a transfer order should be made

Equity- undue influence- whether son was in a position of influence and ascendency over mother- cheques bearing large sums signed by elderly woman in favour of son and late husband- son claiming that he holds funds beneficially as absolute gift- relationship of dependency and bonds of affection- mother suffering from special mental and physical disadvantage- progressive dementia- son principal carer- no independent legal or financial advice- no error in granting relief in circumstances- whether son exercised undue influence himself- son closely involved and received benefit. Equity- unconscionable conduct- whether transaction "fair just and reasonable"- whether honest subjective motivation determinative where son intending to act for the benefit of mother in carrying out transaction and retaining sums- not determinative where retention of benefit obtained from person with special disadvantage- detailed consideration unnecessary where assertion of absence of legally enforceable protection of mother's needs in transfer.

COURTS AND JUDICIAL SYSTEM - Supreme Court Act 1970 (NSW), s 69 - Supreme Court's supervisory jurisdiction over inferior courts and tribunals - application for supervisory relief in respect of NSW Industrial Court - no jurisdictional error committed by Full Bench of the Industrial Court - Industrial Relations Act 1996 (NSW), s 191 - INDUSTRIAL LAW - New South Wales - Industrial Court - procedure - costs - illness of counsel leading to costs thrown away - Industrial Relations Commission Rules 1996, r 209

TRUSTS AND TRUSTEES - s 63 Trustee Act 1925 - Judicial advice - Judicial advice to trustee as to whether he would be justified in conducting defence of proceedings and in bringing cross-claim - Advice also sought regarding paying costs - Manner of proceeding - UCPR rule 55.

REAL PROPERTY - torrens title - indefeasibility of title - mortgages - registration of forged instrument - mortgagee innocent of fraud - whether mortgage on its proper construction secures a debt - whether mortgagee entitled to assume document properly executed - s128 and s129 Corporations Act 2001 (Cth) - whether in personam remedy against registered mortgagee - subrogation.

PROCEDURE - Subpoena - Objection to production - Statutory privilege under s 170 Police Act 1990 - Whether legitimate forensic purpose - Interrelationship of Police Act 1970 and Uniform Civil Procedure Rules 2005 (NSW) r 1.9(3) - Definition of "privileged information" and "privileged document"

CONTRACTS – agreement for sale and purchase of shares – purchasers subsequently proposed variation of purchase price – sellers agreed to reconsider purchase price – purchasers declined to pay interest on remaining balance of purchase price while awaiting sellers’ response – whether purchasers repudiated the contract by this conduct – whether sellers entitled to terminate without notice – whether sellers in terminating without notice repudiated the contract – turns on the facts – no questions of principle - CONTRACTS – damages – whether purchasers entitled to recover first instalment of purchase price paid – whether purchasers entitled to claim relocation expenses as consequential loss for breach of share sale agreement – turns on the facts – no questions of principle - EMPLOYMENT LAW – whether wrongful dismissal by employer’s termination of contract of employment without notice – compensation in lieu of notice – reasonable period – whether purchasers entitled to claim relocation expenses as consequential loss under employment contract – turns on the facts – no questions of principle

COSTS – application for costs referable to failure by first defendant to serve evidence as ordered by certain date – where plaintiffs sought to enforce the order – whether mediation of no utility in the circumstances – whether costs thrown away as a result – whether first defendant should be ordered to pay the costs – UCPR 42.7(2) -whether order should be made for payment of costs forthwith – costs of motion for discovery – where motion settled – first defendant ordered to pay some costs forthwith – some costs to be costs in the proceedings

INTEREST - compound interest - when applicable - appropriate rate - annual rests - EQUITY - breach of fiduciary duty - equitable jurisdiction to award compound interest - discretion - PRACTICE NOTE SC GEN 16 - guidance - Reserve Bank of Australia cash rate

Damages - Whether plaintiff entitled to any and if so, what form of damages following determination upholding plaintiff's claims under Trade Practices Act 1974 (Cth)

POSSESSION - registered mortgage of lender - indefeasibility - whether lender on notice of agreement before registration - whether personal equity to set aside mortgage - alternatively right to compensation for improvements to property

PROCEDURE - cross-examination of deponent of affidavit - application for inquiry into conduct of liquidator under Corporations Act 2001 - liquidator wishes his affidavit to be read but says he should not be subjected to cross-examination - concurrent application for review of registrar's decision fixing liquidator's remuneration - liquidator's affidavit also relevant to that - whether cross-examination should be dispensed with

Proceedings after conviction – Appeal – Sentence – application of totality principle – partly cumulative sentences – finding of special circumstances not reducing over all non-parole period.

APPEAL – practice and procedure – extension for time to appeal – CRIMINAL LAW – appeal – procedure – notices of appeal – time for appeal and extension thereof – principles relevant to courts decision whether or not to grant extension of time – considerations include reason for delay, proposed grounds of appeal and finality of judicial decisions – whether miscarriage of justice in fixing balance of term less than one-third of non-parole period – whether miscarriage of justice in judge’s misdescription of victim of offence – application for extension of time dismissed

CRIMINAL LAW – Sexual assault – evidence – CRIMINAL LAW – Evidence – competence of person to take oath – unsworn evidence by child – admissibility of matter referred to in unsworn evidence – fundamental defect through manner of receiving unsworn evidence – appeal allowed, matter remitted to District Court for new trial – CRIMINAL LAW – Appeal and new trial – objections not raised in court below – whether leave required to appeal against decision to receive unsworn evidence – reason why matter not raised at trial is important in deciding whether to grant leave under Rule 4, Criminal Appeal Rules – CRIMINAL LAW – Evidence – accused evidence of good character – whether Crown submission prejudicial to accused – overall context of prosecutor’s speech qualified effect of relevant passage – accurate to say that good character evidence is not determinative of the issue of guilt or innocence – no miscarriage of justice – CRIMINAL LAW – Evidence – evidence of good character of accused– whether judge’s directions to jury inadequate or prejudicial to accused – held that it is open to judge to direct jury that they are entitled to take evidence of good character into account – no miscarriage of justice

CORPORATIONS - arrangements and reconstructions - scheme of arrangement between a company and all members other than acquirer and its associates - member with 52% of shares grants option to purchase 19.9% to acquirer - option exercisable in certain circumstances related to emergence of counter-proposal and bettering thereof by acquirer - whether 52% shareholder thereby set aside so as to constitute separate class of members - CORPORATIONS - members' scheme of arrangement - voting by members - whether court should by order specify members' voting rights and cut-off time for recognition of entitlements to vote - no need for court to deal with either matter - discussion of members' voting rights under Part 5.1 where the Part 5.1 body is a "company" - as to cut-off time, court should allow fixing by the company in accordance with regulations accommodating share trading and transfer system

Corporations. Application to set aside demand under s 459G of the Corporations Act. Consideration of whether a claim for money paid under a mistake of fact is a debt. Consideration of when a liability to pay GST becomes due. Demand set aside.

PROCEDURE – application under Uniform Civil Procedure Rules, r 36.16(2)(b) to set aside orders made in defendant’s absence – where partnership dissolved and receiver and manager appointed to realise assets and pay proceeds into court pending finalisation of proceedings – where unjust for orders challenged to stand –further steps for progressing the taking of the partnership accounts and passing of receiver’s accounts

SUCCESSION - family provision order under Succession Act 2006 sought - claim by de facto partner of deceased - duration of de facto relationship is disputed by Defendant – no provision made for Plaintiff in Will - Following the deceased's death, Plaintiff receives benefits from trustee of fund of which deceased was a member - relevance of death benefit payment - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance and advancement - competing claim of beneficiaries - adequate provision not made by Will or on intestacy or both - whether order under Act should be made - as a matter of discretion no order should be made

Procedure under Uniform Civil Procedure Rules 2005 - costs - leave granted, by consent, to the discontinuance of the Plaintiffs’ proceedings - where no determination on the merits - default provision for costs in UCPR 42.19 - approach to costs - whether to depart from ordinary position - need for reason to depart from ordinary position - costs of notice of motion where orders made by consent which result in relief sought being granted by consent - costs of argument as to costs of proceedings where discontinuance

REAL PROPERTY – application to extend caveat under Real Property Act 1900, s 74K – where caveat claimed equitable interest pursuant to charge securing obligations under guarantee and indemnity – whether caveatable interest exists –balance of convenience – where summons does not include claim for final relief – whether bar to extension of caveat - CORPORATIONS – where debtor company in voluntary administration – whether leave required under Corporations Act 2001 (Cth), s 440J to bring caveat extension proceedings – whether proceedings step in enforcement of guarantee of liability of debtor company – whether application to extend caveat “in relation to” guarantee – whether leave to be granted retrospectively – relevant considerations – whether any debt secured by the charge – serious question to be tried that debtor company owes debt to plaintiff subject to guarantee and secured by charge

REAL PROPERTY – application to extend caveat – application made on day of expiry of caveat – where registered mortgagee exercised power of sale – where caveator undischarged bankrupt – interest of registered mortgagee prevails over caveator’s interest – application to restrain completion of sale by mortgagee – no standing or basis to restrain completion – abuse of process – repeated application for interlocutory relief where no material change in circumstances or fresh evidence

COSTS – indemnity costs – offer of compromise – reasonableness of rejection

CONTRACT – construction – commercial agreement – structured equity investment – Guaranteed Portfolio Service – meaning of “fixed income portfolio value” – meaning and effect of formula to calculate value of zero coupon bonds

FAMILY LAW - de facto relationships - adjustment of property interests - s 41(c) Property (Relationships) Act 1984 - Court's discretion to vary or set aside orders made under s 20 - relevance of various factors to exercise of Court's discretion - REAL PROPERTY - s 66G Conveyancing Act 1919 - scope of discretion to refuse order appointing trustees for sale - whether Court has discretion under s 66G to alter the co-owners' property and other legal or equitable rights

COSTS - varying judgment or orders

ADOPTION – application for order – intercountry adoption – arrangements for adoption to be made in accordance with Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) – whether requirements of Convention satisfied

PROCEDURE - Supreme Court procedure - New South Wales - procedure under Uniform Civil Procedure Rules - summary disposal - whether proceedings should be dismissed under UCPR 13.4(1) or pleadings should be struck out under UCPR 14.28(1) - CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - restrictions on Commonwealth and state legislation - laws relating to religion (Constitution, s 116) - where plaintiffs challenged development approval given by local council to Islamic school - whether Commonwealth legislation providing for funding to non-government schools (Schools Assistance Act 2008 (Cth)) infringed s 116 of the Constitution by establishing a religion, imposing a religious observance or prohibiting the free exercise of religion - whether legislation circumvented s 116 of the Constitution - whether state legislation (Education Act 1990 (NSW)) can infringe s 116 of the Constitution and effect of the Australia Act 1986 (Cth) - LOCAL GOVERNMENT - powers, functions and duties of councils generally - powers generally - extent of powers - whether state can delegate power to local councils so that local councils can approve construction of building to be used as school containing place of worship - CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - whether councils have lawful existence - whether Commonwealth Constitution affords councils their existence and legitimacy - whether failure of 1988 referendum to include reference to local government in Commonwealth Constitution relevant - whether ss 106 and 107 of the Commonwealth Constitution preclude the existence of councils - whether s 128 of the Commonwealth Constitution precludes the existence of councils - operation and effect of the NSW Constitution - whether NSW Constitution authorises legislation creating and recognising councils - whether s 220(1) of the Local Government Act 1993 (NSW) invalid and consideration of effect of alleged invalidity - TORTS - nuisance - who may sue for - whether association with no interest in land has standing to sue in nuisance - whether individual can sue in public nuisance - whether individual can sue in private nuisance without having suffered special loss or damage - TORTS - negligence - dangerous and injurious things - whether engaging in hazardous activity of itself constitutes negligence

PRACTICE AND PROCEDURE – Discovery – Obligations of discovery – Verified list of documents – Adequacy of verified list – Whether the plaintiff should be cross-examined on his affidavit verifying the discovery list – Whether the plaintiff should have an opportunity to file a further verified list.

COMMERCIAL ARBITRATION – appeal under s 38(2) of the Commercial Arbitration Act 1984 (NSW) on a question of law arising out of an arbitral award – CORPORATIONS – WINDING UP – Corporations Act 2001 (Cth) s 553C(1)(b) – mutual credit and set-off – in a joint award three arbitrators rejected a contention by the appellant that set-off was not available because dealings with the respondent were not mutual on the basis that the appellant had in transactions with the respondent contracted not in its own right but as trustee – whether the arbitrators erred sufficiently to displace their finding or at all – HELD – the arbitrators did not so err and that the Court would reach the same conclusion

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (“the Act”) s 31 – meaning of the phrase “ordinary place of business” – whether an address where the offices of its Chief Executive Officer and Chief Financial Officer were situated and from where business management and support services, finance support services, safety and environment and human resources management were provided for the defendant’s business nationally was its ordinary place of business – HELD – held that the place was the defendant’s ordinary place of business

CRIMINAL LAW - appeal - leave to appeal against interlocutory orders - discussion of the legislative amendments to Division 3 Part 3 of the Criminal Procedure Act 1986 (NSW) - whether indictment could be presented out of time - trial can proceed given statutory effect of s 129(4) of Criminal Procedure Act 1986 (NSW) - CRIMINAL LAW - consideration of public interest in charge negotiation between accused and the prosecution

CRIMINAL LAW - appeal against sentence - plea of guilty to one count of supply a prohibited drug (ecstasy) on an ongoing basis and one count of supply ecstasy - whether applicant was denied procedural fairness during the sentencing proceedings - whether sentence manifestly excessive.

Criminal Law - sentencing - Commonwealth offences - whether Judge erred in taking into account applicant's record of interview when considering s 16A(2)(h) Crimes Act 1914 - whether error in assessment of likelihood of re-offending - whether sentences manifestly excessive.

Criminal law - appeal - sentencing - whether error in commencement date of sentence - whether error in taking into account breach of parole - whether totality considered - whether Fernando principles taken into account - whether applicant sentenced on basis of preventative detention - whether manifestly excessive

TORT – Negligence – Slip by plaintiff in defendant’s store – Whether error by primary judge in not being satisfied that there was liquid on the floor, or as to causation.

Vendor and purchaser- purchaser's suit for specific performance- vendors issue notice to complete- negotiations occur without agreement that time under notice will not run- neither party attends for completion on date specified in notice- whether essentiality of time waived- whether purchaser's solicitor intimated to vendors' solicitor that they were dispensed from attending on completion- significance of the word "intimation" in relevant authorities- how element of reliance on intimation needs to be established- mere fact that vendors resold at a profit insufficient to justify refund of deposit.

PROCEDURE - additional costs order made pursuant to "slip rule" - no issue of principle

CONTRACT - whether further agreements between the parties replaced or simply varied an earlier agreement - whether subsequent loans repaid or simply supplemented an earlier loan - REAL PROPERTY - Farm Debt Mediation Act 1994 - construction of "farm mortgage" - whether "farm mortgage" refers to mortgage instrument or to security interest or power that mortgage instrument creates in respect of each farm debt - whether s 11 certificate in force - whether a relevant mediation had occurred - whether creditor precluded from taking enforcement action pursuant to mortgage instrument where only mediation that had occurred related to a different debt to that which the creditor claimed justified the enforcement action - STATUTORY INTERPRETATION - principles - whether text of statutory phrase capable of bearing more than one meaning - purposive approach - relevance of consequences of different constructions - remedial legislation - relevance of explanatory note

CRIMINAL LAW - fourth application made - appeal

PRACTICE AND PROCEDURE - Summary judgment - Whether the proposed defence demonstrates entitlement to retain funds - EQUITY - set-off - whether reasonably arguable that a claim for damages based on misleading or deceptive conduct gives rise to an equitable set-off in respect of moneys repayable under Deed

EVIDENCE – business record – whether representation in contemplation of a proceeding – whether coronial inquiry a proceeding – Evidence Act 1995 s 69