Cases and authorities

JUDGMENT AND ORDERS – application to set aside orders made in absence of defendant consequent upon orders after a trial – where no appeal in respect of orders made after trial – whether orders irregular where equipment subject to mortgage and financiers not joined – whether discretion should be re-exercised

CORPORATIONS – determination of separate questions – where plaintiffs entered into litigation funding agreement with defendant in respect of company’s arbitration proceedings – questions of construction of funding agreement – whether funding agreement contained implied term that defendant would act reasonably in determining whether to agree to particular fees or disbursements being recoverable as “Insolvency Practitioner’s Fees and disbursements” – whether funding agreement void for uncertainty if power to give or refuse agreement to particular expense not qualified by implied term to act reasonably – no question of principle - CORPORATIONS – application for leave nunc pro tunc pursuant to Corporations Act 2001 (Cth), s 477(2B) approving liquidators’ entry into costs agreement with firm of solicitors – whether to make an order under s 1322(4)(d) extending time for applying for approval – appropriate form of orders

Stay of proceedings – Proceedings brought in this Court – Whether this Court a “clearly inappropriate forum” – Relevant principles

CRIMINAL LAW – application for leave to appeal – offences of sexual assault contrary to Crimes Act 1900, ss 61I, 61K – two separate bodies of conduct – whether totality of sentences unduly harsh – sentences not manifestly excessive - CRIMINAL LAW – Crown appeal – appeal against sentence – whether sentencing judge failed to adequately determine objective seriousness of each offence – whether inadequate accumulation of sentences – whether failure to apply principles in Pearce v The Queen [1998] HCA 57 – sentencing judge failed to have regard to separate criminality involved in the different offences – re-sentencing required - CRIMINAL LAW – sentence – error in imposition of fixed terms where non-parole periods and head sentences required

CRIMINAL LAW - sentence - firearms - statutory discount for guilty plea - resentence.

CRIMINAL LAW - Appeal against conviction - Miscarriage of justice - Appellant prohibited from putting his case - Rule in Browne v Dunn - Remedies available in criminal trial where rule breached - Availability of exclusion of evidence in New South Wales where rule breached - Generally a matter of last resort in a criminal trial - need to relate remedy to circumstances of particular case

CRIMINAL LAW - sentence - firearms - prohibited weapon - statutory discount for guilty plea - resentence.

CRIMINAL LAW - sentence - money laundering and other offences arising out of identity fraud scheme - whether discount should have been allowed for assistance to authorities - whether sentence on money laundering count manifestly excessive

FAMILY PROVISION – Unequal and allegedly disproportionate gifts to children – Whether primary judge erred in holding that plaintiff had not been left without adequate provision for her proper maintenance and advancement.

Contracts- whether contract of sale under which on completion purchaser obtained fee simple of home unit can be a "Residence Contract" under Retirement Villages Act 1989- (by majority "No"). Contracts- Construction- how far may court construe a provision naming X as grantee to be a mistaken reference to a grant to Y. Conveyancing- Retirement Unit- provision in purchase contract that service company have right to "buy back" unit for original purchase price as adjusted- service company not a party to contract- service company purported to exercise option- submitted this was as agent for vendor- whether option enforceable ("No")- whether affected by Conveyancing Act 1919, s 66ZG (by majority, "Yes")- whether void as restraint on alienation ("No")- held option not exercised. Estoppel- Conventional Estoppel- conduct constituting alleged estoppel predating binding contract- vague representations in favour of non party to contract- no estoppel.

MEDICAL TRIBUNAL – disciplinary proceedings – whether s 37 of the Medical Practice Act 1992 in its pre-2008 form, permits the Tribunal to find that examples of unsatisfactory conduct cumulatively justify a finding of “professional misconduct” – whether a finding of impairment necessarily leads the Tribunal to the decision that a medical practitioner is not competent to practice medicine. PROCEDURAL FAIRNESS – whether the Tribunal denied an unrepresented medical practitioner procedural fairness by limiting cross-examination of witnesses and rejecting questions as irrelevant – whether the Tribunal denied procedural fairness by limiting the evidence that the medical practitioner could adduce where the medical practitioner failed to comply with directions - whether Tribunal gave medical practitioner adequate warning that his conduct during the hearing could be taken into account in making findings. NON-PUBLICATION ORDER – whether Court of Appeal should modify the non-publication order made by the Tribunal.

Corporations Law. Application to set aside statutory demand under s 459 G of the Corporations Act. Offsetting claim said to be a claim by a joint debtor against the defendant. Held no joint debt so no offsetting claim established. Proceedings dismissed.

EQUITY - RECEIVERS - receivers appointed to plaintiffs' hotel businesses and properties - application for interlocutory mandatory injunction for removal of receivers - whether arguable case that appointments invalid - whether balance of convenience favoured granting of relief - no question of general principle - turns on facts

DEFAMATION - assessment of damages - extent of hurt to feelings and effect of defamatory publication upon plaintiff's reputation - DEFAMATION - effect of adverse findings of the plaintiff's credit in relation to assessment of damages - adverse findings made in respect of a plaintiff in the course of a trial not relevant to any award of damages - DEFAMATION - whether publication of articles in relation to the plaintiff after defamatory publication further damage the plaintiff's reputation - relationship between bringing of proceedings in defamation and effect of further publications based upon adverse findings of plaintiff in such proceedings

Property relationships - Default judgment - service - service by post - proof of service - requirements of affidavit of service - requirement to give notice of application for default judgment - application for substituted service - application for ex parte hearing refused

CRIMINAL LAW - pretrial rulings - indictment alleging money laundering and dishonest obtaining offences - s.400.3(1) and s.135(1) Criminal Code Act 1995 (Cth) - application for permanent stay upon grounds of abuse of process - stay refused - Crown seeks to tender expert report of accountant/financial analyst - objection to tender on various grounds - tender of report rejected - Crown to rely upon documents under Foreign Evidence Act 1994 (Cth) - objection to tender on various grounds - objections overruled - application by Accused under s.169 Evidence Act 1995 for order that persons attend to give evidence - application refused - objection to certain evidence on grounds of relevance and under ss.135 and 137 Evidence Act 1995 - objection overruled

Corporations Law. Application under s 459G to set aside statutory demand. Alleged an implied term that would allow a set off by direction of plaintiff of an off setting claim. Held no such implied term. Application dismissed.

SUCCESSION - where three adult sons worked a rural property for 25 years in partnership - where partnership dissolved - where intended share for departing partner not achieved - where deceased made no provision for son/departed partner on basis that he had already received his share - whether provision should be made - notional estate - whether prescribed transaction - whether order designating notional estate should be made

PROCEDURE – Application for leave to appeal – Judgment against each of two defendants on the basis of proportionate liability – One defendant seeks leave to appeal – Whether other defendant a necessary party.

PROCEDURE – Application for leave to appeal – Whether grounds for leave made out.

FAMILY PROVISION ACT - adult daughter - deceased married defendant around the time plaintiff's mother died - dispute between plaintiff and deceased over distribution of mother's estate - court proceedings between deceased and daughter - relevance of court proceedings to daughter's claim

CONTEMPT - penalty - motive of contemnor - contrition - limited financial means - indemnity costs awarded - fine imposed

COSTS - hearing to determine separate question - defendant successful on primary point - order that costs follow the event. COSTS - Addition of second defendant - second defendant a necessary party to proceedings - plaintiff liable for costs of second defendant

PRACTICE & PROCEDURE – where defendant objected to tender of expert report by plaintiff due to non-compliance with the expert witness code of conduct – where report in largely identical terms to another expert report prepared in collaboration with the first expert – report admissible as the genuine opinion of the expert

Common law - tort - personal injuries - construction site - multiple defendants - costs.

WORKERS COMPENSATION – entitlement to compensation – claim for damages at common law – injury received prior to 30 June 1987 – consideration of the application of Part 5 of the Workers Compensation Act 1987 and Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 – Part 5 does not apply – work injury damages as defined in Chapter 7 is limited to claims in respect of injuries received on or after 30 June 1987 - STATUTORY INTERPRETATION – workers compensation legislation – effect of 2001 amendments – Workers Compensation Legislation Amendment Act 2001 – Workers Compensation Legislation Further Amendment Act 2001 – introduction of definitions into the Workplace Injury Management and Workers Compensation Act 1998 – “existing claim”, “new claim”, “new claim matter” and “work injury damages” - WORDS AND PHRASES – “work injury damages”

Environmental Planning and Assessment – public roads – advertising structure on bus shelters – council approval - granted under Roads Act – not under Environmental Planning and Assessment Act. - public roads – approval for advertising structures on bus shelters – granted under Roads Act – not under Environmental Planning and Assessment Act – structures not over public road.

CONTRACT – penalty – tenant’s right to object to rent review conditional on payment of rent and outgoings – unpaid outgoings – loss of conditional right not a penalty - LANDLORD and TENANT – lease of Commonwealth land - tenant not liable to State land tax – tenant’s covenant to make payment in lieu of land tax – subleases – construction of covenant – whether single or multiple tax thresholds - ELECTION – between competing or inconsistent rights – tenant’s right to object to rent review notice conditional on payment of rent and outgoings – landlord’s right to reject invalid notice not election between inconsistent rights - ELECTION – act of agent – no evidence agent knew all material facts – election not established - ESTOPPEL – no evidence of representee’s state of mind – no evidence of reliance – estoppel not established.

CORPORATIONS – application to set aside statutory demand – common ground that statutory demand should be set aside – COSTS – determination of appropriate costs orders – whether to award indemnity costs against defendant – relevant considerations in statutory demand proceedings – where statutory demand based on judgment debt – where grounds for setting aside statutory demand not adjudicated – where plaintiff contended that defendant obtained default judgment and served statutory demand because induced by defendant to believe that action would not be taken without plaintiff’s knowledge – where plaintiff disputed debt based on alleged compromise agreement or existence of valid offsetting claim – plaintiff’s failure to repay money under alleged compromise agreement and to offer to pay remainder of debt into court from outset put defendant to unnecessary expense in defending application – plaintiff to pay defendant’s costs

Practice and procedure. Summary judgment application refused. - Conveyancing, Land Titles under the Torrens system. Forged mortgage. Consideration of whether agent's fraud is attributable to the mortgagee. Consideration of whether Consumer Credit Code and ASIC Act apply to the forged mortgage.

TAXES AND DUTIES - Land Tax - whether land exempt from taxation as land used for primary production - cattle depastured on land - extensive earthworks carried out for a residential subdivision - whether the dominant use was "use for" the maintenance of animals - whether earthworks can be a "use for" residential development - whether the dominant use test applies a comparison between uses that constitute "use for" specified purposes - whether the plaintiff failed the dominant use test

COSTS - application for indemnity costs - application for costs payable forthwith - where plaintiff dismissed points raised in correspondence but subsequently abandoned some claims

REFERENCE TO REFEREE – under Court order UCPR Part 20.14(1) – application by a party to proceedings opposing adoption of Referee’s report on certain matters – PROCEDURAL FAIRNESS – whether Referee utilised a report of an expert the parties had agreed would not be relied upon for purposes of the proceedings – the report, in breach of procedural fairness requirements, had been used as a “check” on cost of work – obligation of Referee to “determine” quantum of liability of lessee under a repair and maintenance provision – requires more than selecting or preferring one expert’s assessment over another – determining quantum requires examination and analysis of basis of relevant material – “quantum” refers to an amount of money payable in damages – not determining maximum allowances for items of work and does not permit indeterminate allowances being made for items of work such as unquantified provisional sums – duty to give reasons – a Referee must identify the basis for or provide an explanation for a particular allowance or assessment of loss and not merely prefer one expert assessment over another

SUCCESSION – STATUTORY WILL – clear “nil capacity” case where person would never have testamentary capacity – estate derived from gift by mother – person looked after by mother and sister – no other possible claimants to person’s testamentary bounty.

PROCEDURE - costs - departing from the general rule - delay - misconduct - order for costs on indemnity basis payable forthwith

GUARANTEES & INDEMNITIES – Personal guarantees on commercial loan – Company debts and mortgages – Default on payment of interest and repayment of loan – Defendant guarantors called upon to remedy company’s default - Possession taken of company properties – No appearance by defendant guarantors – Judgment for the plaintiff creditor against the defendant guarantors. - PRACTICE & PROCEDURE – Civil Procedure Act 2005, s.56 – Defences did not identify any real issue for determination – Delay in the timely hearing of proceedings. - COSTS – Indemnity costs order – Where existing contractual entitlement to indemnity for legal costs.

CORPORATIONS - winding up - statutory demand - demand based on Local Court judgment debt - Local Court makes order for payment by instalments after statutory demand served - four instalments paid - instalment order then set aside - later application for new instalment order refused - third application for instalment order filed but not determined - whether "some other reason" to set aside demand - held not - effect of four instalment payments discussed

CRIMINAL LAW - Appeal against conviction - Setting aside pleas of guilty after conviction - Miscarriage of justice - Plea entered without genuine consciousness of guilt - Plea not a true acknowledgement of guilt - Factors showing lack of integrity of plea - Accused's reliance on solicitor's advice - Failure by legal respresentatives to have agreed facts statement signed - Failure to take adequate instructions.

APPEAL - leave to appeal and appeal orders made from s 20 of the Service and Execution of Process Act 1992 (Cth) staying proceedings in Local Court - Guarantee and Indemnity - whether Supreme Court of Queensland appropriate Court to determine matters raised in Local Court proceedings - whether Queensland proceedings and Local Court proceedings separate or distinct - whether there was an error in exercising the discretion - whether there was failure to take into account or giving sufficient weight to relevant matters - whether there were material errors of fact - whether irrelevant matters were taken into account - no errors shown - leave to appeal refused - costs

PROCEDURE - costs - security for costs - additional security for costs in accordance with s 1335 of the Corporations Act 2001 (Cth) and/or Rule 42.21 of the Uniform Civil Procedure Rules 2005 - company in liquidation - liquidator not party to proceedings - whether Court's jurisdiction is enlivened - whether defendants contributed to the plaintiff's financial position - whether there is strength in plaintiff's case - stultification - delay - further security in relation to past costs refused - further security in relation to future costs ordered - costs

PROCEDURE - Supreme Court procedure - New South Wales - application under Part 14.28 of Uniform Civil Procedure Rules to strike out statement of claim - leave sought to further amend pleading - leave granted - costs

COSTS - application for indemnity costs following late admission of liability - offers of compromise.