Cases and authorities

CONTRACT -- composite instrument -- contract of sale physically incorporating deed of guarantee -- to be construed together. - DEED -- guarantee -- blank -- principal debtor not named -- ascertainable by construction -- deed valid. - INSTRUMENT -- two contracts incorporated in one instrument -- to be construed together.

SUCCESSION – family provision and maintenance – appeals – where primary judge permitted elderly plaintiff/respondent’s affidavit evidence to be read notwithstanding that she did not attend having been required for cross-examination – where plaintiff resided in remote location and medical evidence that travel was undesirable – where proposed cross-examination would not have resulted in reversal of outcome or reduction of provision below that substituted by Court of Appeal – whether miscarriage of discretion under UCPR r 35.2(3) – held, no miscarriage – where appellant/defendants sought leave to adduce further evidence on appeal to address matters said to have been subject of potential cross-examination at trial –where no sufficient explanation for not calling further evidence at hearing – leave refused – SUCCESSION – family provision and maintenance – principles upon which relief granted – eligibility – dependency – where plaintiff’s need for accommodation was satisfied by provision of a house in which deceased owned two-thirds and she owned one-third share – held, plaintiff was partly dependent on deceased – SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – “proper provision” – significance of promises made and expectations created by testator – moral obligation – court interferes with dispositions in will only to extent necessary to make adequate provision for claimant’s proper maintenance etc – where fee simple granted by primary judge exceeded requirements of adequate provision and life estate would also be excessive, because should plaintiff be compelled or wish to cease to reside there permanently, she would no longer have any reasonable need to remain there and had sufficient assets to relocate – appropriate provision was right to occupy property for purposes of residence and pastoral activities terminable upon death or her earlier ceasing permanently to reside there

Legal Practitioners- discipline- Legal Profession Act 2004- respondent solicitor found guilty of professional misconduct for breach of s 255, misappropriation, misleading statements and acting in conflict of interest- solicitor not struck off roll- additional breach of Rule 12 Legal Profession Conduct and Practice Rules and s 67(2)(a)- Administrative Decisions Tribunal failed to give effect to s 67(3) whereby breach of s 67(2)(a) is professional misconduct- whether Tribunal should have struck the respondent's name from the roll- whether solicitor is likely to be unfit to practice for the indefinite future- findings of Legal Services Division that not permanently unfit not to be lightly disturbed on appeal- whether "ordinary case" of misappropriation or less serious- borderline case- whether proper appreciation of conduct and solicitors' obligations- solicitor's conduct atypical, without evil intent and money repaid- honest belief in authority to utilize funds based on genuine file note- claim that he was indefinitely unfit to practice not made out. Words and Phrases- "misappropriation"- wide ambit of meanings- where honest belief in claim of right.

PROCEDURE – Judges – Disqualification for apprehended prejudgment – Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues on the appeal – Application for judge to disqualify self refused

SUMMARY JUDGMENT - Whether under s 151 of Workers Compensation Act 1987 a father is precluded from nervous shock claim over death of son because they share the same employer

CRIMINAL LAW - trial - murder - objection to evidence of a lawfully intercepted telephone conversation between accused whilst in custody and his father - whether capable of constituting an "admission" - whether evidence should be excluded

Proportionate liability provisions of Civil Liability Act - Whether proportionate liability provisions of Civil Liability Act apply to claims for breach of statutory warranties implied by Home Building Act

ORDERS and COSTS

EMPLOYMENT LAW – covenant in restraint of trade – so-called cascading, ladder or step clause – whether void for uncertainty – whether protection provided by the covenant is more than reasonably required to protect the covenantee’s legitimate business interest – held covenant not void for uncertainty – 12 months reasonably required to protect the covenantee’s legitimate business interest

CORPORATIONS - receivers controllers and managers - receivers appointed out of court - whether sum payable to company is within charge held by receivers' appointor - liabilities of receivers - where company may be susceptible to civil penalty order under Queensland electricity legislation - whether personal liability may attach to receivers - receivers' lien in support of indemnity by company - proposed retention by receivers upon retirement - no demonstrated basis for finding of actual or contingent liability of receivers

Power of removal and appointment of trustee in deed of settlement establishing discretionary trust – appointor (mother) appoints attorney (daughter) by enduring power of attorney – appointor/donor comes to suffer from dementia and to lack mental capacity – directors of trustee company are three sisters of whom the attorney is one – disputation between the three sisters, the two outvoting the attorney on the board of directors of the trustee company – attorney exercises mother’s/appointor’s power of appointment by removing company as trustee of the discretionary trust and appointing a company in which she is sole shareholder and director as trustee in its place – in course of hearing of proceeding brought by the two sisters, the attorney/sister accepts that her company had not been eligible to be appointed as trustee under terms of the discretionary trust and she appoints independent accountant to be trustee – whether she had bound herself as part of a family arrangement not to use her power of attorney to exercise the power of appointment at all – whether appointment of the accountant was in breach of fiduciary duty

CORPORATIONS – application for leave nunc pro tunc under Corporations Act, s 500(2) – first defendant in liquidation – second defendant was principal contractor – work subcontracted to first defendant and plaintiff – plaintiff sought to recover debts owing by first defendant under Contractors Debts Act – where plaintiff obtained default judgment against first defendant and issue of debt certificate under Contractors Debts Act, s 7 in District Court without leave and served notice of claim on second defendant – where plaintiff reached agreement with liquidators regarding pursuing claim against second defendant at own cost – where second defendant raise defence of set-off – whether to grant leave where liquidators consent to leave and no realistic prospect of recovery for other creditors – whether to refuse leave because interfering with principles of rateable distribution between priority creditors – whether to refuse leave because notice of application not given to other creditors

Jurisdiction of Courts (Cross-Vesting) Act 1987

WILL - capacity - AUTHORITY & CAPACITY - inter vivos banking transactions - UNDUE INFLUENCE - unconscientous use of special opportunity -

APPEAL – competency – amount in issue – quantum appeal – bona fide claim for requisite amount – susceptible of reasonable support – appeal competent. - APPEAL – competency – amount in issue—property or civil right of requisite value – employer’s claim to indemnity under Workers Compensation Act s 151Z—civil right – notional pool of damages of requisite value – appeal competent. - DAMAGES—no question of principle.

TORTS - negligence - nature of duty of care owed by appellants as occupiers to ten year old boy who slept over at their premises - Civil Liability Act 2002, ss 5B and 5D - whether risk of boy injuring himself whilst descending from top bunk of bed that did not have a guard-rail or ladder was "not insignificant" - whether reasonable persons in the position of the appellants would have had a guard-rail or ladder installed - relevance of Australian Standards

Mortgages- Torrens System- husband and wife joint tenants- husband arranges mortgage from both but forges wife's signature- whether mortgage binding on husband (by majority, it is)- mortgagee entitled to possession as against wife- wife entitled to compensation under the Torrens Assurance Fund. Consumer Credit Code- where relief available for a statutory mortgagor- whether implied agreement secured by mortgage is a "credit contract". Torrens System- Assurance Fund- s 129 Real Property Act 1900- joint tenants- loss of aliquot share by mortgage by co-tenant- how compensation calculated.

TAXES AND DUTIES - Stamp Duties - agreement to grant 300-year concurrent lease of an interest in a shopping centre subject to retail leases at a premium almost equal to its value and at an annual rent of $1 - put and call options executed with a different entity to acquire the reversion expectant upon the 300-year lease with covenants not to merge the leasehold for at least 50 years - put option exercised - Chief Commissioner assessed agreement to acquire the reversion at market value of earlier reversion expectant upon the retail leases by ignoring the grant of the 300-year concurrent lease under the anti-avoidance provision in the Duties Act 1997, s 24

PRACTICE AND PROCEDURE – application by plaintiffs to discharge or vary orders that have become otiose by way of changing circumstances – where defendant acquired property in breach of fiduciary duty – where orders made for taking of an account and reconveyance of property – where defendant not in jurisdiction and prevented from travelling – where defendant failed to take all necessary steps to allow account to proceed – whether to stay taking of account – orders for account not otiose – court has power to make appropriate orders to complete taking of account if defendant does not participate

PROCEDURE - judgment and orders - setting aside - Defendant filing Defence and Amended Defence - both Defences struck out - Defendant given leave to file further Defence - no Defence filed - default judgment - application to set aside judgment - failure to comply with directions to file evidence in support - application dismissed - further application to set aside judgment - absence of evidence of Defence on the merits - inconsistent pleading in further proposed Defence - evidence of Plaintiff in support of claim unanswered by Defendant - gross delay - no explanation of delay - application to set aside judgment refused.

PARTNERSHIP - whether partnership exists - plaintiff sued defendant for debt - defendant says it is not indebted because the parties were partners - defendant seeks account - consideration of course of dealings between parties - indicia of partnership considered - held: no partnership - judgment for debt in favour of plaintiff

INTERLOCUTORY INJUNCTIONS - Balance of convenience - hardship caused by order preventing defendant from working - strength of case required in circumstances where interlocutory relief is likely to dispose of matter. RESTRAINTS OF TRADE - non-compete clause - interpretation - reasonableness - confidentiality - whether new employer should be joined as party

AGENCY - powers of attorney - aged donor - whether power of attorney void for want of mental capacity of donor - general and enduring power of attorney - general law test of incapacity discussed - whether general law test affected by Powers of Attorney Act 2003 - survey of evidence of lay and medical witnesses - PROCEDURE - challenge to capacity of donor to grant power of attorney - whether review procedure under Powers of Attorney Act 2003 is only available avenue - held not - whether donor must be party to any proceedings - whether donee of challenged power of attorney has standing to maintain like challenge to other powers of attorney

CRIMINAL PRACTICE & PROCEDURE - convicted of murder - schizophrenic - lengthy history mental illness - jury rejected substantial impairment - objective circumstances - significantly impaired - not worst class of case - slightly above mid range - dangerousness - previous conviction for manslaughter - relevance previous convictions.

COSTS – where multiple defendants unsuccessful in proceedings and liable to pay damages to plaintiffs – whether defendants to be jointly and severally for plaintiffs’ costs of entire proceedings – whether more just that second defendant or plaintiff should bear risk of first defendant’s insolvency - COSTS – where defendants did not accept Calderbank offer made by plaintiffs – whether plaintiffs entitled to indemnity costs - COSTS – whether plaintiffs entitled to order in the nature of Bullock order in respect of costs of cross-defendant payable by plaintiffs – whether defendants’ conduct make it fair to impose liability on them for costs of cross-defendant

CRIMINAL – appeal – conviction – whether misdirection in summing up to jury – repetition of part of correct document – principle correctly stated in document before jury – failure to object - CRIMINAL – appeal – conviction – verdict of jury unreasonable or unsupported on evidence – unreliability of witness – Criminal Appeal Act 1912 (NSW) s 6(1) - CRIMINAL – appeal – sentencing – alternate bases for conviction – finding of facts by trial judge – standard of proof - CRIMINAL – appeal – sentencing – murder – manifest inadequacy – assessing seriousness of offence based on facts and inferences of trial judge – objective gravity of offence, aggravating circumstances, prior convictions, offender history

CRIMINAL LAW - Sentencing practice and procedure - Allowance of evidence on appeal where required by the interests of justice - Whether evidence requires intervention by court - Criminal Appeal Act 1912 s 6(3)

CRIMINAL LAW - sentencing - Crown appeal - whether sufficient regard paid to standard non-parole period - whether discount for assistance appropriate

CRIMINAL LAW - Sentencing principles - Sexual assault - Questions of hardship to a third party - exceptional circumstances - Mental illness of offender - Whether failure to take matters into account.

CONTEMPT - Breach of undertaking - whether first defendant's conduct was wilful - whether second defendant was capable of complying with order

COSTS – application to set aside costs orders in probate proceedings – where defendant rejected offers of compromise made by plaintiff – whether to award indemnity costs from date of offers – offer of compromise not made under Part 20, Division 4 of Uniform Civil Procedure Rules because not exclusive of costs – where questions raised by proceedings finely balanced and deceased effectively caused litigation by not making will – defendant did not act unreasonably in not accepting Calderbank offers – costs orders not set aside

CONTRACTS - general contractual principles - construction and interpretation of contracts - franchise - where master franchisee alleged breach of master franchise agreement by master franchisor

Appeal against decision of Local Court Magistrate - speeding offence - speed measuring device - errors of law - procedural fairness - judicial notice - whether discretion not to remit to Local Court

CORPORATIONS - Application to terminate winding up - whether debt the subject of the winding up should be paid into Court - EVIDENCE - whether evidence in relation to debt admissible - admissible on: (1) explanation of general background and circumstances leading to winding up - and (2) application to pay money into Court.

COSTS – application to set aside costs orders in probate proceedings – where defendant rejected offers of compromise made by plaintiff – whether to award indemnity costs from date of offers – offer of compromise not made under Part 20, Division 4 of Uniform Civil Procedure Rules because not exclusive of costs – where questions raised by proceedings finely balanced and deceased effectively caused litigation by not making will – defendant did not act unreasonably in not accepting Calderbank offers – costs orders not set aside

CONTRACT – to leave property by will – effect of – equity. - EQUITY – proprietary estoppel – reasonable reliance – detriment – loss of chance – unambiguous assurance to leave property by will – estoppel established. - ESTOPPEL – proprietary estoppel – reasonable reliance – detriment – loss of chance – unambiguous assurance to leave property by will – estoppel established. - WILL – contract to leave property by – effect of.

Offences under the Listening Devices Act 1984 - s 5(1)(a) causing the prohibited use of a listening device to record a private conversation - s 5(1)(b) causing the prohibited use of a listening device to record a private conversation to which the person is a party - s 6(1) communication of a private conversation obtained in breach of the Act - s 7(1) communication of a private conversation obtained in breach of the Act where a party to a private conversation - s 8(1) being in possession of a record of a private conversation - leave to amend summonses at the close of the evidence where there is a failure to disclose all elements of an offence - whether either of the conversations recorded in breach of the Act were private conversations as defined in s 3 - meaning of causing another to record a private conversation by use of a listening device - whether a corporation is capable of contravening the Act where it is not a party to a private conversation - application of the ‘rules of attribution’ of criminal liability to a corporation for offences in Part 2 of the Act - whether a corporation can be vicariously liable for an offence involving mens rea

PROCEDURE - application made upon affidavit of applicant for which confidentiality granted for the purposes of the hearing - application dismissed - applicant seeks permanent suppression order in relation to his affidavit - two media companies apply for access to the affidavit - whether necessary to continue suppression for the purpose of securing the due administration of justice - private interest and potentially damaging and embarrassing publicity insufficient - where such publicity has already occurred

COSTS - whether relief sought is appropriately brought by an interlocutory process - indemnity principle

PROCEDURE - miscellaneous procedural matters - funds paid into Court under Trustee Act Part IV - application for payment out of court - matters to be established - Held: matters required are established - order for payment made out.

CRIMINAL LAW - appeal against sentence - convicted of reckless wounding - relevance of restitution to remorse - offender living in shared accommodation with victim - stabbing took place within apartment - whether matter of aggravation s 21A(2)(eb) - no reference to standard non parole period or nature of offending in relation to mid range offence - error - whether sentence excessive - s 6(3) Criminal Appeal Act - sustained violence and stabbing - sentence less severe not warranted.

CONTRACT - construction - dispute resolution clause - ARBITRATION - enforcement of award - the phrase "first try to settle" did not express intention that award would not be final and binding

CORPORATIONS – application to set aside statutory demand under Corporations Act, s 459H – whether application brought within time – whether payment by plaintiff made by way of accord and satisfaction of all debts due by it to defendant – whether defendant has offsetting claim for damages exceeding amount claimed in statutory demand – costs

CRIMINAL LAW - whether the trial judge erred in allowing the Crown to reopen the Crown case - whether the trial judge misconstrued the relevant common law principles to be considered in an application by the Crown to reopen its case - whether despite error it can be demonstrated there has been a substantial miscarriage of justice

CRIMINAL LAW - whether the indictment failed to disclose an offence known to law - whether the sentencing judge failed to properly take into account the appellant's mental condition at the time of the offence - whether the sentencing judge failed to have proper regard to matters in mitigation of the sentence to be imposed

PROCEDURE - costs - proceedings by company for order setting aside statutory demand - agreed at hearing that statutory demand should stand but for reduced amount - two offers of settlement - whether non-acceptance was unreasonable - in one case "no", in the other "yes" - various costs orders made

CRIMINAL LAW - sentence - insider trading - guilty plea - whether offender knew that by trading with insider information he was committing a criminal offence - prior good character - delay

Proposed amendments of Statement of Claim after delivery of judgment, problems as to relief sought being raised during hearing - too late to allow further amendments - principle of finality prevailing - registered mortgages entered into without notice of plaintiff's rights - operation of s 37A of Conveyancing Act 1919 - imposition of terms including costs orders not sufficient to compensate for prejudice to defendants