Cases and authorities

CONTRACTS - construction and interpretation of contracts - commercial agreements

PROCEDURE - service - substituted service - subpoena to attend to give evidence - requirement for personal service - whether order for substituted service allowed by Uniform Civil Procedure Rules - whether statutory power to dispense with a requirement of the rules is exercisable so as to allow the court to make some other method of service effective

CORPORATIONS – STATUTORY DEMAND – “SERVICE” – Statutory Demand not served in manner prescribed by s 109X Corporations Act – whether informal but effective service – consideration of “informal effective service rule”. - PRESUMPTION OF INSOLVENCY – Whether presumption arises if time for compliance with Statutory Demand expires after winding up application is filed – construction of s 459C(2) and s 459Q – authorities and principles considered – earlier authorities not followed.

COSTS - Parties settle proceedings - previous Anton Piller order - whether indemnity costs justified

CRIMINAL LAW - sentence - evidence - credibility - prior inconsistent statements - failure to put matters to witness - findings of fact by sentencing judge not disturbed unless findings not open - CRIMINAL LAW - sentence - relevant factors - assessment of objective seriousness of offence - whether sufficient weight given to subjective features

CRIMINAL LAW – appeal against sentence – appeals by Crown – whether sentence manifestly inadequate – knowingly taking part in supply of more than large commercial quantity of pseudoephedrine – objective criminality of the offence above mid-range of seriousness – failure to give sufficient weight to standard non-parole period - CRIMINAL LAW – appeal against conviction – Constitutional validity of Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – not inconsistent with Criminal Code (Cth), s 306.2 – not incompatible with exercise of Commonwealth judicial power

CRIMINAL LAW – particular offences – supply prohibited drug – possess prohibited weapon without permit – malicious wounding with intent to cause grievous bodily harm - CRIMINAL LAW – Crown appeal against sentence – standard non-parole period – finding with respect to mid-range of objective seriousness – degree of specificity required – sentence in respect of malicious wounding offence manifestly inadequate – failure to accumulate in respect of firearms offence - CRIMINAL LAW – sentencing – discretion not to intervene where re-sentencing would interfere with rehabilitation process – appeal dismissed

TRUSTS – Transfer of property between family members – Whether evidence established creation of a trust.

PROCEDURE - miscellaneous procedural matters - other matters - motions - plaintiff consents to orders dismissing proceedings against third defendant - question of costs - indemnity costs ordered in part - orders sought to set aside ex-parte order to extend time to serve pleadings on first defendant - orders not set aside - forum - not established that New South Wales is an inappropriate forum - whether pleaded claim is hopeless - not established - motions dismissed

CONTRACT – partly written partly oral – 2004 version signed by defendants 2006 version signed by plaintiffs – no significant difference between them – parties accepted they were bound by terms and acted on them – agreement between two groups of shareholders – whether shares to be issued as unpaid or as fully paid in consideration of work to be done CONTRACT – shareholders agreement – each shareholder entitled to be director or appoint director – quorum for directors meeting required attendance by director appointed by each shareholder – two directors resigned but meetings continued – whether resolutions valid DAMAGES – shares lost as result of breach of shareholders agreement – question of damages for value of shares lost CORPORATIONS – shareholders agreement – conduct in breach of agreement – value of shares EVIDENCE – claim of forgery – standard of proof

PROCEDURE - Supreme Court procedure - cross claims - cross claim filed out of time - leave sought to file cross claim after determination of principal claim - whether prosecution of cross claim is barred by Anshun estoppel - COSTS - plaintiff claims costs should follow the event - HELD - no estoppel - but extension of time to file cross claim not granted - pleading embarrassing and principal proceedings determined - costs ordered to follow the event

SUCCESSION - Testamentary agreements - constructive trusts - whether Plaintiff suffered detriment by not making Testator's Family Maintenance claim DEEDS - Interpretation - requirements for execution FAMILY PROVISION - Testator's Family Maintenance Act - extension of time - whether adequate provision made for the Plaintiff

SUCCESSION - family provision - claim by adult step-daughter - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - factors which warrant making of application - competing claim of beneficiaries.

CRIMINAL LAW - SENTENCE of a juvenile after trial - murder - offence committed in company - unprovoked assault - objective gravity of offence high - whether offender's moral culpability reduced because of background as Sudanese refugee.

CRIMINAL LAW - murder - special hearing - judge alone - whether accused mentally ill at time of killing father

PARTNERSHIP - principles concerning existence of partnership - whether business relationship constituted a partnership entitling Ms Salib to share of capital of business - HELD - no partnership but arrangement whereby Ms Salib provided administrative services in return for commission on profits earnt - RESTITUTION - whether Ms Salib had been overpaid commission by mistake - whether final payment made by Mr Gakas was due to a mistaken belief as to accuracy of calculations concerning Ms Salib’s entitlement or was to determine business relationship between them on a final basis - HELD - final payment was not made under a mistake although earlier payments were made under a mistake

Criminal law - trial - murder - objection to evidence being led of a conversation between the accused and police in which admissions are alleged to have been made - no recording made of conversation - whether "reasonable excuse" established by Crown pursuant to s 281 of the Criminal Procedure Act 1986 for not recording conversation - whether accused "refused" to have questioning electronically recorded - consideration of ss 85, 90 and 138 of the Evidence Act 1995

CORPORATIONS - deregistered company - application for order directing ASIC to reinstate registration - application by person who is director and shareholder - something more required to make him a "person aggrieved" - additional element supplied by his being a recipient of a director's penalty notice under income tax legislation - whether reinstatement "just" - where non-existent company traded for three years - where supposed tax debt non-existent because debtor non-existent - where recipients of directors penalty notices undertake to put company into voluntary winding up if reinstated

PROCEDURE – application for judicial review – constitutional challenge to validity of statute – application to direct compliance with notice to produce – application to direct admissions to be given – Civil Procedure Act 2005 (NSW) s 70(1)(c) - PROCEDURE – application for judicial review – constitutional challenge to validity of statute – application for hearing of separate questions – whether likely to save expense or delay – whether likely to promote efficient allocation of Court resources - PROCEDURE – compliance with notices to produce – obligation of parties and lawyers to facilitate the just, quick and cheap resolution of real issues – Civil Procedure Act 2005 (NSW), s 56 - PROCEDURE – proceedings for judicial review – need to identify grounds on which relief sought – Uniform Civil Procedure Rules 2005 (NSW), r 51.45

CONTRACT – construction and interpretation of contracts – retention of title clause – tripartite commercial arrangement – dealer in insolvent administration – whether vendor or floor plan financier of the dealer has title to the goods – retention of title clause qualified by authority given to dealer to on-sell the goods – words to be given ordinary business meaning

Workers' Compensation - assessment of impairment by injury - appeal - agreed basis of assessment - Appeal Panel adopts different basis without notice to the parties - oral hearing refused - denial of procedural fairness.

CORPORATIONS - winding up - creditors voluntary winding up - special purpose liquidator - application by liquidator for approval under s 477(2B) as applied by s 506(1A) and for directions under ss 511(1)(a) and 511(2) - application made ex parte - whether liquidator should have given notice to committee of inspection or creditors generally - whether liquidator bound to consult with or inform committee of inspection

EQUITY – trusts and trustees – trustees – their appointment, dismissal, estate, etc – discharge of trusts – where only beneficiaries authorise trustee to enter into joint venture with third party to develop and sell trust property in return for payment of its undeveloped value, and then to distribute whole proceeds of payment to or upon direction of beneficiaries – whether beneficiaries retain beneficial interest in real property pending sale by developer – whether trust discharged and extinguished - PROCEDURE – Costs – whether costs should be ordered on indemnity basis

WORKERS' COMPENSATION - appeal to Medical Appeal Panel against Approved Medical Specialist's determination - request for oral hearing denied - denial of procedural fairness

COSTS – vacated hearing – where plaintiff's solicitor given leave to cease to act – where hearing vacated through no fault of defendants – costs thrown away or occasioned by reason of vacated hearing to be defendants' costs in the cause

NEGLIGENCE - duty of care - police officer in Forensic Services Group - psychological injury sustained in the course of work as crime scene investigator - defendant's duty of care not discharged by referral of the plaintiff to a psychologist and general practitioner - duty of care non-delegable - allegation that defendant breached its duty of care by, inter alia, failing to have plaintiff clinically interviewed by a psychologist after psychometric testing - failing to place him on restricted duties and closely monitor him upon return to work - by exposing him to crime scenes when he was unwell - by failing to specifically test for PTSD and by failing to refer him to a psychiatrist - breach of duty denied - breach of duty found - CAUSATION - whether any causal connection between psychological injury and breach of duty - causal connection found - CONTRIBUTORY NEGLIGENCE - allegation that the plaintiff was contributory negligent by, inter alia, failing to disclose his symptoms - contributory negligence denied - contributory negligence found and assessed at thirty five per cent - LIMITATION OF ACTION - causes of action which accrued in 2003 and 2004 not out of time - extension of limitation period for cause of action which accrued in 2001 - DAMAGES - whether there should be a deduction for damage not caused by the defendant's negligence - assessment.

JURIES – defamation – publication – whether evidence of publication by second defendant of matter complained of sufficient to satisfy jury, accepting plaintiff's evidence and disregarding all evidence to the contrary, that plaintiff's claim of publication by second defendant has more probably than not been established – whether evidence no more than a mere scintilla or only capable of giving rise to surmise or conjecture – test not satisfied - issue taken from jury.

Motor Accidents Compensation Act - assessment of claim under Part 4.4 - Guidelines - application for exemption from assessment under Part 4.4 - allegation of false and misleading statements - determination of claims assessor - no approval by Principal Claims Assessor - whether Principal Claims Assessor had regard to requirements of Guidelines.

PROCEDURE - service of initiating process - extension of time for service - no matter of principle

EQUITY - equitable remedies - 1988 loan and mortgage transaction - interest rate 20% - no enforcement action until 2009 - mortgage registered in 2008 - borrower claims action on loan and mortgage barred by Limitation Act - alternatively borrower seeks Contracts Review Act and other equitable relief - claims undue influence - unconscionable conduct - REAL PROPERTY - Torrens Title - lender seeks to exercise the power of sale as registered mortgagee under the Real Property Act - HELD - action on loan statute barred - but lender may exercise powers conferred on registered mortgagee under Real Property Act - loan and mortgage transaction "unjust" and varied under Contracts Review Act - equitable relief granted setting aside on terms as to repayment of principal and reasonable interest

SHIPPING AND NAVIGATION - ships - arrest, possession and sale by mortgagee under chattel mortgage - ownership - registration - bill of sale - effect of the Security Interests in Goods Act 2005 (NSW) and Registration of Interests in Goods Act 1986 (NSW) - whether leave for in rem proceedings required pursuant to Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE — applicant sent a large number of offensive written communications to officers and legal representatives of the respondent — primary Judge made orders restraining the applicant from sending further written communications — source of power to make such orders — whether orders supported by s 61 of the Civil Procedure Act 2005 — whether orders supported by r 2.1 of the Uniform Civil Procedure Rules 2005 — whether too late for respondent to rely on r 2.1 when issue not raised at trial — whether orders supported by the inherent jurisdiction of the Court.

CONTRACT - agreement for provision of movie television channels to pay television operator - meaning of "the Optus Vision retail price for the Movie Channels" - evidence of extrinsic facts - whether mutual knowledge of facts must be actual knowledge - distinction between denotation and connotation

LEASE - construction - exercise of option - validity - service on lessor's agent - nomination of lessee's agent - condition precedent - ESTOPPEL - equitable estoppel established - silence - causation and inducement - intention

EVIDENCE – proposed tender of documents as business records - Evidence Act 1995 s 69(1) – where notes taken by delegate at a forum on domestic violence – whether notes kept "in the course of, or for the purposes of, a business" when taken for the "personal use" of the delegate – where delegate not employed by the putative business - whether business records – tender rejected.

ADMINISTRATIVE LAW - judicial review - grounds of review - jurisdictional error and procedural fairness - decisions of Children's Court Magistrates

WILLS, PROBATE AND ADMINISTRATION – whether document constituted informal will of deceased – where deceased had history of mental instability and made document when contemplating suicide and affected by alcohol and drugs – where document expressed in dispositive and precatory terms – whether deceased had testamentary capacity when made document – whether deceased intended document to constitute will – whether deceased expressed intention that document constituted will some time after making document and had testamentary capacity at the time - FAMILY PROVISION – application for provision out of deceased’s estate under Family Provision Act 1982

SUCCESSION - family provision - intestacy - whether Plaintiff is an eligible person within paragraph (d) of definition - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - factors which warrant making of application - proceedings out of time - nature of provision to which Plaintiff is entitled.

PRACTICE AND PROCEDURE – application for further discovery – no question of principle - PRACTICE AND PROCEDURE – application for interim accounts under rule 46.2 of Uniform Civil Procedure Rules – preliminary question whether applicant precluded from seeking an account to be decided on final hearing

PROCEDURE - challenge to retainer of solicitors of corporate plaintiff - alleged defect in resolution to commence proceedings - CORPORATIONS - removal of director by meeting of the board - constitution and replaceable rules only authorise removal of director by a meeting of members - HELD - director's removal invalid - no proper notice given of meeting to authorise commencement of the proceedings - no valid retainer of solicitors for the plaintiff

BUILDING AND CONSTRUCTION—Home Building Act 1989 Part 2C—joint venture to construct aged person units—one joint venturer contracts with builder to erect units on land—other joint venturer is the registered proprietor of the land—owners corporation acquires title from registered proprietor—whether owners corporation is entitled to the benefit of a statutory warranty enforceable against the builder by operation of s 18D of the Home Building Act 1989

NEGLIGENCE—motor vehicle accident on narrow track—collision between motorcycle driven by appellant and station wagon driven by respondent—appellant injured—primary Judge found negligence not made outAPPELLATE REVIEW—unchallenged physical evidence—evidence supports primary Judge’s findingCOSTS—respondent’s offer of compromise—primary Judge found that the offer contained no genuine element of compromise—respondent’s cross-appeal involves no issue of principle

EVIDENCE – voir dire – defamation – whether second defendant published the matter complained of – relevance - whether material downloaded from a website maintained by second defendant capable of proving publication by that defendant – Printing and Newspapers Act 1973 – whether probative value of material substantially outweighed by danger that it might be unfairly prejudicial – tender rejected.

CRIMINAL LAW - first appellant - whether appellant received an unfair trial because of the use of purported inadmissible evidence - CRIMINAL LAW - second appellant - whether sentencing judge erred in having regard to the fact that the offence was committed in company included actual use of violence and the appellant's record of previous convictions were relevant aggravating factors when sentencing the appellant - CRIMINAL LAW - third appellant - whether the sentence imposed on the second appellant said to be erroneous had the net effect of meaning the third appellant's sentence had miscarried

CRIMINAL LAW – Crown appeal – sentence – attitude to tax fraud – reduction for plea of guilty and assistance – proportion of mandatory term of imprisonment to head sentence – intuitive assessment of manifest error – manifest inadequacy – appeal allowed – sentence increased

CRIMINAL LAW - Crown appeal - leave to appeal against sentence by respondent - whether sentencing judge gave excessive weight to respondent's prospects of rehabilitation and disability - appropriateness of discount on sentence for early plea

PROCEDURE - application for interim payment - construction of s 82(3)(c) of Civil Procedure Act 2005 - burden of proof - EVIDENCE - expert evidence - no weight to be given to expert evidence that is devoid of reasoning

DUST DISEASES TRIBUNAL–claim for damages in Tribunal – cross-claims by defendants seeking contribution from third party–claims resolution process–apportionment determination by a Contributions Assessor-position of cross-defendant which is forced to contribute under the apportionment determination but denies liability–whether necessary for cross-defendant to institute fresh proceedings–whether cross-defendant bears onus of proof–powers of Tribunal in determining cross-claims.