Cases and authorities

PROCEDURE - registrar's assessment of commission for executor upon passing of first accounts - registrar awards commission under s 86(1) of the Probate and Administration Act 1898 expressed as a percentage of capital realised, income and assets transferred in specie - review of registrar's decision - award of percentage commission to executor is appropriate even in a large estate - no risk of double compensation where executor also involved in litigation on behalf of estate - executors' involvement in litigation part of executorial duties - assessment based on performance of executorial duties - hourly rate not necessary to calculate executor's commission - quantum of award given by registrar appropriate given the executor's 'pains' and 'trouble' in carrying out his duty

Application to have a costs assessment dealt with out of time - prescribed limitation period of 12 months applies after bill given to client - no discretionary power under Legal Profession Act 1987 to allow an application for assessment to be dealt with out of time - application dismissed.

PROCEDURE - motion by defendant for separate determination of preliminary question - question whether limitation defence made out - whether suitable for separate determination

ADMINISTRATIVE LAW - whether initial proceedings affected by jurisdictional error - whether claim under statutory insurance scheme was barred - determination of liability outside prescribed statutory period.

SUCCESSION – ADMINISTRATORS – Appointment of administrator pending determination of substantive proceedings – sought appointment without all parties’ consent – appointment of administrator where there are allegations of conflict and impropriety – appointment of truly independent administrator.

CORPORATIONS – application under Corporations Act, s 473(3) for court to determine liquidator’s remuneration – creditor’s objection to liquidator’s remuneration claim on basis of allegations of misconduct by liquidator – s 473 not an appropriate vehicle for determining creditor’s allegations of liquidator’s misconduct – liquidator’s claim for remuneration reasonable

CORPORATIONS – application under Corporations Act s 500(2) for leave of the court to continue proceedings against company in voluntary liquidation – liquidation a creditors’ voluntary winding-up and not a members’ voluntary winding-up – no appearance by liquidators – indication that liquidators may have purportedly resigned and requested deregistration of company before company’s affairs fully wound up – troubling aspects of winding-up might warrant inquiry by the court under s 536(1)(a) or s 536(3) – notice to liquidators and former directors to make submissions as to whether court should hold such inquiries

PRACTICE – Supreme Court Act 1970 s 84(1) – where defendant engaged in sixty separate proceedings or applications against manifold defendants in the Local Court, the District Court, the Supreme Court, the Court of Appeal, the High Court and elsewhere – proceedings to restrain - whether defendant habitually and persistently and without reasonable cause instituted vexatious legal proceedings – orders made restraining the defendant from commencing or continuing any legal proceedings without the leave of the Court.

MORTGAGES – 66G order for sale of land – co-owner’s signature on mortgage documents a forgery –HELD – equitable mortgage granted over a half interest in property – order made for appointment of trustees for sale of land and vesting of in land in trustees for sale – mortgagee’s costs be paid out of proceeds of sale with a direction that in the first instance those costs be borne out of the first defendant’s share of the proceeds of sale – order that second defendant’s costs of the proceedings be paid out of the proceeds of sale – order for costs against first defendant.

PROCEDURE - legal firm acts for client joint venturers in litigation over joint venture - termination of firm's retainer in litigation - firm claims lien over client file for unpaid fees - application by firm to strike out clients' cross claim - clients seek to file new cross claim - leave granted to file new cross claim - examination of clients' failure to comply with Court orders in joint venture litigation - possibility that clients' new solicitor may be joined as party to the present action - real possibility of conflict of interest if joinder of new solicitor occurs - directions to resolve issue as to whether new solicitor will be joined and as to the clients' access to files in firm's possession

LANDLORD AND TENANT – leases and tenancy agreements – construction and interpretation – option to purchase included in lease – option exercisable within five year term of lease - whether option survives earlier termination of lease – LANDLORD AND TENANT – lessee’s covenants – as to permitted use of land – as to existence of necessary consents for permitted use – whether covenants breached – whether breach capable of being remedied - MISTAKE – equitable remedies – rectification – whether lessee’s covenant as to permitted use should be rectified for common mistake – ENVIRONMENT AND PLANNING – “existing use” rights – whether establishment of tree plantation permitted on land previously used for cattle grazing and pasture protection - LANDLORD AND TENANT – termination of the tenancy – frustration: application of to leases – whether frustration – re-entry and forfeiture – when right of re-entry becomes enforceable – CONTRACTS – discharge and breach – application of contract principles to leases – where lessee’s covenant agreed to be essential term – breach thereof – whether lease terminated for fundamental breach – separateness of right of re-entry and right to terminate contract – Conveyancing Act 1919 s 129(1) relevant to former but not latter - ESTOPPEL – estoppel by convention – whether available in the face of an “entire agreement” clause by reference to pre-contract consensus – whether such consensus existed in fact – ELECTION – principles discussed – whether lessor elected to affirm lease despite lessee’s breach of covenant – LANDLORD AND TENANT – relief against forfeiture – principles discussed – whether court should grant relief against forfeiture to lessee – whether lessor’s exercise of right to terminate was unconscionable – CONTRACTS – implied terms – term requiring good faith – whether implied – whether any such term can qualify express term making lessee’s covenants essential terms – CONTRACTS – implied terms – term requiring co-operation – scope of such term – EQUITY – fraudulent and innocent misrepresentation – alleged misrepresentation by lessee – whether lessor thereby induced to grant lease – causation and reliance – CONVEYANCING – the contract and conditions of sale – terms of contract arising from exercise of option to purchase included in lease – contractual mechanism for determination of price – construction and interpretation - LANDLORD AND TENANT – option to purchase included in lease – implied terms – whether implied term that lessee not entitled to exercise option if in breach of lease covenant – applicability of Conveyancing Act 1919 s 133E to any such implied term – EQUITY – equitable remedies and equitable defences – specific performance – unclean hands – EQUITY – fiduciary obligations – whether fiduciary duties existed – whether such duties breached – knowing involvement in breach – EQUITY – equitable remedies – constructive trust – effect on third party – whether third party with prior equitable interest will be unfairly prejudiced by recognition of constructive trust – whether such prior interest exists - EVIDENCE – where key participants not called to give evidence – available inferences – whether fear of reactivation of criminal charges sufficient explanation

CORPORATIONS – STATUTORY DEMAND – Application to set aside a Statutory Demand – whether demand can be set aside for “some other reason” – whether lack of fair notice of demand constitutes “some other reason” for s 459J(1)(b).

CRIMINAL LAW - appeal against sentence - recklessly cause grievous bodily harm - whether error in considering evidence of remorse - whether error in characterisation of objective seriousness of offence

CRIMINAL LAW - sentencing - jury verdict of manslaughter - provocation - self defence - effects of depression and dementia - discount for plea to manslaughter

CORPORATIONS – STATUTORY DEMAND – Application to set aside a statutory demand – whether evidence that does not provide sufficient particularity of economic loss can qualify as a genuine offsetting claim – no genuine dispute as to existence of or amount of the debt.

Case management - Proceedings determined at first instance - Subject to certain matters primary judgment upheld on appeal - Leave to appeal to the High Court rejected - Sundry matters debated in relation to whether or not matters occurring following the Court of Appeal judgments render certain matters reserved by the Court of Appeal otiose - Second defendant seeks leave to file a cross claim

REAL PROPERTY – easements – construction of right of carriageway – reciprocal rights of carriageway granted over adjoining driveways – whether works and improvements on servient tenement resulted in substantial interference with right of carriageway – owner of dominant tenement entitled to removal of obstruction

INSURANCE – claim for benefit – whether defendants entitled to avoid policy for fraudulent non-disclosure or fraudulent misrepresentation – whether condition of total and permanent disability established – whether plaintiff entitled to relief – turns on the facts – no questions of principle

CORPORATIONS – STATUTORY DEMAND – Application to set aside a Statutory Demand – whether demand can be set aside for “some other reason” – whether sufficient for solicitor, in s 459E affidavit, to depose to matters in relation to the debt of which he has no first hand knowledge – whether solicitor authorised to make the s 459E affidavit on behalf of the creditor states the source of knowledge of matters in relation to the existence of a genuine dispute as to the debt – whether genuine dispute as to existence of debt. - COSTS – Indemnity basis – whether defendant’s solicitors on notice of “glaringly deficient” Statutory Demand are liable to pay costs on indemnity basis.

APPEAL - leave to appeal - statutory construction - no error of law identified - no procedural error - further review not warranted. - PROFESSIONS - Veterinary Practitioners - unsatisfactory professional conduct - duty to give estimate of cost - whether meaning of "veterinary services" question of law - PROFESSIONS - discipline - finding of unsatisfactory professional conduct - failure to give estimate of cost - Briginshaw principle not applicable because matter not of sufficient gravity - principle not applicable because primary facts not in dispute.

PROCEDURE – Appeal to Court of Appeal from order of Appeal Panel of the Administrative Decisions Tribunal dismissing an appeal concerning costs – Whether appeal to Court of Appeal was against “a decision as to costs” – Whether leave to appeal necessary.

COSTS – ordinary rule that costs follow the event to be displaced only if onus satisfied that order should not be made – onus satisfied – unusual proceeding in which leave to appeal refused – no order for costs

Criminal Law - Sentences for killing in the course of robbery and associated robbery after pleas of guilty.

PRACTICE AND PROCEDURE – personal injury from alleged medical negligence – failure to file expert’s report with statement of claim – motion to strike out – previous consent orders issued for filing of liability evidence – not yet failure of due despatch

Common law - personal injury - worksite - negligence - damage.

SUCCESSION - family provision - claim by elderly widower - small estate - Plaintiff left a life tenancy in house property which is not presently habitable - financial and material circumstances of Plaintiff, who suffers from senile dementia - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claim of other beneficiaries - proceedings instituted one day out of time - estate has been fully distributed - order designating property as notional estate - whether there are "other special circumstances" which justify the making of such an order

TAXES AND DUTIES - Stamp duties - share sale deed of scrip for scrip transfer of shares in a NSW company - consideration shares to be held by plaintiff as nominee - declaration of trust in share sale deed by plaintiff as nominee that it would hold the consideration shares in trust for the sellers of the sale shares - whether a declaration of trust over dutiable property - share sale deed dutiable on first execution under the Duties Act 1997, s 12(2) - consideration shares not to be issued until after completion of the sale of the sale shares- whether the consideration shares were future property on first execution of the share sale deed - consideration shares may have been entered in the register of members before first execution of the share sale deed - whether the consideration shares were then identified property or whether completion of the sale of the sale shares was a necessary final step - whether "property", "dutiable property" and "identified property" in the Duties Act include future property - whether the declaration of trust was over the right to the consideration shares

PRACTICE AND PROCEDURE - application for payment of moneys held in a controlled moneys account - impounding of trust property by a trustee - security for costs - discovery

CRIMINAL LAW - sentence after trial - felony murder - objective gravity assessed below mid range - victim shot at close range in the course of robbery - significant subjective circumstances suggesting that drug addiction was not a matter of personal choice - special circumstances.

SUCCESSION - wills, probate and administration - probate and letters of administration - construction of terms of will - gift for charitable or non charitable purposes severed by application of s 23 Charitable Trust Act 1923 (NSW) - uncertainty alleged in defining trust property and distribution mechanism - trust valid

EQUITY - trusts and trustees - liabilities of trustees - proceedings between beneficiaries and trustees - general principles - fiduciary obligations - remedies and procedure - property purchased in name of another but purchase money not provided by that person - no evidence of intention to vest a beneficial interest in the property in the nominal purchaser - second and third defendants hold interests in the property on resulting trust - plaintiff not ordinarily resident in Australia - no contravention of Foreign Acquisitions and Takeovers Act 1975 (Cth) - property acquired by operation of law - exemption under s 12A(6) - second and third defendants encumbered trust property without receiving any corresponding benefits for the trust - second and third defendants breached their duty as trustees not to deal with trust property for their personal benefit and breached their duty of ordinary prudence as trustees - where breaches of trust by several persons contribute to the beneficiary's loss each is liable to pay compensation measured by the amount of loss attributable to their breach - third defendant breached the fiduciary duty he owed the plaintiff not to obtain any authorised benefit from his position as a fiduciary - equitable compensation ordered

CRIMINAL ASSETS – Crimes (Superannuation Benefits) Act 1989 – where defendant employed by the Australian Defence Force in three separate and disconnected periods – defendant misappropriated rocket launchers from his employer during the third period of employment – where defendant's conduct amounted to the commission of corruption offences as defined in the Act – where the Commonwealth sought a superannuation order for the repayment to it of employer contributions or benefits paid to the defendant when so employed - whether the order could extend to recovery of such contributions or benefits made in the first or second periods of employment or was limited to those contributions or benefits received by the defendant in the third period – superannuation order made but limited to the contributions or benefits made during the period when the corruption offences were committed.

TRUSTS - s 63 Trustee Act 1925 – judicial advice – whether corporation removed as trustee of a discretionary trust pursuant to an exercise by an appointor of his power to appoint a new trustee would be justified in defending proceedings taken against it in its capacity as trustee of the trust – question answered 'no'.

Bail s.8A Bail Act - Application under Criminal Code (Cth) - s 8A(1)(b1) - drug offences - relevant quantity of drug - pure quantity is relevant commercial quantity

CONTEMPT – where defendant admitted using a camera to film a witness in court giving evidence in a criminal trial before a judge and jury – where defendant charged with two counts of contempt – whether defendant did an act with the intention of interfering with the administration of justice or in a manner that had a tendency to do so – charges to be proved in accordance with the criminal standard – defendant not guilty of the first charge but guilty of the second charge

PRACTICE AND PROCEDURE – UCPR 12.7(2) – application to strike out defence where not conducted with due despatch – where defendant has failed to attend to orders for discovery – where plaintiff a stranger to the commercial transaction between the defendant and a third party from which the litigation arises - where proceedings effectively stalled until discovery completed – defence struck out

PRACTICE AND PROCEDURE – Civil Procedure Act 2005 – application for interim payment – medical negligence – failure to follow up after surgery for excision of suspicious tongue lesion – competing expert medical evidence on the acceptability or otherwise of the treatment provided - whether a comparison of the plaintiff's claim and the defence permitted a conclusion (i.e. satisfaction) that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – where not possible to be satisfied – order refused

CONTRACTS - General Contractual Principles - Offer and Acceptance - moneys provided to daughter and her partner - whether gift or loan - EQUITY - Equitable Doctrines and Presumptions - judgment obtained against daughter and her partner - partner removed from title to property held with his parents - whether partner held his interest in trust for his parents by oral declaration of trust - whether the raising of the need for writing under the Conveyancing Act 1919, s 23C(1)(b) would amount to a cloaking of a fraud - whether judgment debt could be enforced against one third of net proceeds of sale

TORTS – Trespass to the person – Assault – Prior to assault on plaintiff, plaintiff uses weapon to strike an associate of defendants – No finding by primary judge as to whether this was in self-defence – Whether this material to primary judge’s findings that assault on plaintiff was within a common purpose of the defendants and others, that it was not in self-defence, and that exemplary damages were warranted. - PROCEDURE – Appeal – New trial – Findings of fact not made by primary judge – Whether substantial miscarriage of justice thereby occasioned – Whether new trial should be ordered.

HUMAN RIGHTS – discrimination – racial discrimination – provision of services –police officers summoned to investigate alleged incidents of abuse and assault – alleged failure to act upon and take complaint seriously – availability of claim of racial discrimination against members of Police Force – whether fulfilment of duties constitutes 'service' for purposes of complaint of racial discrimination – whether general law immunity of police officers from actions in tort applies to complaints of discrimination – Anti-Discrimination Act 1977 (NSW), ss 7, 19 - POLICE – duty to investigate alleged criminal offences – duty to protect persons and property – duty to prevent and detect crime – whether fulfilment of duties constitutes 'service' for purposes of complaint of racial discrimination – identification of persons to whom services are provided – Anti-Discrimination Act 1977 (NSW), s 4(1) – Police Act 1990 (NSW), s 6(3) - PROCEDURE – referral of question of law – Administrative Decisions Tribunal – no fact-finding exercise undertaken by Appeal Panel prior to referral – no set of agreed facts – relationship between questions of law and factual circumstances of particular case – difficulty of determining abstract questions with sufficient utility and specificity - WORDS AND PHRASES – "police services" – "racial discrimination" – "services"

COSTS - no question of principle

COSTS - no question of principle

CONTRACTS – Measure of damages for breach – No allegation of termination for fundamental breach – Contract between accountants concerning conduct of accountancy business – Breaches by one in failing to devote all his working time to the business, and in failing to endeavour in good faith to mediate disputes – Company through which business conducted wound up on just and equitable ground – Other party awarded damages extending to the loss of the value of his share in the company and the business – Whether such damages within either limb of Hadley v Baxendale (1854) 9 Ex 341 156 ER 145.

FEDERAL JURISDICTION – “Anshun” estoppel –application determined by Full Court of Federal Court – Federal Court application confined to federal issues - whether unreasonable not to bring State issues as to jurisdiction of Industrial Court in the Federal Court – no estoppel preventing this Court from exercising supervisory jurisdiction over the Industrial Court - ESTOPPEL – issue estoppel – discussion of application of Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 147 CLR 589

LEGAL PRACTITIONERS – discipline - sloppy conveyancing - contracts exchanged with s.66W certificate - solicitor did not interview wife co-purchaser - unsatisfactory professional conduct. - LEGAL PRACTITIONERS – lien for unpaid costs – client’s passport held in connection with bail application - solicitor entitled to lien - limits of lien. - PASSPORT - general property of Commonwealth – grantee has special property - grantee may create lien in favour of solicitor.

LANDLORD AND TENANT - agreements for lease – lease signed and held in escrow - breach - whether sale of shares in lessee was a breach of lease or agreement for lease – no rights or obligations of lessee were assigned by the sale of shares – lease was not operative when shares were transferred - no breach of lease or agreement for lease – no written notice served requiring rectification of alleged breach – alleged breach not a material breach – lessor not entitled to call on bank guarantee - LANDLORD AND TENANT - lease – termination – construction of contract – meaning of “date of execution” - notice of termination of lease by lessee was effective

PROCEDURE - civil contempt of court - contravention of interlocutory "freezing orders" - clear and deliberate breach of orders - breach by corporate defendant - director involved in breach by causing the contravening combat to occur - appropriate punishment for contemnors