Cases and authorities

CORPORATIONS - winding up - creditors voluntary winding up - annual meeting of creditors - meeting adjourned - business remaining is confined to report of special purpose liquidator and possible motions concerning his administration and for reconstitution of committee of inspection - neither of the liquidators by whom the meeting was convened wishes to chair the balance of the meeting - their power to nominate a person to preside will then be exercisable - whether appropriate that special purpose liquidator chair the balance of the meeting - whether appropriate that insolvency practitioner unconnected with the winding up chair the balance of the meeting

CRIMINAL LAW - bail - conspiracy to murder - significant medical treatment requirements of applicant - Crown not oppose bail - stringent bail conditions proposed - bail granted

[CONTRACTS] - Where guarantor related to principals of borrower - Where monies advanced in refinancing corporate business arrangements - Where outgoing lender requires payment out - Where guarantor provides guarantee limited to $650,000 - Whether guarantor's liability limited to debt to pay out outgoing lender - [CONSTRUCTION OF CONTRACTS] - Whether permissable to establish ambiguity in a document not otherwise ambiguous by utilising extrinsic evidence

PARTNERSHIP [8]- Agreement in principle for partnership with additional partner- agreement never materialized- whether additional partner entitled to remuneration. PARTNERSHIP [37]- Winding up- series of partnerships- how goodwill to be treated- how costs of referee to settle accounts to be paid. - RESTITUTION [22]- Quantum meruit- where no contract but understanding between parties that a party will be reasonably remunerated for providing benefit to the other party- where partner in partnership at will received share of profits on basis that other partners thought he would pay for the goodwill of the former partnership under an anticipated contract- whether use of goodwill to produce income is benefit.

REAL PROPERTY – CAVEAT – Plaintiff is second unregistered mortgagee – Second Defendant is registered first mortgagee – whether caveat protecting second unregistered mortgage bad in form because prohibits “any dealing” – effect and construction of s 74H(5)(g) Real Property Act – whether caveat should be extended – discretion.

CORPORATIONS - winding up - winding up in insolvency - application for order setting aside statutory demand - whether genuine dispute as to existence of debt - no matter of principle - whether "some other reason" within s 459J(1)(b) - where s 459E(3) affidavit made by person other than issuer of demand - where authority of that person not shown - where deponent does not identify source of knowledge of matters stated in demand

CONTRACTS - General Contractual Principles - Parties - defendants gave plaintiff a mortgage broker's irrevocable mandate to obtain short term loan - successful application in name of another broker with whose business the plaintiff had amalgamated - whether wrong plaintiff - whether obligations continue under mandate notwithstanding withdrawal of proposed lender - whether offer substantially similar to terms of mandate - mandate gross loan of $515,000 to give net loan of $400,000 - offer for $400,000 net - whether securities different - whether interest different - whether defendants liable to pay service fee in absence of written demand - whether demand sent by email effective - whether service fee irrecoverable because no tax invoice

CORPORATIONS - winding up - winding up by the court - application for leave to commence proceedings against company in liquidation - where claim is for declaratory relief that company's right to recover costs in other proceedings is held by it for itself and plaintiff - proprietary claim by plaintiff - leave granted

SUCCESSION – RECTIFICATION OF WILL – whether the Plaintiff proved the testatrix’s actual intention and that her solicitor made a drafting error.

CORPORATIONS - deregistered company - application for order that ASIC reinstate registration- ASIC notified of application but insufficient time for its response to be received - particular urgency for company's existence to be recreated - order made despite absence of ASIC's response but recognising its susceptibility to be set aside

CAVEAT – application for extension of caveat – whether interest in land claimed by caveat is adequately described – whether agreement granting authority to lodge caveat by implication confers such an interest in land as will sustain caveat – if agreement had been intended to create charge over land that charge would be unenforceable as mortgage duty has not been paid under Duties Act 1997 – form of caveat defective – order that caveat be removed

PROCEDURE - Application for leave to make an application to adjust property interests pursuant to Property (Relationships) Act 1984 – statement of claim filed almost eight years after termination of de facto relationship and almost four years after settlement agreement made – greater hardship would be caused to defendant if leave given than would be caused to plaintiff if leave refused – application dismissed

CRIMINAL LAW - application for leave to appeal against sentence - cultivating commercial quantity of prohibited plant by enhanced indoor means - whether sentence manifestly excessive

Leave to Minister to make submissions as amicus curiae despite delay on terms as to costs - whether restrictive covenant enforceable - correct construction of s 28(2) and (3) of Environmental Planning & Assessment Act 1997 and cl 68(2) of Ku-ring-gai Planning Scheme Ordinance (KPSO) - Operation of LEP 194 - Governor's approval to LEP 194 not required

civil or criminal contempt - access to documents produced under compulsory court process - documents so obtained not to be used for collateral purpose - express undertakings as per standard uplift forms for copying - "implied undertaking" or obligation imposed by law on parties and third parties - all elements of charges to be proved beyond reasonable doubt - person charging contempt electing to proceed by way of civil contempt even if proceedings intially punitive - injunctions granted

PROCEDURE - costs - application of general rule that costs follow the event - no basis demonstrated to displace the application of the general rule

PROCEDURE - Discovery and interrogatories - discovery and inspection of documents - adequacy of plaintiff's response - application for stay or further discovery

CRIMINAL LAW – sentence after trial – manslaughter by unlawful and dangerous act – joint criminal enterprise – unprovoked attack – juvenile offender – finding of special circumstances

CRIMINAL LAW - sentence - two co-offenders - manslaughter by unlawful and dangerous act - pleas of guilty - joint criminal enterprise - unprovoked attack - juvenile offenders - finding of special circumstances

PROCEDURE – Application to strike out and for summary dismissal – submitted that plaintiff ought to have brought relief she now seeks by cross-claim in earlier proceedings - reasons for the plaintiff’s failure to cross-claim and the reasonableness of that position cannot be properly adjudicated on application for summary dismissal – application dismissed

PROCEDURE - costs - right of successful party to obtain costs against defendant who filed submitting appearance - where submitting party brought about the need for the litigation - indemnity costs - whether delinquent conduct in the conduct of the proceedings.

SUCCESSION - family provision - claims by three adult daughters - substantial estate - entirety of estate left to de facto partner of Deceased - claims by two of daughters compromised on sixth day of hearing - finanicl and material circumstances of remaining Plaintiff - lack of contact between Plaintiff and Deceased druing most of her adult life - whether Plaintiff has been left without adequate provision for her proper maintenance - claim by Plaintiff for provision for her advancement in life - competing claim of Deceased's de facto partner of 26 years - relevance of fact or amount of settlement of claims of other two daughters of Deceased.

BANKING AND FINANCE - Credit union seeks judgment for moneys advanced to customer by mistake – credit union inadvertently left line of credit account open after discharging the mortgages securing that account – first defendant liable as borrower under loan agreement – second defendant liable in restitution for moneys received from first defendant’s account - EQUITY – equitable remedies - tracing – some moneys traced to reduction of mortgage debts secured over properties – those properties charged to plaintiff to secure moneys so advanced

ADMINISTRATIVE LAW - whether parole conditions imposing non-association and place restrictions on parolee should be set aside - whether the term "outlaw motorcycle gang" was so uncertain as to be ultra vires - the phrase "specified person" in s 128A of the Crimes (Administration of Sentences) Act extends to the plural - "specified persons" need not be named but can be described by membership of an organisation or class - however, conditions attached to parole should be reasonably precise in order for an offender to understand the requirements they impose - the term "outlaw motorcycle gang" is in current usage and it could be inferred from the evidence that the parolee understood its meaning - no uncertainty or ambiguity found - summons dismissed

CONTRACT – distinction between debt and damages – liquidated damages constitute a secondary obligation and enforceable as such – express terms of contract – proceedings for monies owing - APPEAL – Local Court – error of law – categorisation of monies owing – error not material to outcome – no denial of natural justice – proper opportunity to prepare and to present case – tactical decision to present case without dealing with certain issues

PROCEDURE - Supreme Court procedure - New South Wales - application for access to court file under Practice Note SC Gen 2 - parties directed to supply to the Court a statement of the affidavits that they claim have been read in the proceedings

COSTS - offer of compromise at trial- not renewed on appeal- whether indemnity costs should be awarded at trial and appeal.

CRIMINAL LAW - appeal - offences of dishonesty - sentence appeal - appeal dismissed

CRIMINAL LAW – slavery – fault element – intention as to conduct – intentionally possessing slave – intentionally exercising powers attaching to right of ownership over slave – power to use – whether trial judge erred in directions on intention – direction on three types of intention – Criminal Code (Cth) ss 5.2(1), 270.3(1)(a) - CRIMINAL LAW – slavery – physical element – possessing a slave – exercising powers attaching to right of ownership over slave – power to use – correct use of indicia in establishing actus reus – whether trial judge erred in directions on indicia – Criminal Code (Cth) ss 270.1, 270.3(1)(a)

FAIR TRADING - whether alleged representations made- whether representations, if made, were misleading or deceptive. - REASONS - whether primary Judge gave adequate reasons for finding that the representations were not made and, if made, did not constitute misleading or deceptive conduct- whether a retrial should be ordered.

DEFAMATION - injunctions - application for removal of defamatory statements from websites and restraining the making of future defamatory statements – application made ex parte – reluctance of courts of equity to restrain publication of defamatory statements – no serious question to be tried that at a final hearing the plaintiff would be entitled to injunctive relief as distinct from damages –application dismissed

SERIOUS SEX OFFENDER – application for extended supervision order – statutory requirement is satisfied – no issue of principle – extended supervision order made for 3 years with restrictions on electronic monitoring

SUCCESSION – FAMILY PROVISION – Whether applicants’ desire to provide for the advancement in life of their adult children may be taken into account in assessing the applicants’ claims for their own maintenance and advancement in life out of the estate.

PROCEDURE - proceedings brought by company - originating process signed by company's sole director - no solicitor involved - whether proceedings validly constituted - defendant resident in another State but served in New South Wales - whether compliance with Service and Execution of Process Act required

EMPLOYMENT - identity of injured worker's employer within group of companies- indicia for determining employer- separate question answered

PROCEDURE - costs - assessment of costs - application by law practice for assessment against companies - serious question to be tried as to whether costs agreement with companies or with their provisional liquidator - consideration of balance of convenience

PROCEDURE - costs - where no determination on the merits - whether any basis for ordering that defendant pay plaintiff's costs

CORPORATIONS - order disqualifying person from managing corporations for fixed period - appeal initiated - application for stay pending appeal - alternative application for leave to manage particular company pending appeal - arguable case sufficiently shown - consideration of balance of convenience - no evidence of any real need for applicant to engage in activities from which disqualification order precludes him - balance of convenience against grant of relief

PROCEDURE - security for costs - action by company in liquidation - proceedings commenced by company through its liquidator - liquidator without funds - commencement of proceedings assisted by substantial creditor - that creditor unwilling to provide financial assistance - not shown that he is unable to do so - security to be provided - approach to quantum where respective solicitors express different views

CRIMINAL LAW AND PROCEDURE - Convictions for sexual offences - Evidence called by Crown from spouse of the appellant - Leave to cross examine - Ruling that evidence unfavourable giving rise to grant of leave not eroneous - Direction by trial judge - Absence of objection at trial - Comment on scope of rule 4 of Criminal Appeal Rules

CONTRACTS - General Contractual Principles - Implied terms - sale of an accounting business to partnership by defendant who became an employee of purchaser - assuming heads of agreement contained implied terms as to good faith - whether defendant failed to transfer goodwill of his practice to partnership - whether he made representations that he would retire - whether misleading or deceptive conduct under the Fair Trading Act 1987, s 42

CRIMINAL LAW - procedure - alleged sexual assault - committal - refusal of Magistrate to order victim to give evidence - s93 Criminal Procedure Act 1986 - whether failure to take account of relevant considerations - whether circumstances identified, including delay since 1995, compelled an order victim give evidence - whether constructive failure to exercise jurisdiction.

CORPORATIONS - winding up - winding up by the court - surplus after payment of debts and liabilities - liquidator seeks special leave to distribute surplus - requirement that schedule of quantified entitlements be annexed to court's order granting leave - power of court to dispense with that requirement - where only two contributories - no distinction between them - dispensation granted

REAL PROPERTY - restrictive covenants - proceedings to review the decision of Registrar-General's decision removing a right of way from the folio of the reister for the servient tenement - reasons for the decision of Registrar-General ordered to be provided pursuant to duty under s 121 Real Property Act 1900 - duty enforceable under s 65 Supreme Court Act 1970 - submitting appearance under UCPR r 6.11not permitted due to Registrar-General's adversarial role in proceedings

CRIMINAL LAW - appeal against sentence - dealing with property suspected of being the proceeds of crime - robbery - first charge is strictly a summary offence - no explicit reference to guilty plea in sentence

PROCEDURE - miscellaneous procedural matters - other matters – orders sought to set aside originating process – orders sought to fix date of service of statement of claim – leave sought to file and serve amended statement of claim – delay in service – requirement of personal service - statement of claim served out of time – statement of claim set aside

Case Management - Application to disallow party from relying on evidence

ADMINISTRATIVE LAW - judicial review of Local Court decision dismissing application for recovery of costs - reviewable decisions and conduct - grounds of review - error of law on face of record - jurisdictional error – conduct of proceedings - prerogative writs and orders – certiorari – mandamus – was Local Court decision interlocutory - whether prosecutor should pay costs - appeal dismissed