Cases and authorities

Transfer of proceedings from District Court

PROCEDURE – Costs – departing from the general rule – Whether costs should be borne by the estate – probate and trust proceedings – whether proceedings were analogous to construction suit – Held: proceedings not analogous to construction suit – Whether proceedings fault of deceased – where confusion more attributable to activities of parties after death than conduct of deceased – Held: proceedings not fault of deceased – Whether agitation of issues ultimately not necessary to determine warrant any special costs order - Held: no costs can be regarded as attributable to maintenance of unsubstantiated and unjustified issue

CORPORATIONS - winding up - winding up in insolvency - oppression or abuse of process. - PROCEDURE - costs –security for costs order subject of statutory demand – defendants entered costs order as a judgment debt and successfully applied to registrar to pay debt by instalments – clerical error meant first instalments were not paid - whether winding up proceedings could continue – whether present procedure is a way of avoiding statutory stay – proceedings dismissed.

PARTNERSHIP - dissolution and winding up - declaration partnership terminated - taking of accounts - COSTS - defendant to pay plaintiff's costs - unreasonable conduct by defendant - plaintiff likely to succeed at trial

EQUITY – trusts and trustees – powers, duties, rights and liabilities of trustees – claim by liquidator of trust for indemnity out of trust assets of costs incurred in liquidation – whether costs reasonably incurred in administration of trust or in liquidator’s capacity as liquidator of the trustee company – whether liquidator’s costs in defending proceedings in substance for own benefit rather than for trust – where open offer made to liquidator exceeds amount to which Court finds liquidator is entitled – open offer taken to be admission against interest

CRIMINAL LAW – sentencing – appeal against sentence – offender pleaded guilty to all charges – whether applicant properly represented during sentencing hearing – whether sentence manifestly excessive – extra curial punishment – backdating sentence to time of arrest – whether greater discount should have been given – extent of discount – sentence lenient in the circumstances – appeal dismissed

CRIMINAL LAW - Sentence appeal - supply prohibited drug (heroin) - sentenced as principal of street level supply - no parity with offender from whom heroin was sourced - whether sentence manifestly excessive.

CRIMINAL LAW - sentence appeal - submission that sentence manifestly excessive because of notional starting point - use of statistics - effect of previous criminal record - need to focus on sentence actually passed - extent to which sentence can be discounted before it becomes inadequate.

PROBATE – INFORMAL WILL – Whether document in writing of deceased, not duly signed and attested, was intended to be his last will – question of fact.

TORTS – negligence – rescuer- psychiatric injury – whether the defendant owed a rescuer a common law duty of care - TORTS – negligence – psychiatric injury – interpretation of the Civil Liability Act 2002, Pt 3 – whether a rescuer is entitled to damages pursuant to the Civil Liability Act 2002, Pt 3 – meaning of the phrase “the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril”

DUST DISEASES TRIBUNAL – appeal to Court of Appeal - appeal in point of law – error identified not operative - remittal to the Dust Diseases Tribunal - Dust Diseases Tribunal Act 1989 (NSW), s 32 - TORTS – negligence – duty of care – novel categories – multifactorial approach to establishing existence of duty - salient features – proximity no longer general determinant of duty – asbestos - domestic exposure – liability of employer where employee brings home contaminated work clothes into domestic environment – foreseeability of harm – whether indeterminate class – class identified conformed with the available medical and occupational health and safety material – foreseeability of harm – required abstraction of consideration of foreseeability - knowledge of risk – available medical evidence identified as at risk a class of persons in a domestic environment with contaminated workers – Asbestos Rule 1971 under Factories and Shops Act 1960 (Qld) – Asbestos Rule required knowledge of the medical and occupational health and safety knowledge - TORTS – negligence –statutory duty – Factories and Shops Act 1960 (Qld) s38(1) – Asbestos Rule 1971 – construction of width of statutory duty – width of duty established in enabling act – rule not extend to protection of non workers in domestic environment - statutory duty did not extend to those in the position of plaintiff – no private right to those outside the statutory duty of care - TORTS – negligence – duty of care – independent subcontractor – duty of care of principal to third party– asbestos - domestic exposure – liability of principal where third party brings home contaminated work clothes into domestic environment – duty of care to third party in carrying on of hazardous activities or handling toxic materials– no self contained test – failure to apply multifactorial approach – failure to address all relevant factual issues – knowledge of principal – steps taken by contractor – toxicity and hazard of asbestos – degree of control of principal – degree of direction and control of subcontractor - Dust Diseases Tribunal Act 1989 (NSW) - s 32 - Factories and Shops Act 1960 (Qld) - s38(1) – Asbestos Rule 1971

An unsuccessful party's financial situation does not bear on the costs orders to be made against him - Court should not assume that assessment of costs will miscarry.

COSTS – application for preliminary discovery – whether proceedings properly characterised as adversarial – whether an ‘event’ – whether any costs order should be immediate or contingent.

Costs - two plaintiffs joined because of ambiguous agreement prepared on their behalf - prudent to join both plaintiffs but order only made and could only be made in respect of one - avoidance of artificial, complicated, lengthy and expensive costs assessments

LANDLORD AND TENANT – rent – rent review notice given by sublessor to sublessee – sublessee found to be in default in paying moneys due under sublease – sublessee precluded from giving dispute notice in response to rent review notice - TAXES AND DUTIES – land tax – whether contractual obligation on sublessee to contribute to ex gratia land tax payments payable by sublessor under head lease – calculation of amounts payable - EQUITY – estoppel and waiver – claim not raised in course of proceedings - no evidence in support of claim – consideration of doctrine of waiver - no estoppel or waiver

SUCCESSION - family provision - Plaintiff an eligible person - whether Plaintiff was the de facto partner of Deceased or whether she comes within some other category of eligible person - will gives Plaintiff a determinable and conditional right of residence in Deceased's house property - financial and material circumstances of Deceased - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claim of other beneficiaries.

Contempt of court - attempt to pervert the course of justice - witness swears affidavits in support of, and filed by, defendants - witness has ongoing business relationship with managing director of plaintiff - in an application to have him punished for contempt of court, it is alleged that prior to the final hearing, the managing director of the plaintiff (a) threatened witness in various ways if he continued to support defendants - (b) made disparaging remarks to the witness concerning the honesty and integrity of the defendants - and (c) persistently requested the witness to speak to the plaintiff's solicitor to inform the solicitor of certain matters unfavourable to the defendants, of which matters the witness had previously informed the managing director. - As to (a) the court is not satisfied beyond reasonable doubt that the alleged threats were made - as to (b) and (c), although the court was satisfied that the allegations were proved, held that in the circumstances they did not constitute a contempt of court.

STRATA TITLES - execution of deeds - deed executed by Strata Managing Agent without complying with s238(3) of Strata Schemes Management Act and attesting date of affixing seal did not bind the Owners Corporation - CONTRACT - repudiation - Building Manager used electricity through the meter of the Owners Corporation for five years without installing its own meter and without paying - HELD repudiatory conduct termination was effective

CORPORATIONS – statutory demand – application to set aside a statutory demand - whether application complied with s 459G(3) of the Corporations Act 2001 (Cth) where facsimile copy of affidavit in support of application to set aside demand was missing a line of text, and subsequent email copy was missing signatures – meaning of ‘copy’ – complete version of affidavit received albeit in the form of two documents - whether a genuine dispute that the debt claimed in statutory demand was not due and payable – default event under convertible note deed meant debt had become due and payable – plaintiff contended oral variation of deed suspended obligation to repay, conditional upon plaintiff making two interest payments - plaintiff failed to make second interest payment – no genuine dispute that debt not due and payable – application dismissed

LEGAL PRACTITIONERS - lawyers - disqualified practitioners – professional misconduct - not fit and proper person – removal from Roll of Local Lawyers – lawyer pleaded guilty to two criminal charges - role of Court when defendant concedes that orders and declarations should be made – whether the Court should range beyond the facts which are admitted if those admitted facts are adequate to support the making of declarations and orders – the Court should deal with the totality of the alleged matters – need to understand the full context and history of the defendant’s conduct

ADMINISTRATIVE LAW - claim for prerogative relief - motor accident compensation scheme - medical assessment of degree of permanent impairment of injured person as a result of injury caused by motor accident - medical assessor and review panel determine that psychiatric injury not caused by motor accident - whether medical assessment permits determination that injury not caused by motor accident - held that medical assessor entitled to determine whether injury caused by motor accident - concession that wrong test of causation applied

EQUITY - Equitable Doctrines and Presumptions - land purchased in name of defendant mother - whether plaintiff daughter contributed funds for purchase - whether mother promised her a 50% interest - whether claim to proprietary estoppel, resulting trust or constructive trust made out - findings of fact - no principles involved

CO-OPERATION - Membership - rights of active members inactive members and former members - Dairy Farmers received large capital payment on takeover of ACFL in which Dairy Farmers held shares - Applicants, former members whose shares had recently been cancelled applied to Co-operative Council which after a hearing decided by majority to include Applicants in distribution - Dairy Farmers appealed to Court - consideration of powers of Council under Co-operatives Act s129 - powers extended to altering rights otherwise existing under legislation and constitution of a co-operative - HELD - Appeal dismissed.

WILLS PROBATE AND ADMINISTRATION - Will construction - non-standard terms of will appeared to leave no fund out of which one gift was to be paid - consideration of principles of construction - lack of internal logic but will showed intention to make gift - HELD on the construction of the will the gift was effective - decision turned on provisions of will under consideration

FAMILY LAW - de facto relationships - adjustment of interests of parties in property - no participation by First Defendant in proceedings - ex parte hearing

TRUSTS AND TRUSTEES - Liquidators and Trust Accounts of Company - Company held Real Estate Agents Licence and maintained Trust Accounts - Liquidators took control of Trust Accounts, identified persons entitled and paid over moneys to which there were identifiable entitlements - Liquidators applied for remuneration as Trustees out of remaining moneys for which there were no claimants - remuneration allowed - CORPORATIONS - Liquidation - Liquidators as Trustees of money in Company's Trust Account - remuneration allowed

Limitation period — application for an extension — whether plaintiff aware of connection between injury and omissions of defendant — costs

No question of principle

COSTS - No question of principle.

COSTS - Sanderson order - cases against defendants not alternative or interdependent - order not made.

COMMON LAW – application for declaration pursuant to s 41(1)(a) of the NSW Trustee and Guardianship Act – application for the appointment of nominated managers of applicant’s estate pursuant to s 41(1)(b) – whether applicant capable of managing her own affairs – whether solicitor, accountant and daughter acting jointly are suitable managers of applicant’s estate

Criminal Law - Evidence - Admissibility - Admissibility of statements made by the accused during police siege - where statements made during course of negotiations to have the accused disarm - whether statements "made in course of official questioning" within meaning of s 281 of Criminal Procedure Act 1986 - whether the accused should have been cautioned under s 139 of Evidence Act - if so, whether admissions should be admitted under s 138 of Evidence Act - Discretion to exclude admissions under s 90 of Evidence Act - whether admission of evidence would render trial unfair.

PROCEDURE - whether additional order sought by defendants should be made after judgment given

CRIMINAL LAW - sentence - multiple serious offences committed over a three month period - whether particular sentences manifestly excessive - parity principle - principle of totality.

CRIMINAL LAW - sentence - break enter and steal - evaluation of remorse - expired parole but warrant outstanding for breach - whether conditional liberty - whether lesser sentence warranted

CRIMINAL LAW – appeal against sentence – particular offences – applicant was involved in an organised crime syndicate which took over the identities of legitimate individuals and entities in order to defraud financial institutions – applicant was instructed by syndicate organiser and attended banks where he provided fraudulent identification and bank documents to withdraw funds – application of parity principles – co-offenders – the sentencing judge’s finding in relation to the applicant’s criminality and relativity to his co-offenders was open on the evidence – whether the sentencing judge varied the statutory ratio adequately pursuant to a finding of special circumstances – a longer period of supervision ought to have been provided to give effect to the sentencing judge’s finding of special circumstances – applicant resentenced to reduce total effective non-parole period by four months

CRIMINAL LAW - sentence appeal - sexual assaults occurring 20-30 years before sentences imposed - application of sentencing practices then current - whether non-parole period should be adjusted downwards to have regard to those practices - whether some other sentence warranted in law - (s6(3) Criminal Appeal Act 1912).

CRIMINAL LAW - conviction appeal and Crown appeal against sentence - aggravated indecent assault - whether verdicts are unreasonable and cannot be supported by the evidence - time of the essence - whether inconsistencies in accounts given by 9 year old complainant over the course of three interviews give rise to a reasonable doubt that offences occurred on specified date - quality of interview process - error in length of standard non parole period - error in imposing fixed term for offence with standard non parole period - manifest inadequacy.

CRIMINAL LAW - appeal - conviction appeal - verdicts are unsafe and unsatisfactory - inadequate direction regarding tendency evidence - appeal against conviction dismissed - appeal against sentence - sentence excessive - sentence where offence has been abolished - leave to appeal against sentence granted - appeal upheld in part

CRIMINAL LAW - sentence - multiple offences of aggravated break enter and steal - whether sentences manifestly excessive - principle of parity - comparison between sentences passed in Children's Court - whether accumulation was appropriate.

MORTGAGES - mortgages and charges generally - rights and liabilities of mortgagor and mortgagee - mortgagor sought orders pursuant to s 73 Civil Procedure Act 2005 to dismiss proceedings and set aside default judgment for possession – mortgagor sought leave to file defence pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005– proposed defence shows no viable grounds of defence - application dismissed - construction of the mortgage – whether loan agreement clearly acknowledged the registered mortgage – CONTRACTS - general contractual principles - illegal and void contracts - whether default rate of interest and administration fees are penalties – four per cent penalty rate not out of proportion - whether mortgagor’s delayed payment of lesser sum than the debt falls within the de minimis exception

PROCEDURE - confidentiality order previously made by consent - one party seeks discharge of order - compromise that order to be discharged as to certain items only - certain other items remain in dispute - assessment by court of need for continued confidentiality of those items - CORPORATIONS - creditors' voluntary winding up - roles of special purpose liquidator and committee of inspection - source of confidentiality constraints upon them - confidentiality a product of duties of each to use information for proper purposes and in interests of general body of creditors - need for forthcoming meeting of creditors to consider mistrust and friction existing between special purpose liquidator and committee of inspection

CONTRACTS - building, engineering and related contracts – contracts for purchase of units off the plan - obligation on vendor to use all reasonable endeavours to register strata plan – failure to use all reasonable endeavours precluded vendor from rescinding contracts – contracts validly rescinded by purchasers

CORPORATIONS – Corporations Act – Application to set aside statutory demand – Application to amend originating process by seeking an order extending time for compliance until determination of objection lodged to Income Tax Assessment – Review of Registrar’s decision refusing amendment – Concession that if amendment sought not allowed originating process should be dismissed – Whether claim under amendment futile and doomed to fail and should not be allowed – Held futile.

EQUITY – equitable remedies – injunctions – permanent injunction sought to restrain publication of allegedly defamatory matter – no hearing of substantive issues sought – necessity for final hearing before grant of permanent injunction

ADMINISTRATIVE LAW – Consumer, Trader & Tenancy Tribunal – Strata Schemes Management Act – Owners Corporation – appointment of compulsory strata manager – lot owners not notified – denial of procedural fairness – interim orders specifying duration beyond statutory prescription

CRIMINAL LAW – sentence – murder – offence in 2001 – no standard non-parole period – plea of guilty – significant leniency on account of voluntary disclosures – Ellis factors - felony murder - armed robbery - no issue of principle