Cases and authorities

MORTGAGES - mortgages and charges generally - rights and liabilities of mortgagor and mortgagee - mortgagee's possession and sale - no claim arising claim under section 420A of the Corporations Act 2001 (Cth) - mortgagee's breach of duty - whether mortgagee failed to act in good faith, unfairly and unconscionable sacrificing the mortgagor's interest in the property - whether mortgagee failed to preserve property - whether mortgagee failed to market property - whether mortgagee failed to engender competition - mortgagee's failures not established - orders sought granted

INCORPORATED ASSOCIATIONS - application by association for its own winding-up - power of committee members to cause association to bring application - advertising not dispensed with - provisional liquidator appointed

INSURANCE – liability insurance – whether claimants should have leave to commence proceedings against the insurer – whether arguable case. - INSURANCE – composite policy – construction of exclusion clause for unauthorised acts – whether exclusion denied cover for innocent employer.

WORKERS' COMPENSATION – binding medical assessment – appeal to Appeal Panel – appeal by way of review – panel not confined to grounds of appeal – panel proposing to consider other questions bound to give parties opportunity to be heard on new issues - ADMINISTRATIVE LAW – administrative body determining rights – procedural fairness – deciding case on basis not argued by parties – body bound to give parties opportunity to be heard on new issues.

COSTS - security for costs - review of discretionary decision - no question of principle.

STATUTORY INTERPRETATION - acts of parliament - interpretation - effect of delegated legislation on interpretation of act. - TRAFFIC LAW - statutory compensation in respect of motor vehicle accidents - New South Wales - whether application made under s 96 of the Motor Accidents Compensation Act suspends time running under s 109 for the commencement of court proceedings.

CORPORATIONS - leave to proceed against company in voluntary winding up - applicant for leave relies on verified pleading without other evidence to show a serious question to be tried - application denied on that ground, and also on discretionary grounds - PRACTICE AND PROCEDURE - abuse of process - plaintiff a lender to investors in managed investment schemes in Western Australia - plaintiff sues defendants in New South Wales alleging inducement of breach of contract - defendants file cross-claim joining other parties and allege misleading and deceptive conduct in respect of the selling of interests in managed investment schemes - meanwhile a cross-defendant commences proceedings against the defendants in Supreme Court of Western Australia, suing as lender to recover loan money - defendants' solicitor gives evidence that Western Australian defence will raise same issues as New South Wales cross-claim - duplication of proceedings held vexatious and an abuse of process

LICENCES - Licence to occupy cabin in Royal National Park - multiple licensees - construction of Licence - whether one licensee can terminate his rights and obligations under the Licence without affecting other licensees' rights and obligations.

CORPORATIONS - application to set aside examination summonses issued at request of voluntary administrator - no question of principle

PARTNERSHIP - dissolution and winding up - effect of dissolution - wrongful application of sale proceeds by defendant - unreasonable defence of proceedings - plaintiff awarded indemnity costs - interest awarded at Supreme Court rate

CORPORATIONS - application to set aside statutory demand where application is out of time and plaintiff does not appear in support of application – application dismissed – no question of principle

PRACTICE AND PROCEDURE - notice to admit facts and authenticity of documents - notice disputing facts and authenticity of documents not served in time - deemed admissions - leave to withdraw admissions

ADMINISTRATIVE LAW – mining – jurisdiction and powers of Warden’s Court to determine provisions of an access management plan for small-scale titles pursuant to Part 10A of the Mining Act 1992 – meaning of “rights of access” in s.236D(1) of the Act – the phrase “in relation to” is to be construed within its statutory context – mullock or waste is an aspect of mining – communal mullock dumps are not an aspect of “rights of access” that may be the subject of an access management plan - STATUTORY INTERPRETATION of “access”, “rights of access” – no power to include a provision to require holders of a small-scale title or the defendant association to remove existing communal mullock dumps - PROCEDURAL FAIRNESS – no disadvantage or detriment in breach of procedural fairness in the Warden’s Court having used a document - a Management Plan for the property not in evidence - the question of statutory construction not having turned on that document – no breach of procedural fairness in refusing to defer decision pending a possible submission by a Department of Government (a non-party) on availability of financial assistance to enforce access management plans – no breach of procedural fairness in permitting a party to call evidence of an expert nature notwithstanding the failure of the party calling the witness to comply with directions for service of expert reports

GUARDIANSHIP – PROTECTED PERSONS – Whether order as to financial management of affairs of protected person should be set aside – factual considerations – no question of principle.

CORPORATIONS – application to set aside order that company be wound up and that liquidator be appointed – order made in absence of company – failure to disclose order of Local Court for payment of judgment debt by instalments – no fundamental irregularity - presumption of insolvency due to failure to satisfy or set aside statutory demands – presumption not rebutted – application to terminate winding up under s 482 Corporations Act 2001 (Cth) – absence of evidence as to company’s solvency – application dismissed

TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) – s 51AA(1) – unconscionable conduct within the meaning of the unwritten law – the plaintiff and a company associated with the defendants were parties to a building contract - the company denied that the plaintiff was party to the contract asserting that the plaintiff’s deregistered company was the party rather than the plaintiff himself - certain of the defendants were knowingly involved in the denial – the plaintiff averred that the denial was unconscionable conduct within the meaning of the unwritten law because the plaintiff and the other party to the building contract had acted on the assumption or conventional basis that the plaintiff was a party, the denial was in the circumstances unconscionable and the other party would have been estopped from making the denial - held that the other party had not engaged in any unconscionable conduct because there was no assumption contrary to fact, on which the plaintiff relied because the plaintiff was party to the building contract – Trade Practices Act 1974 (Cth) – s 82 – Damages suffered by conduct in contravention of the Act - held further that even if the conduct of the other party to the building contract did fall within s 51AA of the Act, the plaintiff had not established that he had suffered any loss by the conduct complained of – the defendants were not liable even though they knowingly participated in the denial - TORTS - miscellaneous torts - interference with contractual and other relations – whether the third defendant had induced a party to breach its building contract with the plaintiff – held that the claim for inducing breach of contract failed as the third defendant had not induced any breach of the building contract, the third defendant had not intended to induce any breach of contract and even if the third defendant had intentionally induced a breach of contract, the plaintiff did not suffer any loss as a result of the defendant’s conduct.

TORTS - negligence - motor vehicle accident at intersection - modified T intersection - V1 had right of way turning right from leg of T over V2 passing along top of T - V2 did not see modified T interesection sign - drove straight ahead - V2 negligent - council did not install the appropriate warning signs and line markings - council negligent - whether V1 also negligent because did not slow down or stop despite having right of way - having right of way was part of circumstances in assessing reasonableness of V1's conduct - on facts, V1 not negligent - APPORTIONMENT - whether apportionment between V2 and council erroneous - (by majority) trial judge's apportionment was open to him - COSTS - orders having effect that council pay all plaintiffs' costs on indemnity basis - whether went beyond compensatory orders - preferable question whether reason to depart from costs on ordinary basis - delinquency found causing prolongation of hearing - reason to depart only to extent costs increased - trial judge's discretion miscarried - orders in nature of Bullock or Sanderson orders - no proper basis - discretion again miscarried.

TORTS - negligence - consequential orders - no issue of principle

CORPORATIONS – derivative action – sections 236 and 237 Corporations Act 2001 (Cth) – meaning of “proceedings on behalf of a company” – whether using a statutory derivative action to cause the company to bring a general law derivative action would be considered “proceedings on behalf of a company” – meaning of “proceedings” – meaning of “on behalf of a company” – distinction between the rights of members or shareholders and officers or directors under section 236 – whether a person bringing proceedings on behalf of a company must assert a cause of action for the benefit of the company – CORPORATIONS – derivative action – general law – whether leave is required to commence a derivative action at general law – distinction between leave to commence proceedings and a trial of a preliminary issue – history of the procedure for bringing a derivative action –CORPORATIONS – membership, rights and remedies – reflective loss – whether a shareholder of a holding company can obtain a remedy for loss suffered by a subsidiary company – DAMAGES – general principles – reflective loss – whether a shareholder of a holding company can obtain a remedy for loss suffered by a subsidiary company – whether the losses are to be considered separate – EQUITY – equitable remedies – whether the reflective loss principle applies to equitable remedies – APPEAL AND NEW TRIAL – appeal – general principles – points and objections not taken below – requirement to examine the pleadings and the oral and written admissions – whether argument sought to be raised on appeal was argued at trial – EMPLOYMENT LAW – the relationship of employer and employee – whether property was created in the course of employment – whether property belongs to the employer or employee – STATUTORY INTERPRETATION – sections 236 and 237 Corporations Act 2001 (Cth) – whether section 237 is to be interpreted independently of section 236 – whether upon meeting the requirements of section 237 the court must grant leave – interpretation of legislative provisions in context – WORDS AND PHRASES – “proceedings” – “on behalf of” – “reflective loss”

APPEAL - nature of appeal - decision on question of law - interlocutory appeal on procedures - Land and Environment Court Act 1979 (NSW), s 57 - APPEAL - decision on question of law - interlocutory ruling - rejection of proposed amendment to pleading - whether amendment a rejected basis of valuation - APPEAL - decision on question of law - interlocutory ruling - whether power to refuse to hear further evidence - whether power properly exercised - Land and Environment Court Act 1979 (NSW), s 38 - EVIDENCE - expert evidence - evidence adduced at earlier hearing - court differently constituted on remittal - refusal to hear further evidence - PROCEDURE - remittal following appeal - scope of remitter - court differently constituted - power to reject proposed amendment to pleading - power to reject further evidence - whether power properly exercised - WORDS AND PHRASES - "or", "matter", "rehearing", "remitter", "reopening"

CONTRACTS - Certainty of terms - agreement to undertake genuine and good faith negotiations in a commercial dispute resolution clause - sufficient certainty to be valid and enforceable - meaning - CONTRACTS - certainty of terms - severance - mediation agreement void for uncertainty because nominated dispute centre did not exist - arbitration clause severable.

PROFESSIONS AND TRADES - lawyers - duties and liabilities - solicitor and client - negligence - mortgage and loans - what was the duty owed by solicitor to client - was the duty breached - conflict of interest - lack of informed consent - failure to advise - solicitor's common practice - what was the foreseeability of loss - causation - damages - alleged breaches of duty established - orders made

DAMAGES – measure and remoteness of damages in actions for breach of contract – order made in previous hearing that Victor Lahoud interests perform contract – enquiry as to damages suffered by Joseph Lahoud interests resulting from Victor Lahoud interests’ failure to transfer residential units for period of six years – Joseph Lahoud interests claimed damages referable to lost rent from units or interest on capital value of units – whether loss of income would be presumed from failure to transfer income-producing asset – consideration of Wenham v Ella and Hadley v Baxendale – held that Joseph Lahoud interests had only established loss of rents from particular leases existing at time of breach until expiry of those leases (and, in one case, an option lease) and had otherwise failed to establish loss. - CONTRACTS – general contractual principles – order made in previous hearing that parties execute Deed of Settlement in performance of obligation in Terms of Settlement – Deed substantially similar to Terms – Victor Lahoud interests exercised right under Deed to audit – whether Deed created new right to audit – if Deed created no new right, whether reasonable time for exercise of right under Terms had elapsed – whether right to audit should be construed to mean audit of specific figures or audit of project profits – held that Deed created new right to audit – if not, reasonable time had not elapsed – right to audit construed to mean a right to audit of project profits.

CORPORATIONS - bodies corporate other than companies and associations - co-operatives registered under Co-operatives Act 1992 (NSW) - application under s 344 for order approving arrangement with members - arrangement agreed to by special resolution passed by special postal ballot - 7 out of each 10 shares to be cancelled in consideration of return of capital - inactive members' shares affected although they have no voting rights

EQUITY - equitable remedies - specific performance - Application for specific enforcement of defendant’s promise to consent to the filing of a consent order for setting aside of judgment – terms of settlement required remedial building work to be carried out - whether terms of settlement have been performed by plaintiffs - CONTRACTS - building, engineering and related contracts - performance of work - whether engineer’s certificate conclusive evidence that works had been performed in accordance with settlement – construction of contract to determine what effect is to be given to a certificate - CONTRACTS - building, engineering and related contracts - performance of work - whether entire performance or substantial performance required before settlement agreement can be enforced – whether agreement an ‘entire contract’ – whether agreement substantially performed

No question of principle

LAND LAW - Land subdivided - Lots sold at different times by developer/original vendor - Whether benefit of defendants' covenant annexed to plaintiffs' land - Whether Common Building Scheme exists - PROCEDURE - Whether owners of other lots in the Estate should be notified of the application prior to determination of whether a Common Building Scheme exists

CRIMINAL LAW – evidence – confessions and admissions – right of silence – right at general law and under section 89 Evidence Act – whether trial judge’s direction to the jury infringed the accused’s right of silence – distinction between common law right of silence and section 89 Evidence Act - CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – particular grounds – misdirection and non-direction – general matters – failure to take objection to misdirection infringing the accused’s right of silence – operation of rule 4 Criminal Appeal Rules – whether misdirection as to the right of silence is a fundamental error leading to a miscarriage of justice - WORDS AND PHRASES – “right of silence” – “right to silence”

CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – miscarriage of justice – incompetence of counsel – whether accused lost a chance of acquittal by failure of counsel to articulate the grounds by which evidence was admissible under section 293 Criminal Procedure Act 1983 – whether the conduct of counsel is capable of rational explanation on forensic grounds – CRIMINAL LAW – evidence – evidentiary matters relating to witnesses and accused persons – evidence of sexual experience, reputation and morality – construction of the exceptions in section 293 Criminal Procedure Act 1983 – meaning of “relating to” and “relationship” – categories of exception to the prohibition to be construed broadly when there is material relevant to the case – proper procedure for an application under section 293 – WORDS AND PHRASES – “relating to”, “relationship”

PROCEDURE – costs – alternative claims against two defendants – action succeeding against one defendant only – Bullock and Sanderson orders – when applicable - PROCEDURE – costs – alternative claims against two defendants – action succeeding against one defendant only – where unsuccessful defendant asserted successful defendant liable on plaintiff’s claim – whether portion of plaintiff’s costs should be borne by unsuccessful defendant in absence of a Sanderson or Bullock order – requirement for conduct making it fair to impose liability - PROCEDURE – costs – application for costs on indemnity basis – refusal of Calderbank offer – whether Calderbank offer genuine compromise or invited capitulation

WORKERS' COMPENSATION – binding medical assessment – Appeal Panel – conduct of review – despite worker’s request Panel did not conduct further medical examination - whether grounds for judicial review. - JUDICIAL REVIEW – workers compensation – binding medical assessment – reasons of Appeal Panel – whether Panel treated relevant consideration as irrelevant – proper approach to reasons of Panel.

COSTS - indemnity costs - Calderbank offer - no question of principle.

TORTS - negligence – duty of solicitor – to exercise reasonable care – no duty to ensure particular result. - SOLICITOR – negligence – duty to exercise reasonable care – no duty to ensure particular result.

INJUNCTION - Application by mortgagors to restrain a sale of properties - whether prospect of refinancing very likely - relevance of lateness of application - explanation for delay - discretionary matters and balance of convenience.

CORPORATIONS - court-ordered winding up - liquidator's power to register transfer of shares - requirement for court's approval for transfer of shares under s 468(1) - whether approval may be granted nunc pro tunc - relevant considerations - liquidator's delegated power to distribute surplus to persons entitled to it - requirement of special leave - whether the court may grant special leave nunc pro tunc - relevant considerations

CORPORATIONS - voluntary administration - liability of administrators for post-appointment debts - use of s 447A to modify administrators' liability - whether order should be made in respect of a category of commercial contracts - relevant considerations

Real property - application to extend caveat - whether plaintiff has a caveatable interest - Injunction - freezing order - whether danger that if plaintiff succeeds it will not be able to have its judgment satisfied - adequacy of evidence.

NEGLIGENCE - Solicitor retained for lease of shop - Failure of business in new development - Credibility - No special point of principle

CORPORATIONS – distinction between company and shareholders – limitations on shareholders' rights to enforce duties owed to company - EQUITY – equitable remedies – accounts and inquiries – sufficient connection – scope of breach of fiduciary duty – inquiry to determine equitable damages and/or account of profits by reason of breaches of fiduciary duty – whether sufficient connection between breach of fiduciary duty and inquiry for purposes of determining account of profits – whether breach was a conflict of interest and duty – deprivation of shareholding – evidence of benefits and profits – distinction between trust and fiduciary relationship - EQUITY - equitable remedies - accounts and inquiries - whether trial judge took into account irrelevant considerations - fiduciary's conduct capable of constituting breach of duties owed to companies - EQUITY – equitable remedies – election between equitable compensation and disgorgement damages - WORDS AND PHRASES – “sufficient connection”

CONSTITUTIONAL LAW - the non-judicial organs of government - the Crown – prerogative rights of the Crown – abrogation and modification of prerogative by statute - royal mines and minerals – Royal Mines Acts 1688 and 1693 - CONSTITUTIONAL LAW - imperial, colonial, state and Commonwealth Constitutional relationships - Imperial legislation – reception and operative effect in New South Wales – Royal Mines Acts 1688 and 1693 - ENERGY AND RESOURCES - minerals – ownership of minerals under prerogative – scope of prerogative over minerals intermixed with gold and silver - s 379 Mining Act 1992 - REAL PROPERTY - general principles - Crown grants – royal minerals need not be expressly reserved to the Crown - STATUTORY INTERPRETATION - acts of parliament – interpretation – rules of construction – purposive interpretation – acts of constitutional significance - Royal Mines Acts 1688 and 1693 - STATUTORY INTERPRETATION - acts of parliament – interpretation – utility of repealed statute in interpretation of subsisting statute.

Serious sex offender - application for extended supervision order - no opposition to making of order or conditions attached thereto - only issue as to duration of order

PROCEDURE - Summary Termination - alleged agreement that in consideration of entering work agreement as an actor in a television series, defendant would pay the plaintiff a reasonable share of profits if the show was successful - whether a claim in the nature of a quantum meruit - whether a liquidated demand - whether an unenforceable agreement to agree - whether the Limitation Act 1969 likely to defeat any claim - earlier pleading struck out and leave to replead granted - whether further leave should be granted

Application for adjournment to allow for the issue of subpoenas - No proper basis for issue of subpoenas - Withdrawal of caveat - Restraint on lodging further caveats over subject property

Serious sex offender - application for extended supervision order - no opposition to making of order or conditions attached thereto

Criminal law - sentencing - aiding and abetting sexual intercourse with a child under 10 (x3) - using a child under 14 for pornographic purposes (x3) - producing and disseminating child pornography - pleas of guilty and assistance to authorities - whether sentences manifestly excessive - relevance of standard non-parole for offences of aiding and abetting

CRIMINAL LAW - appeal - armed robbery - on parole - whether sentences imposed were manifestly excessive - comparison of sentence with statistics from Judicial Commission

CRIMINAL LAW - appeal - assault with intent to rob - guilty plea - sentence excessive when compared to co-offender although direct comparison inappropriate as co-offender a juvenile - appeal allowed

PROCEDURE – Application for leave to appeal – Deficiencies in preparation of White Book – Relatively small amount of costs involved – Preparation of appeal involving substantial further costs – Whether leave to appeal should be granted.