Cases and authorities

CORPORATIONS - replaceable rules - powers to appoint directors and issue shares - formal requirements for an issue of shares - whether informal unanimous assent of shareholders is sufficient for appointment of directors and issue of shares - whether informal unanimous assent was present on the facts - ESTOPPEL - estoppel by convention and promissory estoppel - defendants represented that plaintiffs would become directors and one-third shareholders when financing arrangements were completed - later defendants treated plaintiffs as directors and required them to make one-third contributions to expenses - PRACTICE AND PROCEDURE - General Steel principles applied

Easements to drain water - Agreement to grant - Whether agreement breached - Whether agreement at an end by mutual abandonment. Easements to drain water - Conveyancing Act (NSW) section 88K - Whether requirements of subsections (1) and (2)(c) have been met.

Termination of sub-contract - Breach of terms of sub-contract - Restraint clause - Want of consideration for restraint - Reasonableness of restraint - Damages as an adequate remedy - Interlocutory relief

TRUSTS AND TRUSTEES – Powers of trustees - Capital and income – whether trustee of discretionary trust entitled to treat as income unrealised capital gain on investments – whether trustee validly and effectively did so – whether trustee validly made distributions of such income to beneficiary – whether trustee entitled after beneficiary’s death to revisit treatment of unrealised capital gain so as to revoke distributions previously made – whether beneficiary’s estate released debt on beneficiary current account. - CORPORATIONS – Directors – authority – where other directors leave conduct of affairs of corporation entirely to controlling director – whether controlling director has implied actual authority in respect of all relevant affairs of company

CORPORATIONS - winding up - statutory demand - whether demand can be withdrawn before last date for compliance - setting aside under s 459J(1)(b) for "some other reason" - whether the court can take into account events after service of demand - whether, after service of demand, creditor is precluded from commencing proceedings for recovery of debt - whether statutory prohibition on commencing proceedings under legal profession legislation constitutes "some other reason" - COSTS - where no full trial on merits - considerations relating to reasonableness of conduct of parties in a statutory demand case

TAXES AND DUTIES – income tax and related legislation – collection and recovery of tax – recovery of penalty from director of company – whether notice pursuant to s 222AOE of the Income Tax Assessment Act 1936 had been given to the defendant prior to commencement of the proceedings – whether the defendant was a director at the relevant time so that she became liable for a penalty under s 222AOC – whether the defendant had a defence under s 222AOJ(2) upon the basis that she thought that she had resigned – whether her belief could amount to "some other good reason" for the purposes of the section – verdict for the plaintiff

COSTS – offers of compromise – indemnity costs – comparison with amount claimed – large disparity – whether real and genuine element of compromise - COSTS – interest on costs – preconditions to award of interest – whether appropriate to assess conduct of the proceedings in order to impose - COSTS – rates of interest – evidence of rate of interest on funds used to pay costs – compensatory objective of award of interest – whether interest to be calculated at rate other than in accordance with UCPR, Sch 5

CAVEAT – SUCCESSION – Interest of beneficiary in residue of estate not fully administered not sufficient to support caveat over particular asset – no question of principle.

CIVIL LAW - NEGLIGENCE - child aged 10 on sleep over - fall from bunk bed - no guardrail or ladder - mandatory Australian Standard requiring guardrail and ladder - Civil Liability Act 2002 - accident foreseeable and preventable - causation established - DAMAGES - personal injury - issue whether child suffering from organic brain damage or psychiatric illness - significant injury - 50% of worst case - drop out of school - loss of earning capacity - other losses.

CRIMINAL LAW – appeal – election for judge alone trial – whether, as a matter of fact, election filed with court on a day prior to the date fixed for trial – discussion of legislative provisions

CRIMINAL LAW - conviction appeal - appellant pleaded guilty to unauthorised possession of pistol under s.7(1) Firearms Act 1996 - whether miscarriage of justice arose from plea of guilty - whether s.7(1) offence requires possession of a "prohibited pistol" - appellant possessed a "pistol" which was not a "prohibited pistol" - legislative history of s.7(1) offence - Law Part Code considered - held that s.7(1) required unauthorised possession of "pistol" - no miscarriage of justice - sentences of imprisonment imposed for s.7(1) offence and offences of possession of a loaded firearm in a public place and supply prohibited drug - Form 1 offences - whether sentences manifestly excessive

CRIMINAL LAW - sentencing - manslaughter, malicious wounding and common assault - offences committed during violent confrontation between members of two families - whether sentences manifestly excessive

CRIMINAL LAW – sentence – Crown appeal against inadequacy of sentences imposed on three offenders for two counts of armed robbery of convenience store – sentences of two years in each case to be served concurrently and wholly suspended – whether manifestly inadequate – whether sentences resulting from demonstrated error having regard to Henry guidelines – sentences manifestly inadequate – offenders resentenced to effective non-parole periods of 18 months

Criminal Law - Appeal against sentence - Child sexual assault offences against daughter - long delay before complaint - offender of advanced age - sentencing according to date of offending - special circumstances arising for change in practice of fixing non-parole period.

Practice and procedure - Contempt of Court - Failure to comply with undertaking to the Court

Civil procedure - pleadings - application for summary judgment - application to strike out

CONTRACTS - General Contractual Principles - Offer and Acceptance - verbal negotiations to appoint managing director - whether for a fixed term - whether option to acquire shares for stated price - shareholder agreement to be drawn up - whether concluded contract before documentation - whether subject to conditions precedent - whether plaintiff or defendant repudiated contract

No question of principle

Civil Procedure - application freezing order

REAL PROPERTY - Strata Titles – Common property - alterations to common property constituted an improvement or enhancement to common property so as to require authorisation under s 65A - Held: work constituted repairs and maintenance under s 62 and therefore did not require special resolution - Whether work authorised by the Owners Corporation - where works not explicitly authorised by resolution of owners corporation - whether implicitly authorised - Held: owners corporation had implicitly authorised works, alternatively estopped from denying same – Whether such authorisation by the owners corporation constituted a fraud on plaintiffs - Held: the fact that the works benefited some lots more than others does not alter the fact that the works were repairs which Owners Corporation were obliged to implement – Whether works to enclose a veranda constituting common property with a specific lot within building were authorised - where defendant contends that works were for benefit of one lot within block and did not require authorisation under s 65A - Held: works constituted enhancement of common property and therefore required special resolution of owners corporation – Whether owners corporation could authorise works under s 61(1) - Held: s 61(1) only authorises the owners corporation to bring about such works as are authorised under s 62 and s 65A – Where works required authorisation by special resolution of the Owners Corporation - whether such an authorisation occurred - Held: authorisation occurred through resolution authorising enclosure of verandah, supplemented by later resolution approving plans – Alternatively, whether injunctive relief should be granted - where plans have been approved by all residents - where plaintiffs have derived a benefit from works paid for by the Owners Corporation - where a quid pro quo arrangement was reached between residents for approval of plans - where the defendants have relied on the plaintiff’s approval of plans - where no loss or damage has been suffered by the plaintiff as a result of the work – Held: injunctive relief would be declined as a matter of discretion – Whether owners corporation required to repair damage to individual lot caused by work by lot owners of other lots - Held: Court cannot order the owners corporation to undertake such repairs - damages against individual lot owners is an adequate and more convenient remedy

CORPORATIONS - receivers, controllers and managers - duties and liabilities - s419A Corporations Act - whether agents for mortgagee in possession liable to pay rent and other amounts accruing under prior agreement - difficulty in identifying goods belonging to plaintiff - commingling of goods - significance of prior breach by company of a term of agreement - whether agents for mortgagee should be excused from liability - TORTS - conversion - dealing with goods in manner inconsistent with owner's rights - permitting use of goods by a third party under licence agreement - later sale of goods to third party - whether actual physical interference with goods necessary to establish conversion

Criminal Law - Sentence - Manslaughter - Plea accepted on the basis of provocation - abusive relationship - deceased shot and dismembered by wife - long delay before body identified.

Plaintiff supplier of prepaid and international telephone calling clients in Australian market - Defendant supplier of telecommunications services in Australia repudiates contractual arrangements by disconnecting services it had provided to the plaintiff - Principles governing the awarding of damages - Plaintiff’s damages claim for loss of gross profit and for loss of goodwill - Consideration of lost revenue and gross margin - Industry standard approach compared with capitalisation of future maintainable earnings approach - Evidence that plaintiff use best endeavours to retain their business and goodwill and in doing so offered credits to clients in hope that customers would remain customers of plaintiff - No exactness can be achieved in the task of awarding compensation for future economic loss - Identifying and categorising vast goodwill as constituting customer loyalty in subject products - Consideration of types of loyalty from customers being regarded as valuable assets

ADOPTION – DISCHARGE – “EXCEPTIONAL REASON” – Applicant alleged that she had been repeatedly sexually abused by her adoptive father as a young child – applicant sought discharge of adoption order to regain identity with birth father and to alleviate psychological trauma – whether sexual abuse proved – standard of proof – whether psychological injury would be alleviated by discharge of adoption – whether “exceptional reason” existed for discharge of adoption – principles to be applied.

CRIMINAL LAW — character of the accused — summing-up — putting the defence case — proviso to s 6(1) Criminal Appeal Act

Criminal law - sentencing - declined to impose life sentence for murder pursuant to s 61(1) Crimes (Sentencing Procedure) Act 1999 - imposed determinate sentence which, when accumulated on other sentences, expired when offender 82 (non-parole) or 89 (total term) - length of sentences within range of discretion - submission that error in imposing defacto life sentence having declined as above - no error - meant only the qualified obligation in s 61(1) did not apply - other sentencing considerations remained - sentence must reflect objective seriousness - must be imposed even if extending for all or most of life expectancy.

FAMILY LAW - de facto relationships - adjustment of property interests – assessment of significance of financial and non-financial contributions – whether adjustive order should be made – no question of principle

APPEAL - leave to appeal - matter of practice and procedure - refusal of adjournment and related costs orders - interference with discretion of court below - whether injustice - general principles

APPEAL – appeal – Land and Environment Court – leave to appeal to the Court of Appeal – whether to grant leave to appeal under section 57(4) Land and Environment Court Act 1979 – appeal from a section 56A decision of a judge of the Land and Environment Court – factors influencing the decision whether or not to grant leave to appeal – whether the existence of a subsequent successful development application is a ground to refuse leave – weight to be given to a draft Local Environmental Plan not properly exhibited to the public – weight to be given to procedural history which discloses multiple rejections of the Development Application on the merits – whether appeal has sufficient prospects of success – ENVIRONMENT AND PLANNING – building control – decision to grant Development Approval – Land and Environment Court – appeal from decision of a Commissioner under section 56A Land and Environment Court Act – proper approach to reviewing findings of a Commissioner – review of findings should be taken as a whole and in their context

Family Law. Application for adjustment of parties' property interests under s 20 of the Property (Relationships) Act 1984. Application under s 18 for extension of time. Time extended and orders made for adjustment.

CONTRACTS - general contractual principles - consideration - contract for sale of utility vehicle - total failure of consideration - action for money had and received - no question of principle

EQUITY - trusts and trustees - trustees - their appointment - assessment of fitness of new trustee - trust relating to the operation of a regional art gallery.

CRIMINAL LAW - procedure - S 11 Children (Criminal Proceedings) Act 1987 - whether anything may be published that may identify deceased child or siblings

FAMILY LAW AND CHILD WELFARE - adoption – Application under s 84(2) of the Adoption Act 2000 for interim order placing child under parental responsibility of Director-General for 12 months – whether jurisdiction to make order sought – order made in exercise of parens patriae jurisdiction – interim order that child be made a ward of the court

CRIMINAL LAW - sentence - supply commercial quantity of prohibited drug - possess unregistered firearm - 40 offences on Form 1 - whether error in approach to sentence with respect to rehabilitation, remorse and contrition - no error established

CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender - gambling addiction – objective seriousness of offence – no evidence of compulsion or obsession or direct link to offending - CRIMINAL LAW - sentence - purpose of sentence – deterrence – overall criminal history indicated that personal deterrence was a matter entitled to weight - CRIMINAL LAW - sentence - sentencing procedure - material relevant for determining appropriate sentence - pre-sentence reports – trial judge entitled to doubt comments in pre-sentence report

BUILDING AND CONSTRUCTION - adjudication under Building and Construction Industry Security of Payment Act 1999 - payment schedule could "indicate" reasons for nil valuation by referring to previous payment schedule - in any event adjudicator's view that it could not did not make adjudication void - what is indicated in a payment schedule is for adjudicator to determine - did not fail to comply with basic and essential requirements of valid adjudication - reliance on backcharge claims as set-off - adjudicator requested further submissions - submissions included that could not rely - open to adjudicator to pay regard to submission - no denial of natural justice - no substance in complaint that adjudicator failed bona fide to exercise his powers - COSTS - adequacy of trial judge's reasons - discretion re-exercised - cross-claim did not have to be decided - but was either unnecessary or raised separate issues - no order for its costs.

PROCEDURE – Costs – Departing from the general rule – Order for costs on indemnity basis – Conduct of parties – Where offer of compromise made and rejected before trial – Whether offer constituted genuine compromise – Whether reasonable in circumstances to reject offer – Whether successful party entitled to costs of appeal on indemnity basis in circumstances where offer of compromise made five years before appeal - Judgments and orders – Amending, varying and setting aside – Effect of entering judgment or order - Stay of proceedings – Whether to grant stay of orders pending special leave application

TAXATION – company failed to remit amounts deducted for tax – liability of director – no question of principle.

Application for leave to file a cross claim out of time – delay in bringing cross claim – agreement that the issues arising out of the cross claim will not be determined on the allocated hearing date on liability already fixed – previous agreement by the cross claimants not to advance claims in relation to certain issues in consideration of the plaintiff abandoning a number of paragraphs of the statement of claim

LOCAL GOVERNMENT - Injunction to prevent the closure and sale of a portion of a public road - Loss of access to rear of property for plaintiff - Plaintiff's right of access to public road defined by Roads Act - Plaintiff has statutory entitlement under s 36 Roads Act to make submissions to Minister regarding road closure - Injunction not granted - No basis for a grant of final relief demonstrated - No utility in injunction sought

Adoption of children - intercountry adoption from Convention country - application of Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) rather than Adoption Act 2000 (NSW) - compliance with Hague Convention on Intercountry Adoption - whether the court should make orders dispensing with notice to and consent by parents - considerations affecting change of forenames - whether Registrar of Births, Deaths and Marriages is required to register an adoption order made under the Commonwealth Regulations - whether court has power to make order to change adopted child's date of birth - grounds for making a finding as to date of birth - court's power to direct Registrar of Births, Deaths and Marriages to register adoption and date of birth under s 19(2) of Births, Deaths and Marriages Registration Act 1995 (NSW) - law reform

COSTS - Failure of communication between the two opposing firms of solicitors - Deed governing handover of the file not served as required - Insufficient action taken by both parties - Costs lie where they fall

PROCEDURE – trial judge ordered the defendant to transfer property – defendant’s application for stay of judgment pending determination of appeal granted – order made directing the parties to file submissions as to the appointment of a receiver – costs of appointment found to outweigh benefits – appointment not made – order that stay continue

PROCEDURE – Contempt, attachment and sequestration – Contempt – What constitutes –Disobedience of orders of court – Procedure – Difference between civil and criminal contempt – Statement of charge – Facts required to be proved to establish charge – Elements of charge – Whether information in charge comprised elements or particulars of charge – Whether all particulars of charge required to be made out for each element of charge to be proven – Evidence – Burden and standard of proof – Whether each element of charge proved beyond reasonable doubt – Interpretation – Construction of court orders – Whether primary judge erred in construing orders in accordance with definitions and terminology in Corporations Law – Whether primary judge erred in substituting a reference in orders to repealed Corporations Law for Corporations Act – Construction of phrase “undertaking a business” – Whether sending letter to 1,650 recipients containing investment advice amounted to undertaking a business of advising about and dealing in securities - APPEAL – Appeal against sentence – Grounds for interference – Whether primary judge attributed suitable weight to various matters – Bail – Application for bail – Power of Court of Appeal to grant bail in respect of committal for contempt pending determination of appeal and effect of any such grant of bail

Caveator entitled to payment of fee from the proceeds of sale under a marketing agreeement - No charge over property - No caveatable interest in property

LOCAL COURT - appeal - contract - terms and parties - costs - application of Local Court Practice Note 2

TORTS - negligence - personal injury - psychiatric/psychological illness - school bullying - causation - damages - non-economic loss - economic loss