Cases and authorities

EQUITY [35] – General principles – Fiduciary obligations – Conflict of interest and duty – Purchase by agent from principal of property – Liability to retransfer property – Whether allowance to delinquent agent for money expended on property should include allowance for agent’s work and skill in improving property.

STATUTORY INTERPRETATION – acts of parliament – interpretation – effect and operation of s 29(3) Security Industry Act 1997 - implied repeal - Administrative Decisions Tribunal Act 1997, s73 - ADMINISTRATIVE LAW – judicial review – procedure and evidence – challenge to dismissal of appeal from decision of Administrative Decisions Tribunal that appellant provide respondent with particulars as to why application for security licence refused - ADMINISTRATIVE LAW – judicial review at common law – administrative decisions — original jurisdiction of court — application for judicial review of appealable decision where Administrative Decisions Tribunal Appeal Panel bypassed — exercise of discretion — Administrative Decisions Tribunal Act 1997, ss 113, 122, 123.

CORPORATIONS - management and administration - inspection of or access to financial records, registers, documents and other information of company – order sought under s 247 of the Corporations Act 2001 (Cth) – application made in good faith and for proper purposes – order for inspection made – no question of principle

Traffic law - appeal from Local Court - speed camera - school zone - elements of offence

CORPORATIONS – other matters – statutory demands – application to set aside creditor’s statutory demand under s 459G of the Corporations Act 2001 (Cth) – non-appearance of defendant – no question of principle

Local Court Appeal - Sale of Goods Act 1923 - decision upheld.

CRIMINAL LAW AND PROCEDURE - Supply of prohibited drug - Trial by judge without jury - No error by judge in approach or in findings - Sentence - Standard non-parole period applied - No basis for reduction of sentence demonstrated

CRIMINAL LAW AND PROCEDURE - Sentence - Offenders engaged in major cannabis cultivation - One offender engaged in two crops - Taking offence into account on Form 1 - Asserted errors by sentencing judge rejected - Parity - No particular point of principle - Sentences well within appropriate range

Criminal Law - Sentence - Home invasion - Crimes Act s 112(3) - offence above mid range - whether sentence manifestly excessive.

Bail - review by Crown of grant of bail in District Court - whether "special or exceptional circumstances" established

ADMINISTRATIVE LAW - adminsitrative tribunals - Administrative Decisions Tribunal (NSW) - s 88 Administrative Decisions Tribunal Act 1997 (NSW) - costs application - "special circumstances" - appeal allowed - reconsideration by Appeal Panel to occur after change in the relevant legislation.

MORTGAGES - claim for possession of land following mortgage default - Defendant bankrupt - Official Trustee did not wish to be heard - whether bankrupt Defendant had standing - summary judgment granted

SUCCESSION - wills, probate and administration - proceeds of sale of property held by executor applied to acquisition of property in name of beneficiary - order sought that property be transferred to executor - order made

CONTRACTS - general contractual principles - construction and interpretation of contracts - construction of proviso - whether proviso satisfied - held that proviso not satisfied - claim for specific performance dismissed

Practice and Procedure - pleadings - application for leave to amend statement of claim - whether proposed pleading discloses a reasonable cause of action - whether Plaintiffs have an arguable case - claim in respect to an easement - existence of an actionable right to privacy - nature of relief sought - a Court of Equity can always mould to the circumstances of the proven case the relief which it ultimately grants - nature of relief claimed does not justify striking out of a pleading or dismissal of proceedings - form of pleading - alleged prolixity - standing of various Plaintiffs - joinder of additional Defendant

CONTRACT - parties to terms of settlement intend to obtain consent orders - intention later abandoned - whether intention to be contractually bound - whether grounds for orders under Contracts Review Act - FAMILY LAW AND CHILD WELFARE - de facto relationships - termination agreement - whether binding - whether solicitors' certificates complied with s 47 - consequences of non-compliance

CRIMINAL LAW - sentence after trial - murder - victim the offender's three year-old stepdaughter - no remorse - offender continues to assert innocence - protective custody

CRIMINAL LAW – Sentencing – Crown appeal against sentence – s 11 Crimes (Sentencing Procedure) Act

Corporations Law. Application to set aside Statutory Demand under s 459G of Corporations Act 2001. Offsetting claim established. Demand set aside. No matter of principle.

CONTRACTS - Negotiations between solicitors subject to contract - whether informal arrangement by parties themselves intended to be immediately binding - PARTNERSHIP - Winding up - Negotiations between solicitors subject to contract for agreed winding up - informal arrangement between parties themselves for division of the firm's goodwill - whether intended to be immediately binding

CORPORATIONS - voluntary administration - creditors' meeting - application for adjournment of creditors' meeting - application dismissed

APPEAL - Local Court decision - speeding offences - whether each defendant's mistake as to the applicable speed limit was a mistake of fact or a mistake of law - mistake of law - appeals upheld - orders made - costs

Civil Law - appeal from Local Court - recovery of legal fees - interference with discretion of Court below - refusal by Magistrate to set aside default judgment - Lawyers - duties and liabilities - costs disclosure - who is the client.

CORPORATIONS [1286] – Management and administration – Duties and liabilities of officers of corporation – Disqualification from management of corporations – By court order – Relevant principles.

MORTGAGE – Contracts Review Act 1980 (NSW) – imposition of condition to reduce principal – knowledge of cash flow difficulties – unnecessary for protection of legitimate interests – contract unjust – remedy granted – parties to recalculate amount owing without default interest and charges

CRIMINAL LAW - particular offences - offences against the person - murder - intention to kill - criminal liability and capacity - self defence - CRIMINAL LAW - procedure - trial had before judge without jury - election

Criminal law - manslaughter

Criminal law - sentencing - periodic detention of Prisoners Act 1981 - cancellation of an order for periodic detention in absence of offender - failure to set a minimum and additional term.

CRIMINAL LAW AND PROCEDURE - Sentence - Bribery and false statements - Complex arrangements to acquire unjustified or accelerated payment - No error by sentencing judge in assessment of sentence for individual offences - Submissions of lack of parity and consistency rejected

Criminal law - manufacture of prohibited drugs - parity of sentence

Criminal Law - Crown appeal - particular offence - sexual intercourse without consent - assessment of objective seriousness of offence - relevant factors - consideration of seriousness of digital penetration - sentence manifestly inadequate

Criminal law - sentencing - aggravated car-jacking and robberies in company - assessment of objective seriousness of offences - totality - sentences not manifestly excessive

ADMINISTRATIVE LAW – judicial review – grounds of review – jurisdictional error – misconception of nature of function and powers – supervisory compared with appellate jurisdiction – District Court Act 1973 s 18. - APPEAL – appeal – practice and procedure – New South Wales – District Court – nature of appeal from Local Court – rehearing not supervisory in nature – District Court Act 1973 s 18. - APPEAL - new trial - in general and particular grounds - particular grounds – denial of procedural fairness – failure to provide mandatory statutory adjournment – Legal Aid Commission Act 1979 s 57. - CRIMINAL LAW – jurisdiction, practice and procedure – adjournment, stay of proceedings or order restraining proceedings – adjournment – failure to provide mandatory statutory adjournment – denial of procedural fairness – Legal Aid Commission Act 1979 s 57.

CONTRACTS – general principles – construction and interpretation of contracts – contract for maintenance and servicing of earthmoving machines – whether appellant warranted that machines would be available for quantifiable minimum number of hours - APPEAL – appeal – whether trial judge omitted to address pleaded defences – whether proceedings should be remitted to trial judge

Application to consolidate proceedings

Application to amend statement of claim - complex claims of breach of trust and oppression in management of companies - whether allegations disclose arguable causes of action - whether leave should be refused on ground that causes of action are barred by the Limitation Act - whether leave should be refused in order to separate issues - leave granted

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute as to existence of debt

Criminal Law - sentence - murder of parents 15 years ago.

COSTS - proceedings remitted for further hearing on issue not yet litigated- outstanding Calderbank offer- judge on remitter to determine costs of hearing at first instance

ENVIRONMENT AND PLANNING – environmental planning – planning schemes and instruments – local environmental plans – state environmental planning policies – whether a prohibition on development for the purpose of caravan parks in a local environmental plan was inconsistent with the state environmental planning policy – definition of “caravan park” – whether the terms “moveable dwelling” and “manufactured home” imported a degree of permanency of habitation or occupancy – whether the permissibility of development with consent of caravan parks for the purpose of “tourist facilities” allowed for the construction of manufactured homes for permanent or long-term residence

PROCEDURE - trial judge mistakenly had regard to material not in evidence - later amended reasons - stated had come to his conclusion without regard to the material and had referred to it only as confirmatory of conclusion - whether denial of procedural fairness - whether apprehended bias - mistake disclosed and submissions heard - no question of procedural fairness - from initial reasons, conclusion all but demanded without regard to the material - that the reference was only confirmatory could not reasonably be questioned - no apprehended bias - CONTRACTS - promise not to engage in conduct which might harm respondent's name or reputation or that of a related body corporate (as defined) - whether necessary to prove knowledge that conduct might harm or injure etc - including that company disparaged was related body corporate - on construction of contract, not necessary - EQUITY - injunctive relief - breach of negative covenant - relief will be granted in terms of covenant unless good reasons to the contrary - relationship with principle that order should generally be expressed to make clear what is to be done or not done - not absolute principle - goes to discretion - on contract's construction, could be unintentional or unknowing breach - contractual acceptance of risk of unintended or unknowing breach - not satisfactory to leave respondent to remedy in damages - grant of relief upheld with incidental changes.

PRACTICE AND PROCEDURE - security for costs - order made for security for costs in 2007 - application for further security for costs - applicable principles - application dismissed

CRIMINAL LAW AND PROCEDURE - Unlawfully causing a person to take a stupefying thing contrary to s 38 Crimes Act 1900 as in effect at the time - Meaning of "unlawfully" - Alcohol a stupefying thing within the meaning of the provision - Amending legislation no indication of previous ambiguity - R v Murcott 1893 XIX VLR 408 followed

CRIMINAL LAW AND PROCEDURE - Sentence - "Discount" obtained for undertaking to give evidence against co-offender - Offender reneges - Miscarriage of sentence viewed in hindsight - "Discount" should be removed - Crown appeal allowed

LEGAL PRACTITIONERS - lawyers - other matters - whether solicitor negligent in handling of clients' case - whether clients exercised control over conduct of proceedings - whether advocate's immunity applies - no point of principal - TORTS - negligence - essentials of action for negligence - damages - loss of a commercial opportunity

INTELLECTUAL PROPERTY - copyright – employee emailed employer’s documents to which copyright attached, to her home email address – infringement of copyright under Copyright Act 1968 (Cth) – nominal damages awarded - no additional damages awarded under Copyright Act 1968

Motion for dismissal for want of prosecution – motion dismissed.

EVIDENCE - action by clients against former solicitors - client legal privilege - s 122 of Evidence Act 1995 - whether client legal privilege lost - importance of pleadings - applicability of tests of relevance and fairness - PRACTICE - discovery of documents - client legal privilege - principles applicable to claims by clients against former solicitors

PROCEDURE [552]- Costs- Consolidated proceedings- Multiple parties- Overlapping issues- How costs dealt with. TORTS [22]- Negligence- Economic loss- Lender on mortgage sues mortgage originator- Held no duty of care.