Cases and authorities

TRADE PRACTICES – misleading and deceptive conduct – statement of opinion made on reasonable grounds – no question of principle - CORPORATIONS – directors’ duties – one company to a joint venture borrowed money on mortgage security – mortgagee company was controlled by a director of the other joint venture company – the capacity of the mortgagor company to reimburse the other joint venturer for expenses incurred was thereby prejudiced – the director stood to profit personally through his controlling interest in the mortgagee to the detriment of the joint venture company of which he was a director – equitable compensation ordered against director - TORT – intentionally inducing breach of contract – term of debentures that no other lenders were to take priority – company subsequently lent money on mortgage security – directors had relied upon legal advice as to the lawfulness of their actions – bona fide belief that this was not a breach of contract – no damage proven - REAL PROPERTY – registered mortgage – indefeasibility – whether fraud exception to indefeasibility arises – no intention to cheat where legal advice relied upon - ESTOPPEL – conventional estoppel – whether relationship conducted on the basis of a mutual assumption – no relevant transaction between debenture holder and mortgagee – mortgagee did not cause the debenture holders to adopt the assumption - CORPORATIONS – directors’ duties – term of debentures that no other lenders were to take priority – money lent on mortgage security – capacity of company to repay debentures was thereby prejudiced – director was the controlling mind of the mortgagee company – the director stood to profit personally through his controlling interest in the mortgagee to the detriment of the debenture holders – shareholders must act bona fide for the benefit of the company as a whole and not unfairly prejudice a third party in order to ratify a breach of directors’ duties – debenture holders needed to be considered given the company’s financial situation – no consent to breach of fiduciary duty - REAL PROPERTY – registered mortgage – indefeasibility – whether in personam exception to indefeasibility arises – mortgagee knowingly received property transferred in breach of a director’s fiduciary duty – mortgagee without registration would have been personally liable as a constructive trustee under the first limb of Barnes v Addy – in personam exception to indefeasibility does not extend to cases of a constructive trust under the first limb of Barnes v Addy at least in relation to proprietary claims

TAXES AND DUTIES [346]- Stamp duties on leases- Plaintiff acquires call option to enter into lease and sublease agreements- Whether proposed lease instrument dutiable- Whether call option fee part of the dutiable costs of the lease being a "premium" paid or payable in respect of the lease- Held that "premium" means money paid in consideration for the grant of leasehold interest- In the instant case, amount was paid for the grant of an option- No leasehold interest existed at the relevant time. WORDS & PHRASES- "Premium"- "In respect of"- "Evidence of".

CONTRACTS – proof of terms – inference that debt remained unpaid to date of hearing – whether agreement to pay very high rates of interest as damages for late repayment unenforceable as a penalty

CONVEYANCING – Contract for sale of land – Whether contract validly terminated – Whether implied or express obligation on part of Purchaser to construct drainage works – Whether Vendor could terminate for failure to register easement within time specified - Whether repudiation of contract – HELD: No express or implied obligation to construct drainage works – Vendor unable to terminate for failure to register easement without first allowing a further reasonable time –Vendor under express or implied obligation to cooperate in relation to satisfaction of condition subsequent - No repudiation – Purported termination ineffective. - EQUITY – Relief – Whether appropriate to order specific performance in the circumstances - Whether declaratory relief of utility – HELD: Not appropriate to order specific performance – Declaratory relief of utility – Declaration made.

LIMITATION OF ACTIONS - proceedings against solicitor and barrister for professional negligence - applications by defendants for summary dismissal or striking out of statement of claim - plaintiff's dismissal from employment - alleged failure of defendants to lodge application for relief to the Industrial Relations Commission within time limited by relevant legislation - when cause of action in negligence arose

CRIMINAL LAW – SENTENCING – Appeal against severity of sentence – plea of guilty to one count of discharging firearm with intent to prevent lawful apprehension and other firearm offences – where applicant was suffering mental illness at the time of the offence – whether error in objective assessment of case as near worst category of case – whether error in finding operation of general deterrence only marginally reduced – whether sentence is manifestly excessive – consideration of impact of mental illness on sentencing exercise – general deterrence of less importance in this case although counter-balanced by other matters – sentence not manifestly excessive

MORTGAGES - Construction - whether mortgages in suit secured liability of mortgagors as guarantors or principal indebtedness of third party - where mortgages interdependent upon another agreement and executed at the same time as the documents including a mortgage - Construction - extent to which extrinsic circumstances can be taken in to account in construing mortgages - Surety - whether mortgages ought to be construed in favour of mortgagors as sureties

EVIDENCE – District Court appeal from Local Court – identification evidence – asserted failure of tribunal of fact to direct itself as to the caution required in considering identification evidence - JURISDICTIONAL ERROR – Supreme Court Act 1970 (NSW) s 69 – transcript lacking formal mark of certification did not render determination invalid – absence of reasons said to be jurisdictional error – absence of self caution as to identification said to be jurisdictional error – asserted failure to conduct an appeal by way of rehearing said to be jurisdictional error - REASONS FOR DECISION – obligation to give reasons – extent of obligation to give reasons – asserted failure to give reasons - WORDS & PHRASES – meaning of “certified”.

EVIDENCE - expert evidence - question whether Council's approval required under planning instrrument for particular activity on land - planning instrument refers to "agriculture" in a defined sense - whether expert can give evidence about application of legal standard - whether opinion about meaning of "agreement" based on expert's specialised knowledge - whether such opinion of probative value

COMMON LAW - appeal from Local Court - whether error in point of law - whether Magistrate misdirected herself as to the effect of orders striking out the statement of claim

CRIMINAL LAW - Practice and Procedure - Application for access to exhibits by media interests - Power to permit photographing or filming of non-documentary exhibits - Scope of Court's discretion - Principles of open justice

PENALTY – whether contractual provision a penalty – whether forfeiture of accrued property - FORFEITURE – relation of forfeiture to imposition of penalty - CONSTRUCTION OF CONTRACTS – penalties

ENVIRONMENT LAW – legislation generally – contribution towards provision or improvement of amenities or services required under s 94 Environmental Planning and Assessment Act 1979 – appellant obtained development consent to effect subdivisions of land subject to condition that it pay contributions towards cost of infrastructure – appellant complied with condition – council adopted new Contributions Plan purporting to require additional contribution when in the future the owner of a lot in the subdivision sought consent or complying development certificate in respect of the erection of a dwelling on the lot – validity of purported condition – scope of validity of contributions plans – trigger for operation of s 94 Environmental Planning and Assessment Act – “development” for which “development consent” is sought – extended definition of “development” in s 4 of Act – whether fact that Council has made a prediction for s 94 purposes as to the likely effect of proposed development on requirement or demand for public amenities or services precludes it from making another prediction for s 94 purposes when development consent sought in respect of further development of land – whether provision of Contributions Plan that purported to oblige accredited certifier to impose a condition requiring payment of contributions upon complying development certificate invalid – construction of s 94EC(1)(a) Environmental Planning and Assessment Act – whether granting of subdivision consents impliedly grants consent to lots in subdivision being put to residential use – significance of unavailability of rights of appeal in respect of condition imposed upon complying development certificate – where right of appeal would be available in circumstances where condition imposed on development consent – s 85A(10) and s 94B(3) Environmental Planning and Assessment Act

CORPORATIONS - defunct company - application for order reinstating registration - where company deregistered before commencement of Corporations Law (1 January 1991) - source of jurisdiction to make reinstatement order - such order may only be made within 15 years after deregistration - now more than 18 years since deregistration - whether time may be extended by court - whether plaintiff aggrieved by deregistration - whether reinstatement of registration just - whether time should be extended - whether company should be wound up

EVIDENCE - admissibility and relevance - admissions - hearsay statements - whether it is reasonably open to find that the statements were made with the authority of the defendant - whether it is reasonably open to find that statements were made in furtherance of a common purpose of the maker and the defendant - whether discretion against admitting should be exercised - where defendant can remedy position by resort to s 81(2)

FAMILY LAW - de facto relationship - adjustment of interests in property - relationship of five years - one child born to parties during relationship - other infant children of each party forming part of household - identification of property of parties - value of property - consideration of matters relevant to parties' contributions - EQUITY - constructive trusts - money of another party may have been used to pay part of mortgage debt - whether that party thereby obtained interest in property

PUBLICATION – non-publication order – evidence and submissions in previous applications and reasons for judgment – published in reported series available to public – whether prejudice – whether necessary and appropriate to protect future jury trial – whether necessary for utility of appeal procedure – whether error in refusing to make or continue order prohibiting publication of material – where further trial speculative.

CRIMINAL LAW – Appeal against conviction – Aggravated sexual assault – Evidence that complainant had drunk substantial quantities of alcohol – Whether warning pursuant to s 165 of the Evidence Act 1995 should have been given – Telephone intercepts in which the appellant asserted to the effect that what had happened was consensual and that he had been greatly intoxicated – Whether jury’s verdict unreasonable.

Family Provision. Application by defacto partner of deceased. Partners for 8-1/2 years. No contribution to estate. Whether appropriate to allow provision of funds for a house. Held in circumstances not appropriate. Plaintiff with large Centrelink debt. Whether provision would still be for her benefit or contrary to public policy. Orders made for trust for plaintiff.

EVIDENCE [56] - Admissibility and relevancy - Opinion evidence - Expert opinion - Report to contain facts and assumptions of fact on which opinion based - Qualifications of witness - Compliance with expert witness code of conduct – Very late compliance with requirements for admissibility.

SUCCESSION - family provision - claim by adult son - Plaintiff given a legacy of $10,000 - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - nature and extent of relationship between Plaintiff son and Deceased - statement of Deceased admissible in evidence - obligation upon applicant to place before the Court as fully and as frankly as possible all information concerning applicant's financial and material circumstances - competing claims of residuary beneficiaries (other children of Deceased) SUCCESSION - family provision - claim by de facto partner of at least nineteen years - no testamentary provision for de facto partner - whether de facto partner was still such at time of death of Deceased - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claims of residuary beneficiaries (two children of Deceased) - obligation upon applicant to place before the Court as fully and as frankly as possible all information concerning applicant's financial and material circumstances - order capping costs of Plaintiff.

APPEAL AND NEW TRIAL [102] – Appeal – General principles – Points and objections not taken below – When not allowed to be raised on appeal – Questions not raised on pleadings or in argument – Particular cases – Other matters – Claims not encompassed in statement of claim – Whether relief on those claims may be granted – Whether parties choose to fight the case on issues chosen at the trial - CORPORATIONS [1245], [1246], [1247] – Management and administration – Duties and liabilities of officers of corporations – Fiduciary and related statutory duties – Of care, skill and diligence – To act honestly – Duties involving conflicts of interest – Generally – Ambit of foregoing duties - TRADE AND COMMERCE [80] – Trade Practices and related matters – Consumer protection – Misleading, deceptive or unconscionable conduct – Character and attributes of conduct – Representations – As to future matters – Reasonable grounds for making representations – Evidentiary burden on representor to prove reasonable grounds – TPA s 51A, ASIC Act s 12BB – Sections do not apply where it is alleged that director caused or permitted company to make the impugned representations.

CONTRACTS [130]- Repudiation- Held on facts that plaintiff was not prepared to perform the memorandum of understanding ("MOU")- Defendants justified in terminating the MOU. EQUITY [36]- Fiduciary obligations- MOU- First defendant or its nominee agree to seek and exercise option on behalf of company to be formed in which members of the plaintiff company would be shareholders- Liberty of one party to make business decisions "on behalf" of another not a determinative indicia of fiduciary relationship- Parties in this case are commercial persons of equal bargaining power- Plaintiff considers MOU arrangement as "collaborative" in nature- No fiduciary obligations. EQUITY [53]- Unconscionable conduct/equitable fraud- Whether second defendant's exercise of the option unconscionable in the sense of the Pallant v Morgan equity- Agreement that plaintiff would surrender rights and defendants would obtain option for benefit of plaintiff's shareholders- Held that alleged detriment suffered by plaintiff's surrender of rights was its contractual duty under contract now terminated- In light of plaintiff's repudiation of contract, no fraud or unconscionable conduct found.

ASSIGNMENT OF CHOSE IN ACTION: Deed of loan between financier and investor in orchard project – offer of assignment of debt capable only of oral acceptance – whether funds actually advanced under deed of loan – whether offer of assignment validly accepted – whether assignment supported by consideration – whether assignment was immediate and unconditional so as to be enforceable in equity. - APPEAL – Application to adduce further evidence under s 75A(7) of the Supreme Court Act 1970 (NSW) – whether “special grounds” where evidence could have been obtained at trial.

BANKRUPTCY – effect of bankruptcy on property and proceedings – whether proceedings were in respect of a provable debt – plaintiff alleged to have forfeited his equitable interest in the property prior to bankruptcy – defendant the legal owner then asserted his right to possession – proceedings not in respect of a provable debt - REAL PROPERTY – equitable co-ownership – each co-owner entitled to occupy the whole property – whether plaintiff’s equitable interest forfeited – whether defendant entitled to judgment for possession

TRUSTS AND TRUSTEES - Charitable trusts - Cy-pres scheme in place of failed trust - original trust for "distressed subjects of the British empire without regard to race or creed" - meaning of "distressed".

WILLS, PROBATE AND ADMINISTRATION – informal wills – whether suicide note should be characterised as the deceased’s will - WILLS, PROBATE AND ADMINSTRATION – construction – meaning of ‘all my belongings’ – informal will drafted by a layman – no real property – words sufficiently wide to bequeath whole estate

Motor vehicle accident - plaintiff very severely brain damaged - isues of negligence and contributory negligence - application of agony of moment/emergency principles to both parties - Assessment of Damages in view of plaintiff's condition - non provision of purpose built house - plaintiff unaware of his surroundings or his condition - rehabilitation improbable - limited physiotherapy - future medical care and treatment - limited life expectancy

EQUITY [99] – Trusts and trustees – Classification of trusts in general – Implied trusts – Resulting trusts – Where intention presumed – Not in favour of de facto spouse - Rebuttal of implication – Evidence re intention of now deceased transferee.

APPEAL - Costs Review Panel - sublease - costs payable by non-associated third party payer

JUDICIAL REVIEW - Liquor Administration Board

CRIMINAL LAW – SENTENCING – Appeal against severity of sentence – applicant pleaded guilty to six counts contrary to s 1041G, Corporations Act 2001 (Cth) and two counts contrary to s 300(1), Crimes Act 1900 (NSW) – where both Federal and State sentencing regimes operate – where applicant did not gain a direct financial benefit from conduct – whether total sentences and non-parole period imposed were manifestly excessive – whether error in finding that there was no alternative to full-time custody – whether error in assessment of objective circumstances of the offences – whether there was a failure to take into account the applicant’s subjective circumstances – whether there was a failure to apply the principles of Pearce – as to last ground of appeal, error held in failing to consider separate sentences for each offence before turning to questions of totality – as to other grounds of appeal, gravity of offences and culpability of applicant such that full-time imprisonment only appropriate sentencing option but the effective non-parole period found to be manifestly excessive – consideration of sentencing decisions for white collar crimes contained therein

CRIMINAL LAW - evidence - where tendency evidence tendered for confined purpose as context or relationship evidence - admissibility - requirement that such evidence be relevant to an issue in the trial - improper admission of such evidence - miscarriage of justice - CRIMINAL LAW - appeal and new trial - misdirection by trial judge on permissible use of context or relationship evidence by jury - erroneous submissions by counsel - miscarriage of justice - STATUTES - Evidence Act 1995 ss 97, 101, 135, 137

CRIMINAL LAW - appeal against sentence - attempted armed robbery - aggravated car jacking - pleas of guilty - mental illness - SENTENCE - accumulation - ratio between non-parole period and balance of term - refusal by trial judge to find special circumstances

DAMAGES - CAUSATION IN HYPOTHETICAL SITUATION - INFERENCES - No question of principle

WILLS, PROBATE AND ADMINISTRATION - Probate - Application for revocation of probate - whether testator had testamentary capacity

BUILDING AND CONSTRUCTION – PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) Pt 20 r 20.24 –Both parties contend that report of referee should be accepted but each party contends for variations – where mistakes of law by referee do not effect ultimate outcome of report – where factual findings made were open to the referee on the evidence – Report adopted without variation except those agreed or not contested

CORPORATIONS - bodies corporate other than companies and associations - co-operative registered under Co-operatives Act 1992 - application under s 344 for order approving arrangement with members - arrangement agreed to by special resolution passed by special postal ballot - all shares in co-operative to be transferred to acquiring party pursuant to arrangement - inactive members' shares affected even though they have no voting rights - whether "plebiscite" of inactive members desirable - whether arrangement proposed for avoidance purpose referred to in s 353 - function of court under that section discussed - power under s 344(3) to approve subject to amendment - whether amendment should be accepted - CORPORATIONS - companies registered under Corporations Act 2001 (Cth) - proposed registration of co-operative as such a company - continuity of existence of legal entity - continuity of existence of shares and interests in shares - CORPORATIONS - regulation and control of takeovers - acquisitions beyond 20% takeover threshold - where party has "relevant interest" in 100% of shares before body becomes a Corporations Act company - whether subsequent transfer of 100% of shares to that party involves breach of 20% threshold

COSTS – Bullock order – Sanderson order – discretion – principles governing grant of orders – whether reasonable and proper for plaintiff to have sued successful defendant – where joinder of successful defendant by plaintiff occurred at a time when it was already joined to the proceedings by way of cross-claim by the parties against whom costs order is sought – where those parties denied liability – where those parties were sued under statute while the successful defendant was sued in tort

Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Misdescription of name of creditor in demand and affidavit verifying. No substantial injustice and no sufficient other reason under s 45GJ. Proceedings dismissed.

CRIMINAL LAW - appeal against conviction - wound with intent to murder - detain for advantage - whether miscarriage of justice - failure by Crown to call witness - admissibility of evidence - fact in issue - credibility of witness - collateral evidence rule - appeal dismissed

EQUITY – FIDUCIARY OBLIGATIONS – PARTNERSHIP – PROCEDURE – Clean hands defence – Whether conduct must be directed against defendant – Whether conduct had sufficiently close relationship to the equity sued for – Whether conditional relief appropriate – Remedies – Account – Whether accounting party should account for whole of proceeds of sale of property of which he was not proved to have total beneficial ownership – Whether party whose beneficial interest in the property was not excluded should be a party to the accounting – Whether appropriate to reserve substantive issues for further consideration.

APPEALS – revocation of leave to appeal – appeal against a decision that court had no jurisdiction – where that decision is clearly right – where no live contender for the appeal – costs

SUCCESSION - family provision and maintenance - failure of testator to make sufficient provision for applicant - whether child left with insufficient provision - provision found to be insufficient - whether estate included debt in respect of moneys advanced to or for benefit of adult child - whether there had a been prescribed transaction - whether an order designating property as notional estate should be made - relief granted. SUCCESSION - family provision and maintenance - practice - application for leave to extend time for making a claim against second cross-defendant - whether sufficient cause

JUDICIAL REVIEW - Investigation, student teacher

MORTGAGE – claim for possession of land – whether land owned by farmer and used for farming operation under Farm Debt Mediation Act 1994 – held not – whether contract unjust under Contracts Review Act 1980 – held not – whether relief available for unconscionability – held not