Cases and authorities

CORPORATIONS - winding up - application for winding up on grounds of insolvency - reliance on non-compliance with statutory demand - preliminary question whether statutory demand served on defendant company - whether left at registered office - registered office situated at an office suite inside an office building - statutory demand left at 8pm in letterbox on outside wall of office building - whether document later actually received

CRIMINAL LAW - Trial - Separate trials for co-offenders - Error in exercise of discretion - Orders for separate trials varied

LOCAL GOVERNMENT- BUILDING CONTROL- A council sought and obtained a declaration from the Land and Environment Court that the appellants had carried out development on their land in breach of a development consent. The appellants were ordered to demolish and remove the unauthorised building work. They appealed against the demolition order. The judge applied the guidelines in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. She correctly interpreted the consent and did not take inappropriate matters into account in forming her discretionary judgment. The appeal thus must be dismissed. - EVIDENCE- PRIVILEGED MATERIAL- Correspondence was sought to be tendered some of which was marked "without prejudice". The reason for the tender was to show that demolition of the whole of unauthorised building work was not required in the public interest. It was argued that s 131(2)(g) of the Evidence Act 1995 justified its admission. On the facts, exception in s 131(2)(g) not applicable.

DEFAMATION – common law qualified privilege – reciprocity of duty and interest – matters complained of published in magazine dealing with matters concerning taxi industry – copies of magazine left for collection at places where general public had recourse – whether published on occasion of qualified privilege - DEFAMATION – common law qualified privilege – whether defence referable to imputations - DEFAMATION – common law qualified privilege – proof of malice – finding that publisher on campaign to publish persistent and negative statements about plaintiff – whether publisher’s ill will actuated publication of matters complained of

COSTS – offers of compromise – indemnity costs – plaintiff to pay the defendant's costs after certain time on an indemnity basis with the exception of separate costs orders in favour of the plaintiff on discrete issues – DAMAGES – loss claimed by plaintiff for attendant etc care unassessed – assessment postponed pending outcome of plaintiff's appeal to Court of Appeal limited to issues of liability

CRIMINAL LAW - Application for a separate trial - Application of revelant principles.

PRACTICE AND PROCEDURE – summary dismissal – orders sought revoking orders of the Children’s Court – interim orders sought invoking the parens patriae jurisdiction – no exceptional circumstances warranting circumvention of the Children’s Court – allegations of perjury and conspiracy in lower courts not supported by evidence – no reasonable cause of action disclosed that would allow the Court to revoke orders of the Children’s Court – orders sought pursuant to the parens patriae jurisdiction were an abuse of process

Whether Court can confer power on trustee to agree to partial surrender or release of trust property (in the nature of security) in return for property (also in the nature of security) to be created by new trusts with same trustee and beneficiaries.

CORPORATIONS - winding up - recovery proceedings by liquidator - preferences received by Commissioner of Taxation - Commissioner asserts defence under s 588FG(2) - only issue concerns existence of reasonable grounds for suspecting insolvency - examination of state of knowledge of all relevant officers of Australian Taxation Office

COSTS - Offer of compromise in District Court - Transfer to Supreme Court - Damages agreed fourteen years later - Significant change in ingredients of damage - Claim for indemnity costs

CRIMINAL LAW - Sentence - Terrorism offences - Principles applicable - Plea at the earliest opportunity - Co-operation by legal representatives - need for general detterence and protection of the community - Failure of accused to give evidence in sentencing proceedings - Weight to be given to statements in forensic psychologist's report

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Whether the demand was in respect of a debt. Held it was not. Demand set aside.

Family Provision. Application by the two children of the deceased. No provision made for one child. Small estate. Order for provision. No matter of principle.

APPEALS – contingent finding on apportionment of liability – purpose of additional findings – status of contingent findings on appeal – whether Court of Appeal should reconsider apportionment and reach its own conclusion – principle of restraint - CONTRIBUTORY NEGLIGENCE – challenge to factual finding leading to conclusion of contributory negligence – whether plaintiff’s vision obscured by plywood – evidence in chief and cross-examination of plaintiff taken out of context - DAMAGES – domestic assistance – gratuitous attendant care services – threshold for damages – commercially provided care services – whether plaintiff required future domestic assistance – reliance on medical reports – Civil Liability Act 2002 (NSW) s 15(3) - DAMAGES – recovery against third party (head contractor), not against employer – adjustment of award on account of culpability of employer – calculation of reduction of overall liability of head contractor – apportionment of liability between employer and head contractor as joint tortfeasors – whether employer’s responsibility greater than head contractor’s responsibility – where employer has limited control over building site – where head contractor responsible for maintaining reasonably safe site – Workers Compensation Act 1987 (NSW) s 151Z(2) - WORKERS COMPENSATION – recovery against third party (head contractor), not against employer – adjustment of award on account of culpability of employer – calculation of reduction of overall liability of head contractor – Workers Compensation Act 1987 (NSW) s 151Z(2) - WORDS & PHRASES – “apportionment” – “gratuitous attendant care services” – “principle of restraint”

CRIMINAL LAW - jurisdiction, practice and procedure - bail - review of decision granting bail pending appeal - whether exceptional circumstances exist - Bail Act 1978, s 30AA

NEW TRIAL – Jury – fresh evidence – application not within Supreme Court Act s 75A. - NEW TRIAL – fresh evidence – discovery of documents – appellant and some defendants failed to discover same documents – such default not ground for new trial – Commonwealth Bank of Australia v Quade distinguished – undiscovered documents not fresh evidence.

CONTRACTS - Real Property - Options - Put and call option for real estate - puported execution of option agreement by grantee - execution in name of company by person described as director who was not a director - whether contract made - CONTRACTS - Agents - principal and agent - option deed signed by person purporting to be director - whether signature by the company or by person as agent for the company - whether resolution giving authority for signature duly passed - whether authority to agent to execute deed must be by deed - PRINCIPAL AND AGENT - act of person without authority - whether signature ratified - whether principal had knowledge of facts at time of acts claimed to amount to ratification - whether ratification of a deed must be by deed in circumstances where deed not required for binding contract - CONTRACT - Termination - whether right to terminate after act of default was exercised - CONTRACTS - Options - conditions listed for exercise - valid exercise giving rise to contract for sale - condition requiring service of notice of exercise and a form of contract executed and dated the date of exercise - documents served but contract not dated - whether strict compliance required - ESTOPPEL - Estoppel by Convention - assumption option contract was valid - assumption brought about by party claiming other party estopped

CORPORATIONS - voluntary administration - extension of time for second meeting of creditors - eleven companies part of substantial world-wide finance group - desirability of certain tasks being completed before administrators convene second meeting - minimal impact of statutory moratoriums

Appeal from Local Court against award for "expenses" of travel and time lost - power to award expenses in Small Claims Division - relationship between "jurisdiction" and "power"

PRACTICE AND PROCEDURE – summary dismissal – de facto relationship property adjustment claim – multiple failures to comply with directions regarding service of affidavits – plaintiff suffers from depression and is the full-time carer for her infirm mother – plaintiff lives rent-free in a property jointly owned with defendant – defendant accepts that plaintiff would be entitled to some relief sought in the proceedings – serious risk that dismissal of proceedings would preclude later proceedings for relief under the Property (Relationships) Act 1984 (NSW) – dismissal refused but self-executing order made for dismissal in the event of a future failure to comply with directions

EVIDENCE - Admissibility and relevancy - Late application to file affidavit correcting mistakes in earlier affidavit and establishing document path to plaintiff of copies of documents of 11th defendant from substantial shareholder and its representatives on board of 11th defendant - Whether leave should be refused as aiding a construct method of proof and because the documents were not included in a tender bundle as ordered - Justice of the case - Whether leave should be granted to ground cross examination for if sought to give evidence in reply may be said to be unjust

PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Late application - Whether prejudice may be cured.

PRACTICE AND PROCEDURE – subpoenae – subpoena issued on ASIC following examinations – legitimate forensic purpose – on the cards that material will assist the plaintiffs’ case – claim for confidentiality outweighed by the interests of the plaintiffs and the public – subpoena not set aside but production limited in the first instance to legal representatives - CORPORATIONS – ASIC – examinations – confidentiality of examinations – s 127(1)(a) ASIC Act requires ASIC to take all reasonable measures to protect confidentiality of information elicited in examinations against unauthorised use or disclosure – whether ASIC required to assert claims of privilege and inspection pursuant to Court’s order not an unauthorised use or disclosure production to the Court – ASIC not a party – evidence did not establish that ASIC could have claimed privilege – not established that ASIC failed to take all reasonable measures to protect the confidentiality of the information

GUARANTEE AND INDEMNITY - whether principal obliged to reimburse or indemnify guarator pursuant to implied term of guarantee or implied contract - whether express request that guarantee be provided - no express or implied request found - no obligation to reimburse or indemnify on claim as pleaded - PROCEDURE - pleading - whether absence of plea re legal consequence of material facts pleaded precluded claim based on implied obligation outside guarantee - HELD that it did not

PRACTICE & PROCEDURE – separate question determined – where no evidence before primary judge – whether Court should rely on facts asserted in statement of claim and admitted by respondent - BUILDING AND CONSTRUCTION – contracts for sale of land subject to residential building work – prohibition on contracts without certificate of insurance – purpose of prohibition – purchaser protection – consequences of contravening s 96A(1) – penalties – power to avoid – whether Part 6 of Home Building Act 1989 (NSW) can be excluded – whether general law principles of estoppel operate over s 96A(3) – Home Building Act 1989 (NSW) s 96A - CONTRACTS – statutory power to avoid contract – where failure to provide certificate of insurance for contract of sale of land subject to residential building work – scope of power – Home Building Act 1989 (NSW) s 96A - EQUITY – estoppel – election – whether estoppel qualifies power to avoid contract under s 96A of Home Building Act 1989 (NSW) – relationship between estoppel and election - STATUTORY INTERPRETATION – purposive construction – statutory language – legislative history – consequences of failure to comply with prohibition on contracts for sale of land subject to residential building work without providing certificate of insurance – whether general law principles of estoppel operate over s 96A(3) – whether precluding reliance on estoppel unfair – consistency of s 96A(3) with s 103D – absence of protection against harsh consequences – predecessors to ss 96A and 103D – legislative history of builders’ insurance for residential building work – economic sanctions for non-compliance with insurance requirements – purpose of insurance schemes – purchaser protection – judicial consideration of similar legislation to interpret s 96A of Home Building Act 1989 (NSW) – Home Building Act 1989 (NSW) ss 96A, 103D, Part 6 – Builders Licensing Act 1971 (NSW) – Building Services Corporation Act 1989 (NSW) ss 94, 95, 97

EVIDENCE [88] – Admissions and declarations – Admissions – Who may make – Agents – Evidence Act 1995 s 87(1)(b) – General manager of company and of affairs of director.

CORPORATIONS - voluntary administration - administrators purportedly appointed to each of several companies by sole director - constitution in one case allowed sole director but in others did not - whether action of sole director effective to cause resolution of board to be passed - in some cases sole remaining director permitted to act in "emergency" - whether appointment of administrators is "emergency" - in other cases act of sole director ineffective - whether curative order should be made - consideration of provision under which order should be made

PROCEDURE - subpoenas - party in one proceeding obtains subpoena for production directed to party in another proceeding - subpoena requires production of items held by party to the other proceedings as a result of production on subpoena and grant of access in that other proceeding - whether instant subpoena is an abuse of process

EVIDENCE - Admissibility and Relevancy - Late tender of documents after examination and cross-examination of witnesses - Whether an explanatory memorandum referring to a link to a website to submissions to the Jackson inquiry is admissible as a relevant business record or as admission against its signatories because of the content of the submissions - Whether the submissions sent to various defendants are admissible against them as admissions by silence in failing to correct the matter in the submissions - Whether board papers relating to confirmation of the minutes of an earlier board meeting are relevant - Whether the balance of the board papers of the later meeting are relevant

APPEAL - Local Court Magistrate - identity of contracting party

LEAVE to institute an appeal in the District Court

BANKING AND FINANCIAL INSTITUTIONS – Banker and customer relationship – Money paid under mistake by banker to customer – Whether mistake fundamental – Whether mistake such as to vitiate intention of bank to make payment – knowledge of customer of bank’s mistake – Whether trust of money arose immediately.

ARBITRATION – appeal from award – grounds of appeal – manifest error on the face of the award – error of law – certainty of commercial law – Commercial Arbitration Act 1984 (NSW), ss 38(5)(a), 38(5)(b) - CONTRACTS – construction and interpretation of contracts – commercial contracts – implied terms – distinction between interpretation and implication of terms – meaning of "interpretation".

COURTS AND JUDGES – Magistrates – summary criminal proceedings – person with alleged mental condition – application to divert from criminal law processes – Mental Health (Criminal Procedure) Act 1990, s.32 – whether proceedings part-heard by first Magistrate following adjournment – proceedings subsequently heard and determined by another Magistrate – application under s.32 refused – failure to give opportunity make submissions before Magistrate expressed a final view on one aspect - the matter under s.32(1)(b) – held denial of procedural fairness in relation to that aspect – whether denial of procedural fairness could possibly have made a difference to the outcome – held a properly conducted adjudication could not possibly have produced a different result – leave to appeal refused

ADMINISTRATIVE LAW – appeal from the decision of the Administrative Decisions Tribunal of New South Wales Appeal Panel – questions of law – whether error of law – plaintiffs pupils at a state primary school – complaints that teachers discriminated against plaintiffs and failed to prevent racist remarks by other pupils - allegations of racial discrimination by an educational authority on ground of race contrary to ss 7 and 17 of the Anti-Discrimination Act 1977 – no error of law demonstrated – proceedings dismissed

TRUSTS – where parties held charge over assets of a jointly owned company which owned certain land – where company went into liquidation and parties sought to purchase the land – where plaintiffs agreed to transfer interests in charge to first defendant – whether transfer to first defendant was absolute or as trustee for their benefit – whether first defendant is a trustee by way of express, constructive or resulting trust and/or estoppel – whether plaintiffs relied on defendants’ representations in respect of the first defendant taking assignment as trustee – where first defendant acquired first mortgage in the land from third party after assignment of the charge – whether first defendant held that interest as trustee for plaintiffs – whether royalties received in right of first mortgagee and chargee held on trust for plaintiffs – where the land was sold to a third party and a percentage of the proceeds were paid to first defendant – whether first defendant holds those proceeds on trust for plaintiffs – whether first defendant entitled to be indemnified from trust assets for expenses incurred – CONSTRUCTIVE TRUSTS – whether first defendant should account for contributions of plaintiffs to a venture that has failed without attributable blame – whether parties intended that contributions to the venture would be returned in event of failure – whether venture failed - EQUITABLE ESTOPPEL – whether first defendant is estopped from asserting that the assignment to her was absolute or other than as trustee – whether defendants knowingly induced an expectation in plaintiffs that defendant would take assignment of charge as trustee – whether plaintiffs acted in reliance on that expectation – whether distrust between parties negatives reliance on representation – whether absence of writing precludes a finding of equitable estoppel - SALE OF LAND – requirement for writing – whether an agreement between two or more parties to purchase land from a third party is an agreement for the sale or other disposition of land – whether an agreement that a person is to hold land as trustee upon its purchase is an agreement for the sale or other disposition of land – whether requirement for writing affects interest by way of equitable estoppel - MISLEADING AND DECEPTIVE CONDUCT – (NSW) Fair Trading Act 1984, s 42 – whether representations made by defendants to plaintiffs that first defendant would take assignment as trustee for them amounted to misleading and deceptive conduct – where representations were as to a future matter – whether defendants had reasonable grounds for making representations - EVIDENCE – where first defendant did not give evidence – permissible inferences from failure to give evidence.

CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – construction of proviso – whether summing-up lacked balance and unfair – where trial judge omitted information from summing-up – whether trial judge erred in directions to jury – adequacy of correction of errors – whether directions confused jury – counsel objections to directions – corroboration of complainant’s evidence – Criminal Appeal Act 1912 (NSW) s 6(1) – Criminal Appeal Rules (NSW) r 4 - CRIMINAL LAW – jurisdiction, practice and procedure – appeal against conviction – not on question of law alone – leave required – Criminal Appeal Act 1912 (NSW) s 5 - SENTENCING – standard non-parole period – whether trial judge gave proper weight to offender’s mental illness – whether offence in the middle of the range of objective seriousness – where offender convicted of aggravated sexual intercourse – where complainant young child – harm to complainant – where offender segregated and schizophrenic – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A, 54B - WORDS & PHRASES – “miscarriage of justice” – “question of law alone”

EVIDENCE – standard of proof – on balance of probabilities - where house and contents damaged by fire – onus on plaintiff to show that fire caused by negligent acts and omissions alleged against defendants – tribunal of fact must feel sense of actual persuasion – circumstantial case – not necessary for proof on balance of probabilities that all possible causes inconsistent with negligence be excluded. - EVIDENCE – expert opinion evidence – distinction between inference and speculation – expert evidence as to causation – whether more than conjecture - tribunal of fact not bound to accept opinions of experts. - CONTRACT – breach of contract – need to prove that alleged breach caused loss – tribunal of fact not bound by experts’ opinion as to existence of causal link. - NEGLIGENCE – duty of care – need to prove that alleged breach caused loss – tribunal of fact not bound by experts’ opinions as to existence of causal link. - PRACTICE – discretion to allow affidavit to be read when maker not available, when required, for cross-examination – no question of principle.

Insufficiency of reasons - failure to make critical factual findings

Strike out defence

TRUSTS & TRUSTEES – Gift in remainder of fund “on various charities to be mentioned” – various persons and institutions named – question of which were charitable organisations – whether gift to charities rateable or in equal shares – fund established on death of life tenant in 1939 - CHARITIES – Charitable trusts – gifts to charitable organisations in existence at death of testator – cy-pres orders made - PRACTICE & PROCEDURE – Original proceedings commenced in 1943 – further consideration reserved under 1944 orders – order made in 1948 setting aside the fund until further order - no further useful action until 2005 and the new action commenced in 2007 - orders made in the new action

ADMINISTRATIVE LAW – draft local environmental plan – draft control plan – development application – mandatory considerations – whether Council considered development application with reference to draft local environmental plan – presumption of regularity – prohibition on retail premises exceeding 400m2 – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - APPEAL – whether orders available in trial context available on appeal – jurisdiction and powers of Land and Environment Court – powers of Court of Appeal in appeal from class 4 proceedings – exercise of power under Division 3 of Part 3 of the Land and Environment Court Act 1979 (NSW) – Environmental Planning and Assessment Act 1979 (NSW) s 124 – Land and Environment Court Act 1979 (NSW) ss 25A, 25B, 25E, 58 – Supreme Court Act 1970 (NSW) s 75A - ENVIRONMENT AND PLANNING – consent – conditions of consent – conferral of function on Director-General of Department of Planning where not consent authority for purposes of development application – Director-General not subject of statutory constraint - ENVIRONMENT AND PLANNING – development application – deferred commencement consent – conditions of consent – whether consent accords with development application made – whether consent definitive – whether conditions of consent involve substantial changes to proposed development – whether conditions of consent assessable according to clear criteria – reconfiguration of levels in development and car parking space required – Environmental Planning and Assessment Act 1979 (NSW) ss 78A, 80, 80A - EVIDENCE – presumption of regularity – whether presumption operates where evidence exists from which an inference could be drawn – party with burden of persuasion – whether basis for finding invalidity of exercise of statutory authority – whether failure to comply with necessary precondition to exercise of power – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - WORDS & PHRASES – “clear criteria” – “consent” – “details” – “presumption of regularity” – “project”

APPEAL - Appeal from decision of District Court which allowed an appeal from a care and protection order made by the Children’s Court under s 71 (1) (c) of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) - RELIEF - Application for relief in that nature of certiorari under s 69 of the Supreme Court Act 1970 - EVIDENCE - Burden of proof – Allegation that father had sexually abused five year old daughter – whether trial judge correctly applied standard of proof – application of s 140 (2)(c) of the Evidence Act 1995 – whether matter should be remitted to the District Court

LEGAL PRACTITIONERS – delinquency in conduct of appeal – inadequacy of written submissions leading to unacceptable delays and additional work – legal practitioners’ serious neglect causes client to breach duty to assist court to discharge overriding purpose of Civil Procedure Act – wasted costs – whether payable on ordinary or indemnity basis – legal practitioners to pay to the client indemnity costs client ordered to pay other party to appeal – Civil Procedure Act 2005 s 56, s 98, s 99 – Supreme Court Rules 1970 Pt 51 r 40, r 46, r 47

Criminal Law - Trial by Judge Alone - Defence of Mental Illness.