Cases and authorities

Landlord and tenant – commercial lease – scope or extent of permitted use – “warehousing, storage and distribution” – warranty by lessor to ensure that premises are in a reasonably fit condition for use at the commencement of the lease – scope of the warranty – construction of terms of lease as to permitted use and special condition permitting loading and unloading of containers – implied term that area on which loading and unloading of containers permitted were fit for the purpose of loading and unloading containers – approach in determining what is a reasonable manner of performing permitted use of leased premises – whether breach of lease and breach of duty of care by lessor in using heavy container handler – knowledge and acquiescence of lessor over nine months

Corporations. Winding up of company in insolvency. Whether statutory demand was validly served by leaving it at the building in which the registgered office was situated. Held it was validly served. Order for winding up.

CRIMINAL LAW - accused charged with murder and attempted murder - inquiry into fitness to be tried - finding of unfitness to be tried

ADMINISTRATIVE LAW – whether breach of procedural fairness – whether breach of statutory obligations – where Tribunal has the discretion under regulations to proceed to hear a matter ex parte if a party has failed to attend the hearing – where party was waiting outside the hearing room but the court officer failed to approach it – whether prerogative relief would be futile

APPEAL - Local Court Magistrate - Duty of care - vulnerability

CORPORATIONS - winding up - application for examination summons - where person concerned resident in Hong Kong - leave to serve outside Australia - letter of request to Hong Kong court to act in aid of, and be auxiliary to, this court in conducting examination

CRIMINAL LAW AND PROCEDURE - Trial without jury - Murder and wound with intent to murder - Mental illness of accused - Special verdicts

COMMON LAW - vexatious litigant - application for leave to institute proceedings - complaints of professional misconduct referred to the Medical Tribunal by the HCCC against the applicant - alleged breaches of duty of care and contract by the HCCC - alleged failure by the HCCC to investigate complaints expeditiously - alleged failure to refer complaints to the Tribunal - alleged failure to discontinue dealing with complaints - indemnity costs

Local Court Appeal - Oral 'tit for tat' agreement between solicitor and builder - void costs agreement - builder engaged to do clerical work for solicitor and sues on quantum meruit - rate of remuneration - question of fact - builder engaged by solicitor as expert witness in unusual circumstances where he assumes liability for payment of fees - quantum meruit claim - indifferently drafted amended statement of claim - case conducted and decided on particular basis - GST payable on amounts awarded

TRADE AND COMMERCE – misleading and deceptive conduct – no reliance on representations where true position known prior to contract – no question of principle

COSTS – plaintiff succeeded at trial after 12 day hearing – defendants ordered to pay $10,000 and interest on a total failure of consideration – plaintiff's original claim for significant damages failed – whether plaintiff entitled to costs of the whole of the proceedings or only a proportionate part thereof – defendants ordered to pay 25 per cent of the plaintiff's costs of the proceedings

CRIMINAL LAW - appeal against sentence - pleas of guilty - maliciously inflict grievous bodily harm - malicious wounding - whether sentence manifestly excessive - objective seriousness of the offence - immediate post crime ameliorating conduct entitles appellant to mitigation of sentence

CRIMINAL LAW - Appeal - Practice and Procedure - Majority Verdicts - Jury Directions - Preconditions for the application of s 55F Jury Act 1977 (NSW) - Giving of a majority verdict direction at the same time as giving a Black direction - Appeal allowed

Criminal law - conviction and sentence appeal - sexual crimes - different jury verdicts - jury verdicts not unreasonable - proper allowance not made for special circumstances

MANAGED INVESTMENT SCHEMES - two Australian registered schemes holding redeemable shares in Cayman Islands mutual fund companies, which invested in asset-backed and credit securities exposed to "US sub-prime mortgages" and global credit markets decline - redemptions and new applications suspended in mid-July 2007 - responsible entity's duties under s 601FC(1)(k) and (m) - whether "June Applicants" (applicants for new units in June 2007) are entitled to a refund of application money - proper construction of scheme constitutions and product disclosure statements - effect of s 1017E of Corporations Act - whether "June Redeemers" (who gave timely notice of redemption to take effect on 2 July 2007) are creditors at a redemption price calculated as at 30 June 2007 - proper construction of scheme constitutions - effect of ss 601KA-601KE - whether, and when, schemes were "liquid" - whether, in fact, fourth defendant withdrew its redemption request

Calderbank letter does not automatically result in an order for costs - Claimant bears the onus of proving it was unreasonable not to accept the offer - First offer made before the service of material evidence - Second offer open for merely one week - Calderbank letters expressed to be inclusive of costs

Specially aggravated form of kidnapping - two victims - accumulation - pleas of guilty - assistance to authorities - parity

PRACTICE & PROCEDURE - notices to produce for inspection under UCPR 21.10 - whether validity can be assessed under Part 34 - whether documents sought are relevant to facts in issue - whether, when deponent of affidavit says he has been "advised" by his solicitors, the affidavit refers to a document or thing for the purposes of rule 21.10(1)(a) - CORPORATIONS - winding up - liquidator's application for order under s 597A for filing of affidavit - whether Court has discretion to decline to make order - whether matters going to discretion are relevant to a fact in issue on the application - liquidator's application for order for production of documents under s 68 of Civil Procedure Act - facts in issue with respect to discretion

CRIMINAL LAW - Conspiracy - Scope of obligation on Crown to particularise identity of co-conspirators - Fairness and particulars.

CRIMINAL LAW - sentence - guilty plea to manslaughter - substantial impairment by an abnormality of mind arising from an underlying condition

CRIMINAL LAW - Scope of issues at trial - Relevance of Material to issues at trial - Exclusion of prejudical material.

APPEAL – error of law – misconstruction of power – infection of discretion - PRACTICE – default judgment – motion to set aside – dismissal without proper opportunity of adducing evidence – refusal of adjournment.

PROCEDURE – extension of time for service previously granted ex parte – application by defendants to set aside – English Procedure – principles – relevant factors – broad discretion – balance of interests – extension of time confirmed.

CRIMINAL LAW: Trial by judge alone - murder - defence of mental illness

CRIMINAL LAW – driving offence – driving whilst disqualified – mens rea – honest and reasonable mistake – mistake not result in innocent conduct – no mens rea necessary – no honest and reasonable mistake – issues go to the recording of conviction and/or sentence – appeal allowed.

CRIMINAL LAW – sentence – murder – offence in 2002 – no standard non-parole period – plea of guilty – offence slightly above mid range of seriousness – application of repealed s 44 of Crimes (Sentencing Procedure) Act 1999.

CRIMINAL LAW AND PROCEDURE - Plea of guilty - Corporations law offence - Agreement to give evidence against alleged co-offender - Mitigating factors - Express Crown submission that "range" included suspended sentence

CRIMINAL LAW – Property offences – Use of a false instrument – Meaning of “use” – Crimes Act 1900, s 300(2)

CRIMINAL LAW — Sentencing — Crown Appeal against sentence — solicit to murder — objective seriousness — combined discount for plea of guilty and assistance — double counting for discount for plea of guilty and assistance and for finding of special circumstances

CRIMINAL LAW AND PROCEDURE - Application to adjourn commencement of trial

PROCEDURE - Costs - Action to revoke probate - Matters resolved - No decision on the merits of matters in dispute - No orders as sought in statement of claim - Whether plaintiff nonetheless substantially successful - Whether irregularities justified the commencement of proceedings - Proper approach to decisions on fact - Basis for inherent jurisdiction to revoke probate.

EQUITY - Equitable Doctrines and Presumptions - Whether land held on constructive trust for plaintiff - Resolution of diametrically opposed testimony of mother and daughter - Property purchased in daughter's name with mortgage finance in daughter's name - Mother forges daughter's signature on transfer to her - Mother says she paid for property - Mother refinances property with mortgage for greater amount - Payments from mother's account - Whether source of funds from daughter and husband - Cross-claim for account or reimbursement

JUDGMENTS AND ORDERS – amending, varying or setting aside orders – consent orders – whether consent orders were irregularly obtained – no irregularity where legal practitioner had ostensible authority to bind client – whether contract embodied in compromise could be set aside – applicant in substance a surety for an onerous loan – independent legal advice – applicant understood her obligations and the nature of the loan – contract could not be set aside – whether Court should nevertheless decline to give effect to compromise in the interests of justice – no defence available to answer the plaintiff’s claim – orders not set aside - LEGAL PRACTITIONERS – authority – compromise of litigation – legal practitioners have authority to compromise litigation in the ordinary case

Family Provision. Application by widow and a daughter for whom no provision made. Orders for provision. No matter of principle.

Intellectual property - reference for determination - cost of development of patents - measures of cost - whether historic cost or arms-length cost - not appropriate to apply indexation by way of an interest component - travel expenses should be actual expenses incurred - possible unjust enrichmenst is not a relevant factor in calculating cost of development - not appropriate to caluculate what might have been the reasonable cost for developing the patents.

EQUITY – PRACTICE – Declarations – Summary dismissal – Proceedings seeking only declaration summarily dismissed for lack of utility – Whether such dismissal available – What tests appropriate – Undesirability of piecemeal determination of related issues.

[CONTRACT] - Exclusive Distributorship Agreement for Plaintiff to distribute Defendant's nuclear medical equipment in Australia and New Zealand - automatic renewal of Agreement for period of 12 months to 31 December 2008 unless parties failed to reach written agreement in respect of Plaintiff's sales goal for 2008 - whether parties reached agreement in writing in respect of Plaintiff's sales goal - whether Plaintiff entitled to place order on Defendant for certain Products - whether Plaintiff was required to have a 'binding written commitment" from customer prior to placing order on Defendant - whether Plaintiff achieved its sales goal for 2007 - [IMPLIED TERMS] - whether implied term to co-operate and/or implied term to act in good faith in discussions in relation to Plaintiff's 2008 sales goal - whether breach of Agreement - [TERMINATION] - whether Defendant entitled to give notice to Plaintiff terminating agreement on basis of the parties' failure to reach agreement in writing as to Plaintiff's sales goal for 2008 - whether Defendant entitled to terminate Agreement on basis that Plaintiff fail to achieve its sales goal for 2007 - [WORDS & PHRASES] - "discussions", "negotiate", "binding written commitment"

LESSOR and LESSEE - option to renew - Prescribed Notice under Conveyancing Act 1919 s 133E - response to exercise of option disputed exercise but contained no statement referring to dispute being subject to any order of the Court under s 133F HELD strict compliance was required and lessee's breaches of repair covenants did not defeat exercise of option - Specific Performance is discretionary and would not be ordered until repairs were carried out - proceedings adjourned for completion of repairs.

CRIMINAL LAW - appeal against sentence - knowingly take part in the cultivation of not less than the large commercial quantity of prohibited plants - parity principle - whether applicant likely to re-offend - whether prior criminal convictions taken into account - whether sentence manifestly excessive - appeal dismissed

CRIMINAL LAW – SENTENCING – appeal against sentence – offender convicted of aggravated assault with intent to rob – alleged sentencing judge erred in precluding consideration of an available sentence – sentencing judge had expressed a provisional sentence then revised the sentence upwards – appeal dismissed

APPEAL - Costs Review Panel -whether rule of thumb should apply

PROCEDURAL FAIRNESS - CTTT - non attendance at court

CORPORATIONS - scheme of arrangement - TRUSTS - judicial advice - proposal for interlinked scheme of arrangement and amendment of managed investment scheme constitution so that "stapled securities" would be acquired for cash or new stapled securities - applications for orders under Corporations Act, s 411(1) and for judicial advice under Trustee Act 1925, s 63 - Macquarie Capital interested as investor and manager in existing structure and proposed new ownership structure - concurrent scheme for Bermudan company - part of consideration from trust distribution - arrangements for meetings of shareholders and unitholders - credit or performance risk - no-shop and reimbursement fee provisions

DISMISS - Strike out cross claim

CRIMINAL LAW -Refusal to take part in identification parade - Relevance - CRIMINAL LAW - Failure to caution accused before questioning - Failure to inform suspect of right to contact police friend or relative - Extremist statement in terrorism trial - Scope and Relevance.

Corporations Law. Application to set aside demand under s 459G of the Corporations Act. Allegation of genuine dispute. Held: No genuine dispute. No matter of principle.

EVIDENCE – Privilege – Waiver – Need for inconsistency between maintenance of privilege and conduct of person entitled to the privilege. - LEGAL PRACTITIONERS – Disciplinary proceedings – Complaints against legal practitioner – Provision in Legal Practitioners Act 1987 concerning the handling of such complaints – Bar Association not compellable to produce documents – Whether protection can be waived – Whether protection was waived.

REAL PROPERTY – EASEMENTS – (NSW) Conveyancing Act 1919, s 89 – application for modification of easement – where plaintiff proposes to use its land for residential development – where plaintiff proposes modification of driveway easement enjoyed by dominant land to comply with Development Approval issued by local council – where proposed modification would nearly halve the width of the easement along half of its length – whether easement unmodified impedes the reasonable user of servient land – whether easement unmodified secures a practical benefit to the dominant land – whether modification of easement would not substantially injure the dominant owners – discretionary considerations – where modification was to facilitate commercial exploitation of servient land and plaintiff sought consent from dominant owners long after construction commenced and despite warnings from council.

CRIMINAL LAW - permanent stay of criminal proceedings - unfitness to be tried

CONTRACT – Joint Venture – Whether either party repudiated – test to be applied – acceptance – whether party otherwise entitled to accept repudiation precluded by its own conduct from doing so – DAMAGES – assessment of value of future opportunity to earn profit where proof unattainable