Cases and authorities

CORPORATIONS - winding up - company in liquidation - leave previously granted to member under Part 2F.1A of Corporations Act and court's inherent jurisdiction to bring proceedings on behalf of company - those proceedings prosecuted to conclusion - judgment against company - member wishes to pursue appeal on behalf of company - whether existing leave extends to appeal - whether new grant of leave should be made - supervening Court of Appeal decision that Part 2F.1A not available where company in liquidation - application for new grant of leave pursued on basis of inherent jurisdiction only - relevant criteria discussed - assessment of case against those criteria - criteria not met - leave refused

Building and Construction Industry Security of Payments Act 1999 - Natural justice - Whether denial of natural justice could not possibly have made a difference to the outcome - Materiality - Nullus commodum capere potest de injuria sua propria principle

MORTGAGES – mortgagee’s power of sale – injunction sought to restrain sale – injunction sought to protect the equity of redemption – where no challenge to the mortgagee’s right to exercise its power of sale nor as to the mode of sale - necessity to pay amount owing into Court in the ordinary case – injunction refused

INJUNCTIONS – Interlocutory injunctions – Employment – Former employee employed by a competitor – Whether information as to prices and volume of sales is confidential – Injunction available to restrain former employee from using documents in written or electronic form – Injunction not available to restrain former employee from using knowledge gained in the course of his employment

Conviction appeal - receipt of age pension while in employment - no issue that was received - relevant issue an intention of obtaining a benefit or dishonestly obtaining a gain - unrepresented accused - no application for stay or adjournment - whether miscarriage because unfair trial due to lack of representation - evidence of receipt of age pension while in employment - admitted with accused's concurrence - whether miscarriage because danger of prejudice outweighed probative value - accused's explanation of why he did not disclose employment put before jury - whether open to jury to be satisfied beyond reasonable doubt of requisite intention - appeal dismissed.

CRIMINAL LAW - sentencing - supply of prohibited drugs - whether aggravated by organisation and planning - whether sentence excessive

Crown appeal on sentence - dangerous driving occasioning death - early plea of guilty - application of guideline judgment of R v Whyte - whether sentencing judge correctly applied guideline judgment.

CRIMINAL LAW – appeal against conviction of maliciously damaging property by fire – circumstantial evidence - directions to jury – erroneous exclusion of reasonable hypothesis of accident – erroneous direction that a conclusion inconsistent with guilt must be equally reasonable as that consistent with guilt - retrial ordered

Crown appeal - whether sentences manifestly inadequate - effect of delay on sentence - need for sentencing judge to take into account pre-existing custody when considering totality - discount for plea of guilty.

CRIMINAL LAW – multiple armed robbery offences - SENTENCING – Crown appeal – whether sentence for one offence adequately reflective of criminality involved in commission all offences.

WORKERS COMPENSATION – Determination of claim by Arbitrator – Review of decision by Presidential member – Nature of review – Whether necessary for Presidential member to identify error – Whether Presidential member bound to apply the principle in Abalos – Whether error of law by Presidential member shown.

CORPORATIONS – co-operatives – variation of statutory cap on ownership by resolution of co-operative – whether proportion varied – Co-operatives Act 1992, s 289 - CORPORATIONS – resolutions – construction – whether resolutions ambiguous - CORPORATIONS – co-operatives – schemes of arrangement - CORPORATIONS – s 1322 Corporations Act 2001 (Cth) – whether deficiencies in resolutions procedural irregularities capable of being cured.

ADMINSTRATIVE LAW - review or appeal from Tribunal - no basis shown for relief

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute as to existence or amount of debt - turns on own facts - no matter of principle

Default judgment - application to set aside - defendant's evidence of arguable defence - whether appropriate to cross-examine - proper procedure.

EQUITY - resulting trust - presumption of advancement - where son becomes sole purchaser of house and father pays deposit and stamp duty - where contract later novated to include father as co-purchaser - where both take title as joint tenants - son claims full beneficial ownership - father claims undivided interest in equity

EQUITY – undue influence – unconscionable conduct – father conveyed entire interest in real property to son – father sought declaration that property held on constructive trust for father and son as tenants in common in equal shares and order for son to carry out all necessary steps to transfer to father legal half interest in property – trial judge found both grounds made out – appeal on questions of evidence - EVIDENCE – witnesses – credibility of witnesses – where trial judge rejected evidence given by solicitor for son – appeal against factual finding based in part on demeanour – whether finding of trial judge contrary to incontrovertible facts or uncontested testimony – whether trial judge disbelieved evidence as a result of considering other evidence or simply was not persuaded of the occurrence or existence of the fact sought to be proved – where material that should have been provided in affidavits emerged only orally at trial – trial judge entitled to treat supplementary oral evidence with caution – essential for judge to believe what a witness says before the facts to which the witness deposes are proved by that witness’ evidence - PROCEDURE – Courts and judges generally – whether reasons of trial judge inadequate – whether trial judge referred to relevant evidence – whether trial judge set out any material findings of fact and any conclusions or ultimate findings of fact reached – whether trial judge provided reasons for making the relevant findings of fact and conclusions – sufficient for judge to say he or she does not believe a witness if rejection of evidence based on credibility rather than on comparing probabilities derived from other evidence

CONTRACT – Breach – Election– consent agreement for parachute operations between aero club and parachute operator – where contract gives club right to revoke consent in event of club forming opinion that there has been a breach of any condition of consent – where club alleges numerous breaches over a period of two years – where club accepts fees under agreement with notice of alleged breaches until one month prior to purported termination – whether club elected to affirm – whether further breaches committed by parachute operator after date to which waiver effective – Termination – Construction – whether provisions of agreement not expressly stated to be essential conditions were “conditions of consent” – whether breaches were such as to entitle club to revoke consent – Terms – implied terms – to exercise contractual rights only in good faith – whether such term to be implied – whether purported termination was in breach of any obligation of good faith – Relief against forfeiture – whether relief against forfeiture would have been granted.

CONVEYANCING - vendor and purchaser - matters arising between contract and completion - whether contract validly rescinded - sale of properties subject to special condition giving either party right of rescission if strata plan not registered within 12 months from contract date - power to extend time for registration for specific reasons subject to determination by vendors' architect - whether letter from architect was a determination

CRIMINAL LAW - Sentencing - no question of principle

Sentence appeal - murder - application of standard minimum non-parole period - whether intent to kill alone is sufficient to take offence above the midrange of seriousness - error in using standard minimum non-parole period as the start point for fixing a sentence.

CRIMINAL LAW - Sentencing - murder - whether extra-curial punishment - mathematical approach to sentencing

WORKERS COMPENSATION - No error of law in finding that employment was not a substantial contributing factor to appellant's injury - s 9A Workers Compensation Act

SUCCESSION - family provision - claim by widower - substantial estate - long and happy marriage - Plaintiff is only eligible person - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claim of residuary beneficiary.

COSTS – indemnity costs – costs orders against legal practitioner – whether serious neglect, serious incompetence or serious misconduct – reasonable prospects of success – s99 Civil Procedure Act 2005 – r42.3 Uniform Civil Procedure Rules.

COSTS - whether unsuccessful plaintiff should be ordered to pay defendant's costs - FAMILY PROVISION ACT proceedings

CRIMINAL LAW — Sentencing — excessive self-defence manslaughter

INSURANCE – Contract of – reinsurance – trade credit policy – liability of insurer to indemnify – whether ‘Trade Credit’ claim outside scope of policy – whether claim an ‘Insured Debt’ – whether debt a trade related debt.

MINING LAW [3] – General matters – Minerals and rights thereto – Royal mines.

CRIMINAL LAW - knowingly concerned in the cultivation of a prohibited drug - whether verdict unreasonable - whether sentence manifestly excessive.

CRIMINAL LAW - prescribed sexual offence - cross-examination of complainant - whether unrepresented accused should be required to provide written draft of proposed questions about complainant’s sexual reputation, experience or activity - unrepresented accused - court-appointed questioner - whether questioner should remain absent during complainant’s evidence-in-chief - whether accused should be required to provide before complainant gives evidence a written draft of questions proposed to be asked in cross-examination - whether miscarriage of justice - criminal law - possession - data on computer hard drive but “deleted” - whether retrievable - whether accused knew of its existence or ability to be retrieved - whether correct test for intentional possession applied - whether verdict unreasonable

CRIMINAL LAW - application for leave to appeal against severity of sentence - dealing in money that was proceeds of crime - whether trial judge gave adequate consideration to mental health of applicant at the time of the offence

PRACTICE and PROCEDURE - Judgments and orders - amending orders- slip rule – orders amended to properly reflect judgment - COSTS – Civil Procedure Act 2005 – differential costs orders – where party is successful on either a discrete cause of action or particular issue only – judicial discretion - COSTS – orders for costs of trial where Court of Appeal remits proceedings to trial judge

WORKERS COMPENSATION — claim for workers compensation — dispute about level of permanent impairment — injured worker referred for assessment by approved medical specialist — medical assessment certificate issued — Registrar permitted challenge to certificate to proceed to an Appeal Panel on specified grounds — Appeal Panel determined appeal on grounds not raised by either party — Nature and scope of appeal by way of review — Workplace Injury Management and Workers Compensation Act 1998, s 328 - ADMINISTRATIVE LAW – statutory review — procedural fairness — whether Appeal Panel obliged to inform parties if proposed to determine appeal on new grounds

CONTRACTS – EASEMENTS – Documents signed by neighbours containing terms for extinguishment of easement – Signatures expressed as signifying “in principle approval” – Whether binding agreement intended – If so, whether order under s 89 of the Conveyancing Act 1919 (NSW) should be made – Whether necessary, for such an order, that a mortgagee of dominant tenement agree or be joined as a party to the proceedings – Whether necessary, for such an order, that the party agreeing to extinguishment of the easement receive the consideration for that agreement.

PROCEDURE - costs - general rule - costs follow the event - costs of whole action - where offer of compromise made

REAL PROPERTY – Restriction on use of land lodged pursuant to s 88B Conveyancing Act – Whether restriction rendered inapplicable by s 28 Environmental Planning and Assessment Act and provisions of Local Environmental Plan - STATUTORY INTERPRETATION – Whether construction given to provision of Local Environmental Plan below produced an irrational result - WORDS AND PHRASES – Meaning of ‘prohibits’ – Whether an instrument which permits certain land uses only with consent is in effect a prohibition – Meaning of ‘land use’ – Meaning of ‘development’ – Distinction between ‘development’ and ‘land use’. - RELIEF – Whether conduct of the respondent in relation to construction amounted to laches – Exercise of discretion to grant relief.

CONTRACTS - whether oral contract formed - turns on own facts - no question of principle

Availablility of developing torts of misfeasance in public office and collateral abuse of process as to administrative law review by AAT - conduct of solicitor and Minister - whether on facts pleaded there should be summary dismissal of proceedings or striking out of Further Amended Statement of Claim - Claim for legal professional immunity and its basis and whether it applies to these torts

PROCEDURE – judgments and orders – in general – other matters – finalising orders after reasons for judgment given – form of declaration –orders giving effect to reasons

COSTS – offers of compromise - refusal of Calderbank offer where offeree receives a less favourable result at trial – whether offer of compromise genuine - whether rejection of offer so unreasonable as to warrant an award of indemnity costs – discretion of court

CORPORATIONS - winding up - leave to proceed against company in liquidation

CRIMINAL LAW - Application for bail - Exceptional circumstances - Principles applicable.

EQUITY - Trusts - Trusts and trustees - Creation by Court of powers of trustees must be not only "expedient" but also related to management or administration of trust property - Consideration of elements of s 81 Trustee Act 1925(NSW) and section 63 of Trustee Act 1958 (Vic) in terms of sourcing jurisdiction to wind up trusts - Consideration of whether Part 54 rule 3 of Uniform Civil Procedure Rules 2005 provides a jurisdiction to wind up trusts - Consideration of section 67 of Supreme Court Act 1970 - RECEIVERS - Consideration of inherent jurisdiction of the court to appoint receivers - DEADLOCK - Suggested deadlock where Westfield parties and Lend lease parties [as trustee for APPF] each have 50% interest in subject trusts- dispute concerning ownership and management structures of Cairns Central Shopping Centre in terms of appointment of a property manager for the centre - EQUITY - Trusts and trustees - application for orders conferring power to wind up trusts - Court has no power to destroy trusts - WORDS AND PHRASES - “expedient”

PROCEDURE - Declaratory Relief - That not indebted to 2nd defendant and he holds no security over her property - Cross-claim for moneys owed, declaration that property charged and judicial sale - 2nd defendant became bankrupt - Trustee does not prosecute cross-claim and does not oppose relief claimed by plaintiff - Whether she is entitled to the declarations - Costs - Whether Bankruptcy Act 1966 (Cth), s 58(3)(b) prevents court proceeding with the matter - Whether no hearing on the merits and no order as to costs should be made

SENTENCING - aggravated sexual intercourse without consent and aggravated indecent assault - offender a senior church elder - 12-year old victim - gross breach of trust - sentences not manifestly excessive

REAL PROPERTY – Easements – particular easements and rights – rights of way - CONTRACTS – General contractual principles – discharge, breach and defences to action for breach – performance – whether respondent’s obligations under deed spent – where term requiring respondent to issue transfer at request of appellant - CONTRACTS – General contractual principles – construction and interpretation of contracts – implied term – duration of contract – whether implication in contract that term to be exercised within a reasonable time – whether reasonable time had elapsed

NEGLIGENCE – Civil Liability Act 2002 – Duty of care – Dive into water causing serious injury – Dive from wharf under care, control and management of public authority – Duty to warn of risk – Whether risk was an ‘obvious risk’ to reasonable person in position of appellant – Whether dive was a ‘dangerous recreational activity’ – Whether risk of harm significant – PLEADING – Provisions of statute relied on by respondent not specifically pleaded – No consequential procedural unfairness to appellant.