Cases and authorities

Defamation - Publication - Internet - Acceptance of responsibility - Pleadings - Whether Plaintiff should be able to present its case to the jury on a new basis.

SUCCESSION - Family Provision. Claim by adult granddaughter. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Proceedings instituted almost14 years out of time. Application for extension of time. Whether estate has been fully distributed. Factors warranting the making of the application. Competing claims of other beneficiaries.

Equity - Rights of subrogation - Insurance Contracts Act - Insurance requirements of Home Building Act 1989 - Insurer having provided insurance under the Home Building Act 1989 - Questions as to what were the limits, if any, to the rights of subrogation of such insurer - Whether insurer was subrogated only to the rights of the builder (who had effected the insurance and paid premiums) whose liabilities had been discharged, so that the insurer could only sue in the name of the builder - Whether the insurer was not subrogated to the rights of the beneficiaries with whom it enjoyed no previous contractual relationship - Consideration of background to statutory scheme set up by the Home Building Act

COSTS – offer of compromise – offer made under Uniform Civil Procedure Rules 2005 – offer not accepted – offeror received judgment no less favourable than terms of offer – offeror entitled to indemnity costs unless exceptional circumstances – offeree submitted judgment amount only slightly greater than offer – offeree submitted it had a reasonable expectation of success on appeal – offeree submitted appeal on defence of comment embodied right to freedom of speech – decision to refuse offer was unreasonable – no exceptional circumstances

PROCEDURE [585]- Costs- Departing from the general rule- Conduct of parties- Other cases- First defendant vehemently contested proceedings and sought to conceal assets overseas- Second defendant played no role in defending the case- Appropriate that 75% of plaintiff's costs be paid by first defendant and 25% by second defendant.

CRIMINAL LAW – summary proceedings – Commonwealth offence – availability of diversionary orders under state legislation - STATUTORY CONSTRUCTION – alleged inconsistency – s 20BQ of Crimes Act 1914 (Cth) and s 32 of Mental Health (Criminal Procedure) Act 1990 (NSW) – operation of s 68 of Judiciary Act 1903 (Cth) – no inconsistency.

ADMINISTRATIVE LAW – Motor Accidents Assessment Service – assessment of degree of permanent impairment by medical assessor – assessor's determination made subject to qualification concerning relevant expertise – application by claimant for review of determination – no decision to review - referral instead by proper officer to another assessor – further determination made by relevantly qualified medical assessor – increase in degree of whole person impairment following further assessment - application by plaintiff for further determination to be set aside - whether original determination conclusive and/or made within jurisdiction – whether referral by proper officer to another assessor in the circumstances an appropriate exercise of statutory power

COSTS – indemnity costs – defence – unreasonable delay and expense – no real prospects of success – against legal representatives – interest on costs - LEGAL PRACTITIONERS – costs against – defence doomed to fail – legal practitioners not mere mouthpiece – indemnity costs ordered.

SPECIFIC PERFORMANCE - oral agreement partly evidenced in writing for transfer of Stand 10 Growers Retail at Flemington Markets for $25,000 - order for Specific Performance - many issues about other dealings between parties.

CONTRACT [145]- Contractual set-off- Differs from procedural set-off- Operates as a defence- Whether rival claims must both be liquidated a matter of contract-However both must be due and payable- A claim that is barred from prosecution held not to be capable of set-off.

Sentence appeals - Judge incorrectly believing that standard non-parole period applied to offence - error conceded - operation of proviso - evaluation by Judge of psychological reports where basis of opinions not disclosed - importance of identifying role of participants in conspiracy - failure to give effect to a finding of special circumstances - parity.

EVIDENCE - admissions by accused - giving false alibi - not recorded - whether made inadmissible by s 281 Criminal Procedure Act - whether inadmissible in absence of objection at trial - whether evidence available at trial admissible on appeal to establish inadmissability - whether accused a suspect when admissions made - relevance of some evidence. CRIMINAL LAW - conduct of Crown Prosecutor - whether departure from standards of fairness in cross-examination and address to the jury - whether error in putting in cross-examination that accused said Crown witnesses were wrong. SENTENCING - life sentence mandatory if culpability so extreme that community interest can only be met by a life sentence - regard to youth and possibility of rehabilitation - regard to role of Parole Board - whether sentences out of line with the pattern of sentences.

Crown Appeal - assault with intent to rob whilst armed with a dangerous weapon - suspended sentence manifestly inadequate - - effective disregard of Henry guideline - plea not at an early opportunity - no true parity with juvenile co-offender - significance of medical condition to sentencing discretion.

APPEAL - extension of time for filing cross-appeal - on grounds that judge failed to consider whether certain Causation Allegations had been established - whether extension of time necessary - did time run until leave to proceed against cross-appellant, a company in liquidation, was granted - not necessary to decide - leave to proceed was granted nunc pro tunc from an earlier date - Causation Allegations were considered and rejected - no arguable case shown - extension of time refused.

CONTRACT - LEGAL PRACTITIONERS - INSURANCE - Joint venture agreement between solicitor and investors - Breach of that agreement by solicitor - Damages payable by solicitor to investor - Whether liability for such damages was incurred in connection with the solicitor's practice for the purposes of his professional indemnity policy - Whether the joint venture agreement was a contract to provide legal services.

EVIDENCE – Admissibility and relevancy – opinion evidence – expert opinion – in general – whether failure to consider expert evidence – whether failure to give reasons rejecting evidence – joint report of experts – evidence given by experts on contractual construction – where opinion outside experts’ field of expertise – where problems with the evidence addressed when trial judge admitted the evidence - TORTS – Negligence – liability for others’ negligence – independent contractors – delegable duty – council and independent contractor – duty to remove dangerous branches from trees – whether duty was ‘wholly’ delegated - TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – scope and existence of duty – duty to remove dangerous branches from trees – duty arose from contract – whether duty confined to dangerous branches that are visible from ground level – dangerous branches meant those that were detectable upon reasonable inspection – duty not limited to inspection from ground

Family Provision. Application by widow and stepson. Orders made for furfther provision. No matter of principle.

EVIDENCE - hearsay - where deponent adopts whole content of another witness's affidavit - whether adopting statement admissible

CONTRACTS [120] - General contractual principles - Construction and interpretation of contracts - Other matters - Admissibility of extrinsic evidence - Parol evidence rule - Ambiguity exception - Ambit of proscriptions of derogatory statements concerning parties to deed - TRADE AND COMMERCE [82] – Trade practices and related matters – Consumer protection – Misleading, deceptive or unconscionable conduct – Character and attributes of conduct – Reliance – Onus – Where reliance not established – Weight to be placed on assertions of reliance.

EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by purchaser.

APPEAL - Local Court Magistrate - guarantee

PROCEDURE - freezing order - under rules of court where "good arguable case" against defendant and danger of dissipation of assets shown - whether case for such order made out - form of such order - appropriateness of exceptions for fixed sums for legal expenses and "per week" fixed sums for living expenses - PROCEDURE - ex parte application - applicant's duty of candour - whether duty breached - PROCEDURE - undertaking to court - whether undertaking breached

Application for summary judgment

Family Provision. Claim by a son. No matter of principle. Order for a legacy.

DAMAGES - assessment of damages - Inquiry referred by Gzell J [2003] NSWSC 122 - finance broking house - three brokers left employment and set up rival business - breaches of contractual promises not to use confidential information about clients - consideration of loss imposed on plaintiff by defendants' dealings with clients being facilitated by availability of information contributing to clients taking business to them causing plaintiff loss of chance of obtaining their continuing business - loss of chance not open to mathematical calculation - assessed at $10,000.

CRIMINAL LAW – Appeal and new trial – appeal against conviction – particular grounds – objection and points not raised in court below – misdirections and non directions – during trial – in judge’s summing up – Criminal Appeal Rules, r 4 - CRIMINAL LAW – Appeal and new trial – appeal against conviction – particular grounds – objection and points not raised in court below – misdirections and non directions – whether amounting to an absence of a fair trial – Criminal Appeal Rules, r 4 - CRIMINAL LAW – Appeal and new trial – appeal against sentence – appeal by Attorney-General or other Crown law officer – grounds for interference – whether sentence manifestly inadequate – sexual assault – where suspended sentence given – alleged undervaluing of degree of criminality – whether too much weight given to medical condition of offender – Crimes (Sentencing Procedure) Act 1999, s 12

CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Pleas at bar not available – Principle of Incontrovertibility – “manifestly inconsistent” test – Extension of principle of incontrovertibility to convictions – Whether prosecution inconsistent with previous acquittal and conviction - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – s 394A of the Crimes Act 1900 – Guilty plea to manslaughter results in acquittal for murder – Whether an acquittal also indicates the accused was in jeopardy - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Point of commencement of trial – Whether arraignment or empanelment of jury point of commencement of trial - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Absence of acquittal on the merits – Whether evidence was capable of supporting conviction or disproving provocation case - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Whether findings by sentencing judge subject to incontrovertibility principle - CRIMINAL LAW – Jurisdiction, Practice and Procedure – Stay of Proceedings – Abuse of Process – Whether subsequent prosecution was an abuse of process given prior acquittal and conviction – Where the accused found to be in jeopardy but no abuse of process found

COSTS - discretion.

POLICE - Conditions of service - Application for gratuity under s.12D of the Police Regulation (Superannuation) Act 1906 - Decision by Commissioner whether "the injury to which the claim relates was caused by the member being hurt on duty" - Whether "the injury to which the claim relates" is the injury satisfying s.4 of the Workers Compensation Act 1987 or some further injury

STATUTORY INTERPRETATION – Crimes (Serious Sex Offenders) Act 2006 (NSW) – continuing detention orders under s 17(3) – construction of the term “likely” – whether, in the light of the standard of proof in s 17(3) and the common law presumption against the infringement of personal liberty, the term “likely” is used in s 17(3) as meaning “more probable than not” - COURTS AND JUDICIAL SYSTEM – principle of comity – whether an intermediate appellate court of one Australian jurisdiction should, on grounds of comity, follow a decision of an intermediate appellate court of another Australian jurisdiction where the issue under consideration involves the interpretation of legislative provisions that are identical or substantially similar. D

NEGLIGENCE - medical negligence - loss of consciousness events - whether general practitioner in breach of duty in failing to refer patient for an ECG - whether if had referred the ECG would have revealed condition from which patient later suffered cardiac arrest - operation of s 50 of Civil Liability Act - appellate review of findings of fact including as to expert evidence - no error in judge's findings.

NEGLIGENCE – Medical Practitioner – Whether breach of duty and causation - APPEAL AND NEW TRIAL – Interference with judge’s finding of fact – Findings based on expert evidence – Whether findings made by judge were open on the evidence at trial

CORPORATIONS – winding-up – application to dismiss winding-up application – Corporations Act 2001 (Cth), s 459C(2)(a) – defendant asserted that winding up proceedings were commenced before date on which defendant taken to have failed to comply with statutory demand – reliance on presumption of insolvency not precluded if winding-up application filed before expiration of 21 day period for compliance with statutory demand – held in any event that demand served more than 21 days before winding-up application filed - application dismissed.

CORPORATIONS - rectification of register of members - standing of applicant - discretionary factors where deed of company arrangement is conditional on rectification order

PROBATE - informal will - WPA Act s 18A - alleged codicil written out in testator's hospital room by the person principally benefited and signed by testator in her presence - no attesting witness, no other person present - testator aged 88, extremely ill and died next day - extensive evidence of circumstances and medical condition - probate of codicil refused because not satisfied (1) testator knew and approved of contents of document (2) testamentary capacity.

Apportionment - just and equitable - dangerous driving - absence of complaint - seatbelt not worn - age of plaintiff

CORPORATIONS – Oppression – Numerous instances of oppression by director of companies – Remedies – Winding up – Whether discretion to order winding up should be exercised – Order to wind up a solvent company only as a last resort – Appropriate remedy a compulsory purchase order – Valuation of shares. - EQUITY – Fiduciary duties – Causation – Breach of obligation to act for proper purpose distinguished from failure to disclose improper purpose – Consideration of application of principle in London Loan and Savings Co of Canada v Brickenden [1934] 3 DLR 465 – Director precluded from alleging would have derived profits irrespective of improper purpose – Liable to account for profits derived – No liability to pay equitable compensation where loss would have occurred irrespective of breach of duty. - EQUITY – Breach of fiduciary duty – Remedies – Account of profits – Director and third party company under his control each received benefit from director’s breach of duty – Third party company with full knowledge that profits derived by reason of fiduciary’s breach – Purpose of account of profits considered – Each liable to account for profits derived by them from fiduciary’s breach – Entitlement to claim just allowances for skill, expertise and labour. - EQUITY – Fiduciary duties – Conflict of interest – Director owing concurrent fiduciary duties as solicitor – Duties as director owed in addition to duties owed as solicitor – Onus on fiduciary to show that fully informed consent obtained – What constitutes fully informed consent – Circumstances requiring independent advice. - LIMITATION PERIODS – Application of Limitation Act 1969 (NSW) by analogy – General rule that statutory limitation period applied by analogy only if court satisfied it is just to do so – Where account ordered for breach of fiduciary duty not constituting a breach of trust, analogy prima facie drawn between action to account at law and action to account in equity – Limitation period applicable to account at law applied where reliance on statute of limitations by analogy not unconscionable. - EQUITY – General principles – Equitable defences – Laches and delay – Equitable doctrine of laches applies where Limitation Act does not apply either directly or by analogy. - EQUITY – Fiduciary duties – Directors’ duties to shareholders – Consideration of circumstances in which directors may owe fiduciary duties to shareholders. - MEETINGS – Voting – Circumstances in which directors interested in transaction may vote on resolution to enter into transaction – Articles providing that interested director may vote where disclosure in certain manner made – s 231, Corporations Law - s 123, Companies Act 1961 (NSW) – Whether Article applicable where only two directors, both personally interested in transaction – Continuing underlying requirement that directors act in accordance with fiduciary duties when voting notwithstanding that declaration of interest made in accordance with articles.

Undue Influence – voluntary transfer by old, deaf, almost blind, childless bachelor to his nephew of virtually his only asset, the house in which he had lived for almost his entire life – no independent advice – nephew held uncle’s power of attorney and had given him care and assistance for many years – presumption of undue influence – presumption not rebutted

Application to extend time - costs - test - relevance of applicant's fault for being out of time - reasonableness of opposition - must be more than arguable grounds for opposition.

COSTS – ASSESSMENT – APPEAL – Whether costs agreement precluded recovery of fees charged above estimate stated.

Leave to appeal - appeal decision of Costs Assessor

CO-OPERATIVES – maximum permissible level of interest in shares under s 289(1) of the Cooperatives Act 1992 (NSW) (“the Act”) – whether maximum of 20% of nominal value of issued share capital was increased by special resolution in respect of defendant by means of special postal ballot as permitted by s 289(3) of the Act – whether excess interest to be forfeited under s 290(1) of the Act – resolutions passed as part of scheme of arrangement under s 344(1) of the Act – whether such resolutions increased the maximum – matter of construction - CORPORATIONS – whether relief against civil liability arising out of contravention of the Act should be granted under s 1322 of the Corporations Act 2001 (Cth)

CRIMINAL APPEAL – rejection of expert evidence tendered by accused – relevance of expert evidence – miscarriage of justice – operation of proviso – Criminal Appeal Act 1912 (NSW) s 6(1) - EVIDENCE – expert evidence – relevance – basis of rejection – Evidence Act 1995 (NSW), ss 55, 79 and 80.

Criminal law - sentencing - procedural fairness - duress - evidence of a co-offender taken in the absence of the applicant and legal representatives - procedural fairness denied.

CRIMINAL APPEAL – conviction appeal – leave required where grounds not limited to questions of law CRIMINAL APPEAL – whether failure to call witness constituted a miscarriage of justice – failure by prosecution to produce weapon – whether issue in prosecution case unsupported by evidence SENTENCE – whether offence fell within mid-range of objective seriousness

INSOLVENCY – Related companies – whether companies insolvent – whether solvency of company A independent of solvency of company B – whether disputed tax debt “due and payable” – whether companies insolvent because of trade debts. - INSOLVENT TRADING – Directors’ liability – whether reasonable grounds to suspect insolvency – whether director aware of reasonable ground for suspecting insolvency. - INSOLVENT TRADING – DEFENCES – whether reasonable grounds to expect solvency – discretionary defences under s.1317S(2) and s.1318(1) Corporations Act 2001 (Cth) – whether s.1318 applies for contraventions of Corporations Act – whether director acted “honestly” – whether lack of Directors and Officers Insurance relevant to discretion – liquidator enters litigation funding agreement – liquidator knows almost all of proceeds will go to liquidator and litigation funder with negligible return to creditors – whether return to creditors relevant to discretionary defences – control by Courts of abuse of litigation funding – costs under s.98 Civil Procedure Act – liquidators’ duty to seek direction of Court. - INSOLVENT TRADING – UNFAIR PREFERENCES – Where payments by ATO were unfair preferences – whether ATO entitled to indemnity from directors – whether directors entitled to indemnity and set off. - EQUITY – Cross claims between directors – whether directors entitled to equitable contribution to their common liability for insolvent trading. - FRAUD – Director transferred share in company to his wife – whether alienation of property with intent to defraud creditors – ambit of s.37A Conveyancing Act 1919 (NSW) – meaning of “alienation” – whether acts of person other than debtor can be avoided.

Appeal, review of CTTT - procedural fairness