Cases and authorities

Criminal Law - Sentencing - Crown Appeal - Money Laundering - whether sentences are manifestly inadequate.

CRIMINAL LAW: Sentence - sexual offences by father against daughter - old offences - relevance of uncharged sexual conduct - special circumstances - practice of setting non-parole periods at the time offences committed - whether sentences manifestly excessive

CRIMINAL LAW: - Sentence - specially aggravated breaking and entering - maliciously inflicting grievous bodily harm with intent - attempt to intimidate witness in prosecution against applicant - applicant on bail at the time - whether sentence is manifestly excessive - assessment of objective gravity of offences - relationship of sentences to standard non-parole periods

CRIMINAL LAW – Appeal against sentence – multiple offences – break and enter and larceny – significant history of offending – whether Pearce incorrectly applied – totality

CRIMINAL LAW – Appeal against sentence – assault, malicious damage to property and use of offensive instrument – application to tender medical evidence not before sentencing court – reports available at the time of sentence hearing and reports not available – whether evidence should be received – whether counsel failed to seek evidence now available

APPEAL- Practice and procedure- When appeal lies- By leave of court- Interlocutory orders and judgments- Judgment dismissing claimant's appeal against first opponent's rejection of proof of debt submitted in liquidation of second opponent- Whether primary judge erred in holding that second opponent's misleading statements not material contributing cause of claimant's loss- Primary judge made no error in holding claimant's case not proven on the facts- Leave to appeal refused.

APPEAL AND NEW TRIAL – Adequacy of Reasons – Duty to rationally engage with the case presented by each party – Duty to give reasons for preferring one Expert Witness over another

PRACTICE AND PROCEDURE – application to set aside judgment before entry of judgment– “slip rule” – inherent jurisdiction of court to avoid injustice in working its own procedures – whether Court failed to address arguments put – Uniform Civil Procedure Rules 2005, rr 36.16, 36.17 - STATUTES – Acts of parliament – interpretation – generalia specialibus non derogant

PRACTICE AND PROCEDURE – SETTING ASIDE ORDER – IRREGULARITY – GOOD FAITH – Order for payment out of monies held in Court procured without informing Court of undisputed right of another claimant – irregularity – absence of good faith established.

[ARBITRATION] - Whether leave should be granted to appeal from arbitral awards made pursuant to Commercial Arbitration Act 1984 - Whether manifest error on the face of the awards - Whether technical misconduct by arbitrator.

SUCCESSION – WILLS – Plaintiff sought probate of informal will – whether Court satisfied that Deceased had executed informal will - TESTAMENTARY CAPACITY – Whether deceased had testamentary capacity at time of earlier will.

PROCEDURE - Setting aside orders - Orders not entered - Defendant in person failed to attend at trial - Specific performance of agreement entered into by her solicitor - Whether she established that by accident without fault on her part she had not been heard - Whether the Uniform Civil Procedure Rules 2005, r 36.16(1) applied - Whether counsel for the plaintiffs was under a duty to put her case - Whether this failure meant the orders were made irregularly or against good faith for the purpose of the Uniform Civil Procedure Rules 2005, r 36.15(1) - Whether entitled to have case re-opened - Whether any material relied upon would have altered the orders

Appeal from Consumer Trader and Tenancy Tribunal - competancy

CRIMINAL LAW - Manslaughter - Sentence

EQUITY – Equitable charges – “Windfall equity” – Money expended on real property of another – Breakdown in relations – Whether breakdown occurred “without attributable blame” – Whether unconscionable for defendants to hold property free of charge – Whether plaintiff entitled to equitable charge – amount which charge should secure.

CORPORATIONS – Winding up in insolvency – Failure to comply with statutory demand –No application to have statutory demand set aside within time-limit – Factors to be taken into account in determining whether to grant leave under s 459S of the Corporations Act 2001 (Cth) to oppose winding-up application – Leave granted to oppose winding up application – Application for summary dismissal of originating process on grounds of abuse of process – Party who is not a creditor has no standing to bring winding-up proceedings – Creditor’s standing not established where leave has been granted to oppose winding-up application on ground that debt genuinely disputed – Pursuit of winding-up application absent standing constitutes abuse of process – Order that originating process be dismissed. - PRACTICE AND PROCEDURE – Abuse of process – Institution of parallel proceedings not ipso facto an abuse of process.

CORPORATIONS – ASIC investigations – Asset preservation orders under s 1323 of the Corporations Act 2001 (Cth) – Jurisdictional basis for making orders – Held that Court has inherent jurisdiction, or jurisdiction under s 23 of the Supreme Court Act 1970 (NSW), to make an asset preservation order where power to appoint receiver under s 1323(1)(h) of the Corporations Act 2001 (Cth) is engaged. - CORPORATIONS – ASIC investigations – Orders prohibiting person from leaving Australia. - (Cth) Corporations Act 2001 s 1323 - (NSW) Supreme Court Act 1970 ss 23 and 66(4)

Banking and financial institutions - Banker and customer relationship - Mistake - Recovery of moneys paid under mistake by bank to customer - Bank error in not cancelling or suspending customer’s auto-transfer replenishment facility - Customer with knowledge of mistake - Mistake fundamental or basic to transaction - Customer dishonestly taking advantage of bank’s mistake by writing cheques totalling approximately $11 million over seven-month period - Jones v Dunkel - Principles - Moneys fraudulently procured by customer held on trust for the bank - Principles concerning fraud claims - Where moneys paid by mistake impressed with trust - Barnes v Addy - Third party recipient liability - Remedies

CONTRACTS [1] – General contractual principles – Offer and acceptance – Contract implied from conduct of parties – Delivery taken of vehicle without further response after written offer to supply it on specified terms - SALE OF GOODS [38] – Passing of property and risk – Passing of property – Other cases – Cash on delivery – Property does not pass until payment.

Practice and Procedure - strike out application - Malicious Prosecution - whether tort applies to administrative proceedings - whether proceedings terminated favourably to the plaintiff - Misfeasance in Public Office - whether pleadings gave rise to cause of action.

CORPORATIONS – Voluntary administration – Deeds of company arrangement – Application by administrator for directions under s 447D of the Corporations Act 2001 (Cth) – Powers of administrator under deed – Whether deed administrator has power to declare a dividend – Whether deed administrator has power to effect loans from companies under deeds of administration to enable a shareholder to buy out shares of second shareholder – Held that deed administrator has no power to declare dividend – Held that deed administrator has power to effect loans to shareholder. - CORPORATIONS – Winding up – Application for order under s 447A to modify operation of Part 5.3A of the Corporations Act 2001 (Cth) – Where company clearly solvent – Modification sought inconsistent with object of Part 5.3A – Modification would not operate fairly - Application refused. - (Cth) Corporations Act 2001, ss 447A, 447D

CORPORATIONS – Bankruptcy – Cross-claim against director (who is an undischarged bankrupt) for equitable contribution by directors (including a corporate director) sued for insolvent trading under ss 588G and 588M of the Corporations Act 2001 (Cth) – Insolvent trading occurred before bankruptcy – Whether cross-claim for equitable contribution is in respect of a “provable debt” or liability within the meaning of s 82(1) of the Bankruptcy Act 1966 (Cth)

CORPORATIONS – Winding up in insolvency – Application for stay or summary dismissal of winding-up application – Whether pursuit of winding-up proceedings constitutes abuse of process – Whether petitioner has standing to bring winding-up application pursuant to assignment of debt – Whether standing as creditor to bring winding-up application lost by debtor’s tender of moneys and debtor’s payment into court of amount due – Continued willingness to tender payment and payment into court does not eliminate debt – Unreasonable refusal by creditor to accept payment to be weighed in court’s exercise of discretion to make winding-up order – Held that inappropriate in application for summary dismissal to determine whether winding-up application should be dismissed on ground of proffered tender and payment into court. - PRACTICE AND PROCEDURE – Abuse of process – No abuse of process where proceedings brought for purpose of pursuing proceedings to conclusion to obtain benefit or entitlement the law provides upon successful outcome – Where predominant purpose of bringing winding-up proceedings is to cause company to cease carrying on business and to obtain a tactical advantage in another dispute from the making of a winding-up order – Held that pursuit of winding-up proceedings does not constitute abuse of process.

FAMILY PROVISION AND MAINTENANCE - insufficient estate - claim by second wife/widow - estate probably insolvent - insolvency caused by costs in proceedings and Family Law proceedings continued after death - some doubt as to value of assets - order made on understanding probably ineffective - claim by son dismissed - comments on disproportionate costs - COSTS - Family Provision Act claim - amounts of costs - clear lack of proportionality - comments on amounts - order capping costs and requiring assessment of all costs and preventing agreement

Criminal Law - Sentence - Importation of traffickable quantity of heroin - Application of Wong and Leung - whether sentence manifestly excessive.

CRIMINAL LAW – leave to appeal against sentence – accessory after the fact to offence of aggravated break, enter and steal – submission that applicant sentenced for offence for which he had not been convicted – whether features of aggravation in principal offence relevant to applicant's crime

CRIMINAL PROCEDURE - sentencing - Children (Criminal Proceedings) Act 1987 (NSW) s 25 - background report - further report ordered - Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 distinguished

Related claims in negligence - particulars

Criminal law - parole - decision of State Parole Authority to refuse parole - sub-section 155(3) threshold - necessity for evidence that refusal was based on false and misleading information.

Supplementary reasons for orders

Family Provision. Application under Family Provision Act by six of seven children of deceased who were left out of deceased's will. Estate left to one child. Difficult family circumstances. Orders made in favour of all seven children.

Criminal law - preliminary orders for appointment of psychiatrists - pursuant to Crimes (Serious Sex Offenders) Act 2006

Inquiry as to damges. Sale of land. Damages to which Plaintiff is entitled. Difference between contract price and market value at date fixed for completion. Sale negotiated with underbidder. Whether that sale price reflects market value of land. Claim for interest. Until completion date interest is a component of contract price and is not a seperate head of damages. Plaintiff entitled to interest for period during which she was deprived of balance of contract price.

PARTNERSHIP [1] – Generally – What constitutes partnership – Particular relationships and associations – Whether the relationship of co owners of property was in this case that of partners or of co owners only.

APPEAL – former adjudication of matters – contribution proceedings followed by indemnity proceedings – whether trial judge should have found insured had actual knowledge of dangers of asbestos in subsequent proceedings given prior findings on knowledge - INSURANCE – use of findings of fact from previous decision – whether trial judge used findings of fact without parties being given opportunity to consider and respond to material – if trial judge did use previous findings of fact, whether there was evidence in this case that supported that fact finding - INSURANCE – public liability insurance policy – Condition of policy that insured take all reasonable precautions to prevent bodily injury – onus of proof on insured to prove compliance with Condition – whether insured had actual knowledge of the risk of exposure to asbestos - INSURANCE – public liability insurance policy - Condition of policy that insured take all reasonable precautions to prevent bodily injury – onus on insured to prove they had not deliberately courted a risk – whether there was evidence that insured complied with standard industry practice – whether trial judge erred by having found that insured complied with standard industry practice, that constituted prima-facie evidence that a tortfeasor had not deliberately courted a risk - INSURANCE – public liability insurance policy – Condition of policy that insured exercise reasonable care that only competent employees are employed – whether trial judge failed to deal with whether insured satisfied its onus of proving it had only employed competent employees - INSURANCE – public liability insurance policy – policy excluded claims arising out of a breach of the duty owed in a professional capacity by the insured – whether insured owed a professional duty to worker suffering damage - INSURANCE – public liability insurance policy – policy responded in respect of bodily injury occurring during period of insurance – inhalation of asbestos fibres resulting in mesothelioma – time at which injury occurred – injury occurred at time of initial inhalation and penetration of asbestos - INSURANCE – public liability insurance policy – liability of insured covered by policy in respect of which it became liable to pay compensation - injury to worker during terms of different policies – liability of insured arose only once at time of initial exposure

LIMITATION OF ACTIONS – Extension of period – Power of court to extend time – Whether just and reasonable to extend limitation period – Whether significant actual and/or presumptive prejudice to the defendant – Weight to be given to prejudice that arose before the expiry of the limitation date as against prejudice arising after the expiry of the limitation date - Limitation Act 1969, ss 60F, 60G(2) and 60I(1)(a).

LEGAL PRACTITIONERS – conduct of barrister – barrister guilty of professional misconduct by failing to pay income tax for approximately 16 years – barrister had filed taxation returns and was not convicted of any criminal offences – barrister had ample funds to discharge his debts to the Australian Taxation Office and to his trustees in bankruptcy but chose instead to lead an extravagant lifestyle and to give money to family members – sanctions for professional misconduct – striking off – whether dishonesty or fraud in the context of non-payment of income tax is an essential ingredient in ordering a legal practitioner’s name to be removed from the roll. D

Negligence - manufacture of asbestos-based product - duty of care owed to consumers - whether error of law in formulation of duty of care - content of duty of care - no error - if had been error, would have been error of fact - whether error of law in determining breach - no failure properly to evaluate relevant factors - whether error of law in finding causation - causation not relevantly in issue at trial - was evidence on which causation could be found.

Criminal Assets Recovery Act - restraining order - affidavit of reasonable suspicion of engaging in serious crime related activity and stating grounds on which suspicion is based - order made if judge satisfied are reasonable grounds for suspicion - three offences identified - assertion of suspicion - matters stated in affidavit not specifically related to offences - whether vitiating imprecision - whether were reasonable grounds for suspicion.

Appeal from Consumer, Trader and Tenancy Tribunal Act s 67 - question with respect to matter of law - definition of owner-builder - s 3 Home Building Act 1989 - primary facts did not necessarily lead to conclusion that an application for an owner-builder permit must have been rejected - no requirement of eligibility for an owner-builder permit to be an owner-builder - Tribunal has jurisdiction to make orders sought - procedural fairness not denied - limits on matters to be dealt with on appeal pursuant to s 67 - consideration of powers under subs. 67(3)(a) when matters of law and fact remain undetermined by Tribunal.

Criminal Law – Appeal against sentence – Evidence – Tendency and coincidence – Principles to apply - Whether the evidence had significant probative value – Substantial and relevant similarity – Strong circumstantial evidence – Supply of a large commercial quantity of a prohibited drug – Sections 97, 98, 101, 136 Evidence Act 1995 (NSW)

Criminal Law - Sentencing - Disparity with co-offenders - concurrent sentences for offences against different victims - sentences unduly lenient for all offenders - Court refused to intervene.

Criminal Law - Sentence - Crown Appeal - Break, enter and steal offences - Concurrent sentences - whether appropriate for multiple repeat offending - standard non-parole period - failure to take into account - youthful offender - whether sentences manifestly inadequate.

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether consideration for sale of shares included a choice of two units in a prospective site development in addition to the cash consideration in the share sale agreement - Whether a deed containing the entitlement to the two units was executed on behalf of the defendant - Whether the deed was void for uncertainty - Whether the obligation only arose if the defendant chose to develop the site - Whether the entitlement to lodge a caveat only arose when the defendant was in default - Whether the defendant was in default by contracting to sell the land undeveloped

Banker and customer - Elaborate fraud committed against Bank - $7,000,000 proceeds of frauds swiftly disbursed following settlement - Provision to Bank of fabricated financial statements in support of a claim that borrowing company requiring receivables finance facility had in the order of $20,000,000 in sales per year - Fraud perpetrated by a variety of actors - Proceedings including claims in rem, claims for deceit, claims for misleading and deceptive conduct, restitutionary claims for mistaken payment, claims for negligent misstatement - Expert evidence in relation to documentary examination and access to computer deep memory - Consideration of tracing - Principles - Damages - General damages - Consideration of principles underpinning awards of exemplary damages

CONTRACT – Property. - PRACTICE & PROCEDURE – Whether decision of Residential Trader and Tenancy Tribunal gave rise to res judicata, issue estoppel and Anshun estoppel – dispute between parents/ parents-in-law with son and daughter-in-law as to whether house made available to them gave rise to any right on latters’ part to prevent taking of possession – right of owner to recover possession outside Residential Tenancies Act 1987 under s20 of Civil Procedure Act and earlier s79 of Supreme Court Act.

PRACTICE AND PROCEDURE – parties – joinder of party to proceedings – adding a party after expiration of limitation period – effect of joinder of party on operation of limitation periods – substitution of party – correcting mistake in name of party – whether multiple parties may replace single party – date as at which amendment of parties effective – type of mistake able to be corrected – existence of discretion even if relevant type of mistake found to exist – Civil Procedure Act 2005, s 65(2)(b) - LIMITATION OF ACTIONS – general – personal injury actions – Limitation Act 1969, s18A, Div 6 – “survivor action” – circumstances in which extension of time to sue in personal injury actions can be granted – interaction of Limitation Act and section 65(2)(b) Civil Procedure Act - TORTS – nuisance – public nuisance – elements of offence – who may be sued for public nuisance – where builder carried out work on private land that created public nuisance – liability of builder – liability of occupier of land – liability of owner of land - WORDS AND PHRASES – “correct a mistake in the name of a party to the proceedings”

PARTNERSHIP – Account – Rights of partners proved by signed partnership returns and business activity statements – Order for taking of account – No question of principle.

Separate determination of issues - quantum of bonuses