Cases and authorities

Practice and procedure - Applications to strike out sections of further amended statement of claim - Principles

Appeal decision of Local Court Magistrate - detinue - consequential loss

CRIMINAL LAW AND PROCEDURE - MALICIOUSLY INFLICTING GRIEVOUS BODILY HARM WITH INTENT - SENTENCE - VICTIM REDUCED TO VEGETATIVE STATE WITHOUT PROSPECT OF RECOVERY - ASSESSMENT THAT OFFENCE IN MIDDLE RANGE OF SERIOUSNESS CATEGORY MANIFESTLY WRONG - CROWN APPEAL AGAINST SENTENCE ALLOWED - RESPONDENT RESENTENCED

CRIMINAL LAW - SENTENCING - break enter and steal - plea of guilty - pre-sentence residential rehabilitation - parity - juvenile co-offenders - Children’s Court order - breach of bail conditions

Criminal law - Sentence - Protection - Totality - Denial of guilt - Exclusion from programs - Effect of administrative decisions on sentence.

CRIMINAL LAW - Conviction and sentence appeal - conspiracy to defraud spanning 5 years - identification evidence - elderly victim living alone - whether indictment was flawed for latent duplicity - whether prosecution failed to distinguish between primary conspiracy and consequential conspiracies - whether directions on the elements of the offence were adequate - whether jury verdict unreasonable - sentencing - whether error in failing to exclude the alternate basis for conviction prior to determining culpability - whether error in taking into account overt acts of conspiracy

Appeal - reopening appeal - failure by majority to deal with all grounds of appeal.

Criminal law - Sentencing - Influencing witness - Circumstances of aggravation - Available maximum sentence.

Criminal law - Sentencing - Supplying prohibited drug (ecstasy) - Mental capacity - General deterrence - Sentence not manifestly excessive.

CRIMINAL LAW - JURIES - Verdict - Whether inconsistent findings on chargers relating to simultaneous acts are unreasonable or unsupportable - Where "something additional" to complainant's evidence available for one charge but not the other - SENTENCE - "Special Cricumstances" - Principle of totality

Delay in lodging costs assessment - abuse of process

Appeal - Local Court Magistrate's decision - admissibility of expert evidence

LAND TAX- Principal place of residence exemption - land used as part of taxpayers' place of residence and as construction site for independent dwelling - exemption not available ESTOPPEL - Commissioner not bound by assessment for earlier year.

CONTRACT [5] – General contractual principles – Offer and acceptance – Matters not giving rise to binding contract – Vagueness and uncertainty – Severability – Development application by reference to which one term of contract proceeded not annexed to contract or otherwise identified - CONTRACT [135] – Discharge, breach and defences to action for breach – Repudiation and non performance – Election and rescission – Generally – Rescission – Justification by circumstances not relied on at time of rescission - CONVEYANCING [4], [7] – Relationship of vendor and purchaser – Matters arising between contract and conveyance – Conditions of sale – Condition giving right of rescission – Other matters – Adequacy of notice of rescission – Unequivocal act terminating contract – Conditions precedent and subsequent – Consents of third persons – Local government approvals – Obligations of parties to obtain – Use of “best endeavours” or “all reasonable endeavours” – Whether necessary to undertake onerous obligations to obtain approval - INTERPRETATION [9] – General rules of construction of instruments – Where inconsistencies – Instruments partly written and partly printed – General principles.

Adoption of children - sole application by step parent - requirements as to evidence of financial circumstances - access to s 91 report

Action on guarantee - Magistrate treats it as a claim for damages - issues litigated between the parties disregarded and action found to have failed by reason of failure to mitigate damages

CONTRACTS - Equitable and legal assignments - Debtor/creditor - Contractual interest - Statutory interest

Appeal - Local Court Magistrate's decision - admissibility of expert evidence

LIMITATION OF ACTIONS – Contracts, torts and personal actions – when time begins to run – particular causes of action – cause of action founded on quasi-contract – unjust enrichment – restitution – quantum meruit – time runs from when the defendant received the benefit – Limitation Act 1969, s 14 - RESTITUTION – Recompense for services rendered – quantum meruit – legal practitioner claim for unpaid fees - RESTITUTION – general principles – whether there is a right of action for unjust enrichment simpliciter – where a contractual promise subsists – relationship of restitution to contract – restitution operates around contract and does not subvert it - STATUTE – Acts of parliament – interpretation – particular words and phrases – general – “quasi contract” – rules of construction – irrelevant that phrase may no longer be used in law – Act to be interpreted according to its plain meaning and not according to prevailing legal orthodoxy – Limitation Act 1969, s 14(1)(a)

PARTNERSHIP [35]- Dissolution- Taking of accounts- One partner makes payment of capital in excess of what other partners put in- No agreement as to interest- That partner not entitled to be paid interest on his capital- How costs of enquiry should be borne considered.

CORPORATIONS – Reinstatement of deregistered company under s 601AH(2) of Corporations Act 2001 (Cth) – Company deregistered for failure to lodge annual returns with ASIC – Directors liable to Commissioner of Taxation for unpaid liabilities of company – Directors entitled to exemption from liability if company wound up within fourteen days of notification of liability – Reinstatement necessary to wind up company – ASIC and Commissioner not opposed to application – Order that company be reinstated – Leave granted to plaintiff to apply to Court for company to be wound up in insolvency – Order that company be wound up in insolvency. - (Cth) Corporations Act 2001, ss 459P(2)(c) and (3), 601AH - (Cth) Income Tax Assessment Act 1936, s 222AOE

Relief sought pursuant to Trade Practices Act - application to strike out - plaintiff entitled to workers' compensation - statutory construction - definition of "acquire" - summary relief

PRACTICE AND PROCEDURE – Whether trial of separate questions should be ordered – overlapping and complex issues of fact and law.

CONTRACT FOR SALE OF LAND - vendor and purchaser - fire damage - purchaser purportedly rescinded under s 66L of the Conveyancing Act 1919 after fire damage - vendors treated purported rescission as repudiation and accepted repudiation so terminating contract - on the facts, found that the damage was minor and the land was not substantially damaged as defined in s 66J of the Act, hence acceptance of repudiation was effective - deposit forfeited, caveat removed.

CRIMINAL LAW - respondent of aboriginal origin - robbery in company - assault with intent to rob - victims waiting at railway station - principles governing Crown appeals - sentencing of multiple offences - whether Fernando principles relevant - whether failure to consider Henry guideline - approach in relation to offences with a standard non-parole period.

CRIMINAL LAW - appeal against sentence - break, enter and steal - significant criminal record - failure by applicant’s legal representatives to provide sentencing judge with evidence - evidence now available confirming applicant’s mental health problems - whether matter should be remitted to District Court

Criminal Law - Sentence - Federal offences - application of s 16BA of the Crimes Act (Cth) - Assistance to authorities.

CRIMINAL LAW – appeal against conviction – circumstantial evidence – evidence to be considered in its totality – not permissible to consider evidence piecemeal – whether jury’s verdict of guilty unreasonable - CRIMINAL LAW – appeal against conviction – Mental Health (Criminal Procedure) Act 1990 (NSW) – unfitness to be tried – question whether appellant fit to be tried first raised in evidence on sentence – question of unfitness to be tried raised as issue on appeal – capacity of appellant to understand proceedings at trial so as to be able to make a proper defence – whether appellant able to make a proper defence to the charge at trial

Criminal Law - Sentencing - Armed robbery with offensive weapon - serious offence but offender very limited in skills and with poor judgment - long standing deficiencies - sentence manifestly excessive - parity - co-offenders sentenced in Children's Court to inadequate sentences - lack of due proportion and relativity in sentences

CORPORATIONS – Challenge to statutory demand on basis of an offsetting claim pursuant to s459H of the Corporations Act 2001 – claim rejected essentially on basis found by trial judge – observations affirming that the intended summary process afforded by statutory demands will not be achieved if appeals are brought having insufficient prospects of success.

LEGAL PRACTITIONERS – professional misconduct – whether barrister a fit and proper person to remain on the roll – evidence of change in character subsequent to the misconduct – whether fitness to remain on the roll is to be assessed at the time of the misconduct or at the time of hearing – s 127 Legal Profession Act 1987 (NSW)

COSTS – costs of appeal from interlocutory application – whether costs of appeal should be plaintiff’s ‘costs in the cause’ - COSTS – costs of successful appellant – effect on costs of appellant withdrawing proposed paragraph from Notice of Appeal and proposing alternate orders – whether appellant should only have 90 per cent of their costs - COSTS – Rule 42.7 Uniform Civil Procedure Rules 2005 (NSW) – costs of hearing at first instance – interlocutory injunction – whether on application for interlocutory injunction costs should be ‘costs in the cause’ - COSTS – Suitors’ Fund Act 1951 (NSW) – application for a Suitors’ Fund Certificate – rationale of legislation that mistake of court system not be visited on one party – whether conduct of respondent such that it should not be entitled to a Certificate - COSTS - Suitors’ Fund Act 1951 (NSW) – whether appellant’s costs should be limited to maximum amount payable under a Suitors’ Fund Certificate - COSTS – whether costs of appeal should not become payable until conclusion of proceedings

COSTS – Notice of Motion of respondent seeking to vary Orders of Court of Appeal by including additional subparagraph – Order sought to include costs on application for special leave to appeal to the High Court of Australia – matter not raised during course of the appeal – whether Court should vary Orders

Appeal Panel - nature and scope of review - grounds of appeal and submissions - medical examination and requirement for comment

EMPLOYMENT - claim by employer against former office manager for numerous misappropriations and false claims - no question of principle.

Judicial review - Appeal Panel - jurisdiction - alleged wrong issue addressed by it - discretionary remedy

CORPORATIONS – Winding up – Statutory demand – Application for order setting aside under s 459G of the Corporations Act 2001 (Cth) – Where there is a genuine dispute about the existence of debt – Offsetting claim – Demand issued for arrears of rent due to defendant where plaintiff has seriously arguable claim against defendant for breach of lease covenants, damages for which would exceed admitted total – Order that statutory demand be set aside. - PROCEDURE – Costs – Departing from the general rule – Order for costs on indemnity basis – Where defendant unreasonably persisted in claim – Where it ought to have been apparent that there was a genuine dispute as to the debts claimed – Order that defendant pay costs of hearing on indemnity basis.

DAMAGES: - personal injury claim - incident involving runaway horse and plaintiffs in a car - some physical injury but claims primarily for psychological injury

Construction contract - security given by contractor for performance and satisfaction of obligations - provision for partial release after practical completion if principal of opinion that it was just and equitable - in course of works adjudicated amounts (Building and Construction Industry Security of Payment Act 1999) paid - principal contended that adjudicator's determinations incorrect - claimed to recover the adjudicated amounts - decision that partial release not just and equitable because of outstanding dispute over adjudicated amounts - whether retention for a purpose not within contractual purposes of holding security - contractual mechanisms could result in contractor having to pay to principal amounts of the adjudicated amounts - was within purpose of securing satisfaction of contractor's obligations - no inconsistency with Building and Construction Industry Security of Payment Act.

STATUTORY INTERPRETATION – Motor Accidents Compensation Act 1999 (NSW), ss 73, 94, 96 and 108 – whether, by s 73(3), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the trial judge was entitled to dismiss the proceedings under s 73(4) – whether, in the alternative, by reason of the application of s 96(4), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the appellant’s statement of claim was filed in breach of s 108(1) – whether a certificate relating to the assessment of a dispute issued under s 96 was a certificate in respect of a claim under s 94

Sex offender - continuing detention order - standard of proof of high probability - likely to commit further serious sex offence - treatment programs - adequacy of extended supervision order

NEGLIGENCE - speed boat accident - infant plaintiff swimming in river - damages - serious injury to right foot and ankle - pre-existing brain tumour - loss of future earning capacity.

CORPORATIONS – Winding-up – Application for stay or termination – Whether court should order stay or termination – Where on prior application company’s liabilities exceeded its assets – Fresh application where there is a material change in circumstances – Where condition for termination of the winding-up offered by applicants is that applicants release debts in consideration for issue of shares in company – Current assets will be sufficient to satisfy current liabilities once loans capitalised – Undertakings to court that debts will be released upon issue of shares – Leave given to applicants under s 471A(1A) to perform or exercise powers as officers of company to effect capitalisation of debts so that order terminating winding-up could be made. - (Cth) Corporations Act 2001, ss 471A(1A), 482

SUCCESSION – wills, probate and administration – validity of a will – knowledge and approval of the will – whether the testatrix approved of the contents of her will – undue influence and fraud – whether such concepts must be pleaded separately – whether the testatrix was coerced into, and did not intend and desire, the impugned disposition – whether the principal beneficiary made a wilfully false statement to gain for herself a benefit under the will – whether there existed a ‘grand plan’ on the part of the principal beneficiary to acquire the primary asset in the will - COSTS – whether the circumstances of this case justified the departure from the ordinary rule regarding costs in probate proceedings, namely, that costs should follow the event – Calderbank offers – whether there existed an element of genuine compromise in certain Calderbank offers made to the charities – whether the charities acted reasonably in continuing the case after the Calderbank offer had been made – whether, generally speaking, there exists a role for offers of compromise in probate actions

DEFAMATION - Publication – Generally – Republication – Where defamatory matter signed by recipients who then republish jointly with original author

ENERGY AND RESOURCES — Statutory regulation — Compensation — Subsidence – Whether compensation can be claimed for works done to prevent or mitigate damage from anticipated subsidence - STATUTES – Acts of Parliament – Interpretation – Mine Subsidence Compensation Act 1961 ss 12, 12A, 12B, 13A

BUILDING AND CONSTRUCTION CONTRACTS - where numerous payment claims relating to four different construction contracts served at once - whether open to plaintiff to make adjudication application in respect of some only of those payment claims relating to one only of those contracts - where payment claims assert matters of "defence" and matters of cross claim - where adjudication response asserts defence by way of set-off based on mutuality of dealings in respect of matters alleged by way of "cross claim" - where adjudicator concluded that the defence of set-off is not available by reason of s 20(2B) of the Building and Construction Industry Security of Payment Act 1999 - whether denial of natural justice - whether failure to exercise powers in good faith

Licence agreement - Entitlement to termination of licence agreement as a result of breach - Promise as to accuracy of information provided prior to entry into the agreement - Accuracy to the best of one’s knowledge - Extent to which knowledge distinguishable from belief - Aged Care Act 1997 (Cth) - User Rights Principles 1997 (Cth) -

BUILDING AND ENGINEERING CONTRACTS – Claims under Building and Construction Industry Security of Payment Act 1999 (NSW) – Payment claim – Adjudication – Requirements for service of notice – Principles of service – Validity of service of documents addressed to the building of a party’s ordinary place of business as opposed to the precise address of the office within that building