Cases and authorities

APPEAL – from interlocutory judgment – appeal under s 5F Criminal Appeal Act 1912 (NSW) - appeal by way of rehearing - CRIMINAL APPEAL - application to withdraw guilty plea – application before conviction - accused legally represented - misunderstanding of charge - principle of restraint

Criminal law - sexual misconduct towards child - whether evidence inadmissible under s 293 Criminal Procedure Act because relating to complainant's sexual experience - whether exception in s 293(6) available - accused conceded admissible - did not apply to cross-examine pursuant to s 293(6) - no miscarriage of justice - admissions by accused of sexual misconduct towards complainant - not specifically of misconduct charged - whether "relationship evidence" - had additional relevance as admission - no application to exclude evidence of admissions - no miscarriage of justice - no miscarriage of justice because on counsel's advice accused did not give evidence - open to jury to be satisfied of guilt beyond reasonable doubt.

CRIMINAL LAW AND PROCEDURE - CONVICTION ON ALTERNATIVE COUNT IN INDICTMENT CHARGING INDECENT ASSAULT ON FEMALE CHILD AGED ELEVEN YEARS - CHALLENGE ASSERTING JURY VERDICT UNREASONABLE - ASSESSMENT OF EVIDENCE - NO MISCARRIAGE

CRIMINAL LAW - Criminal Appeal Act s 5D - Crown appeal against sentence - Cth Criminal Code ss 474.26 and 474.17

CRIMINAL LAW - application for leave to appeal and leave to extend time to appeal - appeal against sentence - 11 offences of break enter and steal, three offences of break and enter with intent to steal - guilty plea to all offences - whether overall sentence manifestly excessive taking into account applicant's age and subjective circumstances

WILLS, PROBATE and ADMINISTRATION - contract - claim against deceased estate - need for careful scrutiny of evidence of oral agreement allegedly made with testator - on the facts, the alleged agreement was not established on the balance of probabilities.

Sentencing - murder - significant subjective features - departure from standard non-parole period - parity

EMPLOYMENT LAW - The contract of service and rights, duties and liabilities as between employer and employee - Restraint of trade - Breach of fiduciary duty of fidelity by employed solicitor canvassing clients of employer during employment - Breach of non-solicitation restraint of trade after termination of employment - Whether employer repudiated contract of employment and restraint at an end - Whether partnership dissolved and employment contract thereby repudiated - Whether restraint against public policy - Whether terms should be read down under the Restraints of Trade Act 1976, s 4(1) - Whether manifest failure to make restraint reasonable invoking the Restraints of Trade Act 1976, s 4(3) - Whether discretion should be exercised against granting injunctive relief where partnership to be dissolved and all new work on files to the account of the person performing the work

CONTRACTS– Construction and interpretation – Right of first refusal – Right to purchase market stands – Whether right of first refusal could be for predetermined price – Whether obvious mistake or absurd result – Right of first refusal could be for predetermined price – Defendant’s right in market stands an assignable right under licence agreement - CONTRACTS – Offer and acceptance – Right of first refusal – Contract specified right of first refusal to be exercised by providing cheque to the “buyer” – Plaintiff made out cheque to wrong party – Whether plaintiff exercised right of first refusal – Strict adherence to specified method is necessary to exercise the right – Plaintiff did not exercise the right - EQUITY– Equitable remedies – Mistake – Rectification – Cross-claimant failed to prove that the agreement did not set out the common intention of the parties

REAL PROPERTY [418]- Easements- Defendant required by deed to create right of way easement for benefit of plaintiffs- Transfer executed by defendant but not in registrable form- Covenant that on request defendant would execute identical transfer as replacement- Dominant tenement later subdivided- Whether plaintiffs can obtain replacement transfer from defendant in respect of subdivided land- Subdivision no barrier to plaintiffs' request- Request made 11 years later- Held plaintiffs did not make request within reasonable time. WORDS & PHRASES- "Identical".

Dispute between builder and owner - contractual changes - residential building work - ambit of appeal - lack of supporting evidence - extension of time

PROCEDURE [99] - Supreme Court procedure - Practice under Supreme Court Rules - Admissions - Withdrawal - Absence of absolute right to withdraw - Discretionary considerations.

PROCEDURE [748] - Miscellaneous procedure - Declarations - Appropriate form of relief - Discretion of court - Other cases.

CONTRACTS - construction and interpretation - price adjustment clause - plaintiff gave defendant dispute notice - specific time regime for furtherance or resolution of dispute - whether time of the essence - whether defendant's response to dispute notice delivered in time - definition of "Business Day" - distinction between delivery and receipt - whether deemed receipt of notice amounts to delivery - whether time began to run from delivery - form of relief - costs

DISCOVERY – appeal from decision of Associate Judge – order for discovery – proceedings for false arrest and imprisonment, malicious prosecution, injurious falsehood – trial fixed for hearing – factual error in reasons of Associate Judge – elements of claim for malicious prosecution – need to prove prosecutor acted without reasonable and probable cause – proof of state of mind of prosecutor – particularisation of claim – alternative proposal for limited discovery – delay in application

Interim detention order - serious sex offender

EVIDENCE – hearsay – exceptions – business records – whether representations obtained in contemplation of or in connection with proceeding

CORPORATIONS – Reinstatement of deregistered company under s 601AH(2) of Corporations Act 2001 (Cth) – Plaintiff alleges that it suffered loss by lending money in reliance upon company’s negligent valuation of property by which loan ultimately secured – Circumstances in which plaintiff may not be entitled to make claim against company’s insurer under s 601AG of the Corporations Act – Where arguable that insurer would be liable to indemnify company if claim were made against the company after reinstatement, because company arguably reported circumstances that may give rise to a claim before deregistration – Order that defendant company be reinstated. - CORPORATIONS – Winding up of reinstated company – Where not just and equitable that defendant be wound up by the Court – Order that member’s voluntary winding up be continued – Liquidators –Removal of liquidator under s 503 of the Corporations Act – In best interests of those interested in liquidation that liquidator removed and new liquidator appointed – Order that liquidator be removed and new liquidator appointed.

RESTITUTION – Mistake – Recovery of moneys paid under mistake – Where payments made to company in liquidation by mistake – Payment by mistake not in itself sufficient to impress moneys with constructive trust – Where order for restitution would be futile because company in liquidation with no assets remaining. - EQUITY – Trusts – Constructive trust – Breach of trust – Where payments made to company in liquidation by mistake – Where payer notified liquidator of mistaken payments – Where liquidator asserted company’s entitlement to moneys without making enquiries which he knew would provide definitive answer as to whether or not such an entitlement existed – No constructive trust arising before company aware that not entitled to receive moneys – Constructive trust arising when company becomes aware that not entitled to receive moneys – Where liquidator wilfully and recklessly failed to make enquiries for fear of learning that company not entitled to retain moneys – Knowledge of facts which give rise to a constructive trust – Liquidator’s state of mind that of the company, so that moneys received by company impressed with trust – Company in liquidation liable to account as trustee – Where order to account as trustee would be futile because company in liquidation with no assets remaining. - EQUITY – Trusts – Constructive trust – Breach of trust – Knowing receipt – Rule in Barnes v Addy – Where moneys paid by mistake impressed with trust – Where liquidator wilfully and recklessly failed to make enquiries for fear of learning that company not entitled to retain moneys – Knowledge of facts which give rise to a constructive trust – Where liquidator directed that payments due to him as liquidator be paid to third parties – Payments to third parties in satisfaction of debt owed to liquidator constitute payments received by liquidator – Payments to third parties constitute breach of fiduciary duties which duties arise because of circumstances giving rise to constructive trust – Held that liquidator liable to account for moneys received in breach of trust under first limb in Barnes v Addy.

Challenge to admissibility of telephone conversations lawfully intercepted between a co-accused who is not on trial and a third party

Application to amend indictment - duplicity - application for directed verdict - availability of alternative verdict of accessory after the fact to manslaughter

Sentence - Crown Appeal - Henry guideline - lenient sentence, not manifestly inadequate.

CRIMINAL LAW: - application for leave to appeal against sentence - murder - co-offenders - sentence after retrial - heavier sentence than sentence passed at first trial - different finding by second judge about applicant's role

Criminal law - sentencing - affray - conduct of co-offender - gratuitous cruelty to animals and offence being committed in company not aggravating factors - sentence not manifestly excessive.

EVIDENCE – expert witness report – rejection of evidence – independent assessment of fair and reasonable costs pursuant to Legal Profession Act 1987 (NSW) – instructions by practitioner to expert regarding assumptions to be made in determining costs – whether Administrative Decisions Tribunal erred in rejecting expert witness report - LEGAL PRACTITIONERS – Legal Profession Act 1987 (NSW) – certificate by Costs Review Panel as to fair and reasonable costs pursuant to Part 11 – determination of professional misconduct pursuant to Part 10 of the Act – s 208KF costs certificate not binding in disciplinary proceedings – costs certificate issued under Part 11 not determinative of what was fair and reasonable for purposes of professional misconduct - LEGAL PRACTITIONERS – Legal Profession Act 1987 (NSW) – professional misconduct pursuant to Part 10 of the Act – whether costs ‘grossly excessive’ is to be determined by evidence and the Administrative Decisions Tribunal may invoke its own professional experience - LEGAL PRACTITIONERS – Legal Profession Act 1987 (NSW) s 208Q – professional misconduct – deliberate charging of grossly excessive amounts of costs – requirement that practitioner personally implicated in either knowingly overcharging or was reckless as to whether or not excessive costs had been charged – whether Administrative Decisions Tribunal erred in finding practitioner guilty of professional misconduct

EMPLOYMENT LAW - The contract of service and rights, duties and liabilities as between employer and employee - Restraint of trade - Whether any breach or threatened breach of a non-solicitation provision had occurred - Whether the provision was more than adequate - Whether the term of the restraint should be read down under Restraints of Trade Act 1976, s 4(1) - Whether non-solicitation undertakings to the Court sufficient - Whether a non-competition provision to protect confidential information excessive when information too voluminous to be carried away in the head of an employee and no suggestion he took copies - Whether the restraint was incapable of being read down under the Restraints of Trade Act 1976, s 4(1)

Civil procedure - request for further particulars

WORKERS COMPENSATION - claim for relief in nature of certiorari under s.69 Supreme Court Act 1970 - medical assessment certificate issued under s.325 Workplace Injury Management and Workers Compensation Act 1998 - appeal by worker under s.328 to Appeal Panel against medical assessment certificate - claim that Appeal Panel fell into error of law on face of record or jurisdictional error - claim that decision of Appeal Panel not to refer worker for further medical assessment or to examine her itself was manifestly unreasonable - claim that Appeals Panel had failed to give reasons as required by law - claim that Appeal Panel had failed to conduct review do novo - no error established - proceedings dismissed

Interim injunction - use of telemarketers - misleading and deceptive conduct.

PROCEDURE [101]- Amendment- Proceedings under s 588FF of Corporations Act 2001 (Cth)- Proceedings to be commenced within certain time limit- Whether leave can be sought to have liquidator added as plaintiff under ss 64 and 65 of Civil Procedure Act 2005 (NSW) after expiry of time limit- Significance of Corporations Act as Federal law- Plaintiff may make application to amend under NSW Act despite expiry of time limit- However s 65 does not authorise Court to add a party.

[COSTS] - Costs ordered against unsuccessful defendant that was successful in defending other claims against it - Orders to avoid double dipping - Whether a Bullock or Sanderson order should be made in respect of costs plaintiff ordered to pay successful defendant - [INTEREST] - Whether plaintiff entitled to interest during periods of alleged substantial delay.

COSTS – order as to costs – where plaintiff unsuccessful in proceedings – where defendant initiated cross-claim against third party – where cross-claim unsuccessful due to failure of original proceedings – whether departure from default rule that costs follow the event warranted – whether indemnity costs warranted - COSTS – order as to costs – Calderbank letters – where letter was invitation to surrender cast in the form of an offer of compromise – invitation to surrender does not trigger an entitlement to indemnity costs - COSTS – order as to costs – whether successful defendant should be denied costs – conduct constituting alleged cause of action irrelevant in determining whether successful defendant should be denied costs - COSTS – order as to costs – costs of successful cross-defendant – where plaintiff unsuccessful in proceedings – whether costs of successful cross-defendant should be borne by plaintiff or by defendant – whether plaintiff rather than defendant ought to have joined cross-defendant to proceedings

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 the debt – Existence of genuine dispute uncontested – Order that statutory demand be set aside. - PROCEDURE – Costs – Departing from the general rule – Order for costs on indemnity basis – Where procedure for issuing statutory demand used improperly to force payment of a debt known by defendant to be disputed – Where defendant persisted in claim notwithstanding that it ought to have been apparent that there was a genuine dispute as to the debts claimed – Order that defendant pay costs on indemnity basis. - (Cth) Corporations Act 2001, s 459G

PROCEDURE – Costs – Security for costs – Discretionary considerations – Delay – Bona fides and strength of claim – Stultification of litigation – Cause of plaintiff’s impecuniosity – Security ordered - Quantum. - CORPORATIONS – Standing – Strike-out of parts of pleadings in which plaintiff sought declarations of contravention under s 1317E of the Corporations Act 2001 (Cth) – Lack of standing in plaintiff, under s 1317J, to make application. - (CTH) Corporations Act 2001, ss 1317E, 1317J, 1335 - (NSW) Uniform Civil Procedure Rules 2005, r 42.21(1)(d)

INSURANCE - superannuation - claim for benefit - whether condition of total and permanent disablement established - whether plaintiff entitled to relief

SENTENCE - Authorising issue of a Prosectus from which there was a material omission - s 996(1)(b)(ii) of Corporations Law - dishonesty as opposed to recklessness - general deterrence - extra curial punishment

CORPORATIONS – Winding up – Statutory demand – Demand based on assessed income tax liabilities – Whether "some other reason" to set aside statutory demand – Whether Deputy Commissioner of Taxation’s adoption of differential treatment of different parties to transaction giving rise to income tax liability amounts to “some other reason” – Whether Deputy Commissioner’s refusal to exercise discretion to waive general interest charge accrued after delay in assessment amounts to “some other reason” – No improper use made of the statutory demand – Order that application be dismissed. - (Cth) Corporations Act 2001, ss 459E, 459J(1)(b). - (Cth) Taxation Administration Act 1953, s 8AAG - (Cth) Income Tax Assessment Act 1936, s 177

Sale of defective caravan - conversion of it - breach of warranty - remedy (if any)

COSTS – claim for possession of land – third party mortgage – all moneys mortgage – loans advanced to one of two defendants secured by mortgage – defences to claim for possession – resolution of proceedings – compromises by both parties – each to pay his/her own costs – INTEREST – plaintiff’s entitlement to interest on sums paid – Supreme Court rates

APPEAL – appeal from Local Court magistrate – appeal available on question of mixed fact and law – no issue of law identified – appeal incompetent

Whether jury should have been discharged because of television programme telecast when trial commenced — jury must be accepted to have faithfully applied directions given by judge until contrary is established. - - Circumstantial case that appellant entered into conspiracy — directions required — propriety of comment by judge that circumstantial evidence not necessarily less reliable than direct evidence and in some cases can be more convincing — suitability of expression “hypothesis consistent with innocence”. - Necessity for trial judge to apply legal directions to facts of the case — no requirement that a summing-up must give equal time to case of each party. - Unreasonable verdict not established by “lurking doubt” as to whether justice has been done. - Sentencing — special circumstances — Regina v Kama (2000) 110 A Crim R 47 followed.

CRIMINAL LAW - appeal against conviction - trial by judge alone - conviction for murder - circumstantial case - wife of appellant disappeared in 1988 - human bones discovered buried in grounds of the matrimonial home in 1991 - Crown case that bones were those of appellant's wife - DNA evidence - appellant contends that verdict was unreasonable and could not be supported by the evidence - alleged sightings of appellant's wife after her disappearance - alleged deficiencies in DNA evidence - claim that Crown and trial judge fell into "prosecutor's fallacy" - claim that trial judge fell into factual error in findings concerning excavation of site where human bones discovered - claim that not open to trial judge to find that appellant's wife was dead and had died as result of act of appellant committed with intent to kill or to cause grievous bodily harm - held that Crown presented strong circumstantial case - no error demonstrated in detailed reasons of trial judge - verdict was reasonable and supported by the evidence - no miscarriage of justice has occurred - appeal dismissed

APPEAL – interference with exercise of discretion by trial judge – circumstances where appellate court will intervene – whether trial judge fell into error in exercise of discretion - LIMITATION OF ACTIONS – Limitations Act 1969 (NSW) s 60G – power of court to extend period where just and reasonable – underlying principle in extension of time is fairness of the trial – whether appellant significantly prejudiced if extension of time granted – prejudice alleged by appellant due to loss of evidence and inability to investigate cause of action - LIMITATION OF ACTIONS – costs – successful applicant for extension of time to pay unless respondent’s opposition wholly unreasonable – whether trial judge erred in reserving question of costs

Extension of limitation period - plaintiff put to proof - delay because of misadventures of solicitor - onus discharged

PROCEDURE - Pleadings - Amendment of pleadings - Leave to amend granted - Costs - No questions of principle.