Cases and authorities

ESTOPPEL [33] – Estoppel in pais – Equitable estoppel – Promissory estoppel – Requirements – Clear and unequivocal representation.

Equity - Specific performance of agreement to compromise an application under Family Provision Act 1902. Whether binding agreement. Court's discretion to refuse to order specific performance. - Family Law - Application for approval of compromise of infant's claim under Family Provision Act 1982. Factors to be considered by the Court.

COSTS - of application for further security for costs and other relief - no question of principle

CRIMINAL LAW - application for stay of commencement of trial conditional upon Crown paying costs of aborted trial - whether accused must establish fault or responsibility on part of prosecuting authorities - requirement that accused demonstrate identifiable injustice for which it can sensibly be said that prosecuting authorities should be held responsible - not demonstrated in this case - conditional stay refused - application for temporary stay based upon media publicity - application for adjournment for accused to arrange for funding of private legal representation

Maliciously inflict grievous bodily harm with intent - victim rendered blind as a result of brutal attack - prior good character taken into account but grave criminality warranted stern sentences imposed.

Criminal Law - Sentencing - maximum penalty for offence wrongly stated - element of offence taken into account as aggravting factor - sentence manifestly excessive

Criminal Law - Criminal Appeal Act s 5F(3A) - error of principle by trial judge - whether Crown case "substantially weakened"

CRIMINAL LAW: sentence - offence on indictment and two offences on Form 1 - period of pre-sentence custody attributable to Form 1 offences - whether sentence should be backdated accordingly

CRIMINAL LAW - Appeal against sentence - supply of heroin on 5 separate occasions - offences under s 25A and 25 of the Drug Misuse and Trafficking Act - commercial business - partly concurrent sentences imposed

CORPORATIONS – Directors – Meetings – Resolutions – Articles of Association provide quorum for directors meeting as two – Appointment of directors – Whether resolution appointing directors validly made – Where conversation between directors indicates that directors intended that appointment would be made in the future - No concurrence by two directors that appointment of new director made – Held that no valid appointment of new directors. - CORPORATIONS – Shares – Issue and allotment of shares – Powers of directors – Issue and allotment of shares invalid because no valid appointment of directors purporting to resolve to issue shares – Where even if appointment of directors had been made, issue of shares for purpose of securing majority voting power not a bona fide exercise of power – Ulterior purpose – Held that issue and allotment of shares invalid. - CORPORATIONS – Directors – Allegation that director unable to act as director due to mental incapacity – Onus of establishing incapacity not discharged. - CORPORATIONS – Application under s 241 of the Corporations Act 2001 (Cth) to appoint receiver or accountant to investigate financial affairs of company – Standing to make application. - (Cth) Corporations Act 2001, ss 237, 241, - (NSW) Guardianship Act 1987, ss 14 and 25G

PROCEDURE - costs - various costs questions determined

TORTS – Negligence – essentials of action for negligence – duty of care – occupier’s liability – passenger at bus interchange collides with object protruding from wall - TORTS – Negligence – essentials of action for negligence – breach of duty of care – risk of collision – careless or inadvertent plaintiff – means and options of alleviating risk – placing obstacle around hazard – making object more visible – whether reasonable to do so - TORTS – negligence – contributory negligence – failure to keep a proper lookout – passenger at bus interchange collides with object protruding from wall - JUDGMENTS AND ORDERS – Judges’ failure to agree – whether “equally divided in opinion” – obtaining order of the court – convention – withdrawal of judgment – highest common denominator – judgment by seniority – Supreme Court Act 1970, s 45(2)

CORPORATIONS – Winding up – Statutory demand – Application for order setting aside – Whether genuine dispute as to quantum of debt shown – Debt arising under cancelled contract of insurance – Where clause in policy provides that insurer to retain “customary short rate proportion of the premium” and policy cancelled by insured – Question of what proportion of annual premium to be paid for the period during which policy in force – Question of whether there is a genuine dispute can be decided as a matter of law where question arises on the construction of the contract and does not depend upon conflicting evidence requiring findings of fact – Held that no genuine dispute as a matter of law – Order that originating process be dismissed. - CONTRACTS – General contractual principles – Construction and interpretation of contracts.

Review decision of Registrar and Medical Appeal Panel - Workers Compensation Commission

Engagement ring given in contemplation of marriage - when it should be returned and when it may be retained - whether subsequent statements of donor made a conditional gift absolute - donee rejects gift - when donee became a bailee - duties of bailee - not entitled to throw ring in garbage bin and tell bailor to collect it from there

SENTENCING - accessory after fact to assault occasioning actual bodily harm - plea of guilty - youthful offender

Sentencing - malicious wounding - whether aggravating factor of vulnerability of victim - vunlerability because of disability through illness - whether sentence manifestly excessive - sentencing judge placed offence at top of range of seriousness and within "worst case" class - imposed maximum period of imprisonment - injuries far removed from worst case injuries - erroneous to place offence within worst case class - resentenced to lesser period of imprisonment.

Extension of time - motor accident claim - prejudice

CORPORATIONS – Administrators – Application by administrators for order as to operation of Part 5.3A of the Corporations Act 2001 (Cth) – Administrator incurring debt by borrowing not entitled to indemnity under s 443A of the Corporations Act – Order that Part 5.3A amended so that administrators personally liable for loan taken out by first plaintiff and entitled to indemnity under s 443D – Application for directions that administrators may properly and justifiably enter into agreements providing cross-collateral security from companies within group – Where provision of loan facility is a desirable step for administration of group of companies and is in the interests of creditors – Order that administrators are justified in entering into deeds of agreement and guarantee. - (CTH) Corporations Act 2001, ss 443A, 443D, 447A(1)

LEGAL PRACTITIONERS - application to restrain legal practitioner from acting - relevant legal principles - where solicitor intends to act for several clients at liquidator's examinations - undertaking by solicitor not to act at examinations - where solicitor also intends to act on applications for setting aside of orders for production of documents - no specific or concrete allegation of breach of legal duty - perception of needs of due and proper administration of justice

CONTRACT - various claims determined - TRADE AND COMMERCE - accessorial liability - PROCEDURE - costs - whether costs should be assessed on the indemnity basis

Claim for damages against College founded on breach of duty (in respect of conduct of examinations and review thereof) - claim for loss of income - plaintiff neither a registered practitioner nor fellow of the College - no reasonable cause of action disclosed - claim not viable

CONTRACTS – Breach – Material and non-material breaches by plaintiff – Notice of breach served on plaintiff – Plaintiff given period to remedy breaches – Incurable breaches – Material breaches not remedied – Notice of termination served on plaintiff – Whether notice of termination in good faith – Defendant acted reasonably in terminating contract despite his interest in termination

Criminal Law - Sentence - Appeal based on events subsequent to sentence. - Review of sentence a matter for executive government not court.

CRIMINAL LAW - Application to reopen appeal - allegation of irregularity in appellant’s trial after appeal judgment delivered - appeal against conviction dismissed - appeal against sentence allowed - jurisdiction of Court of Criminal Appeal to reopen appeal and consider a further ground of appeal - whether court orders had been entered - date upon which orders perfected - Prothonatory satisfied that orders not entered - assurance given to appellant that order would not be entered - orders subsequently perfected

Criminal law - Sentence - Backdate of sentence - Discretion.

CRIMINAL PRACTICE - trial by jury - trial of indictable offence against the Commonwealth - Commonwealth Constitution s 80 - tried according to law - requirements of criminal process in a fundamental respect - decision to discharge juror - decision to discharge jury - decision to proceed with fewer than twelve jurors - discharged "for any other reason" - whether miscarriage of power or discretion - nullity - persons disqualified or ineligible - verdict not affected or invalidated - statutory construction - mandatory provisions - Jury Act 1977 (NSW) ss 19, 22, 73 Sch 1

Criminal law - sentencing - history of repeat offending - subjective circumstances - offences on Form 1 - sentence not manifestly excessive.

CORPORATIONS – Investigation by ASIC – Application for orders under s 1323 of the Corporations Act 2001 (Cth) – Application for freezing orders in relation to property – Application for order restraining defendant from leaving Australia – Court’s task in determining application an exercise in risk assessment and risk management – Court satisfied that there are persons to whom defendant is or may be or may become liable to make monetary compensation – No requirement that plaintiff demonstrate that there is a prima facie case that defendant liable to compensate such persons – Held that orders under s 1323 necessary or desirable to protect interests of such persons – Ambit of court’s power to make orders under s 1323 – Orders made limited to those clearly justified by s 1323. - (Cth) Corporations Act 2001, s 1323

CONTRACTS [37] – General contractual principles – Offer and acceptance – Agreements contemplating execution of formal document – Whether concluded contract – Intention of parties – Determining intention from communications between parties – Relevant considerations.

Amend Statement of Claim - separate determination of issues

Amend Statement of Claim - separate determination of issues

Personal injury - Damages - Calderbank offer - Plaintiff's non acceptance of offer not unreasonable.

PROCEDURE – Contempt – Power of court to punish for contempt – Where breach of undertaking to the court wilful only in the sense that contemnors conscious of non-compliance with undertaking to the court – Where contemnors intended to comply with undertaking but were unable to do so – Contempt committed without intent to defy the authority of the Court – Held that contempts not of a kind punishable by a fine. - PROCEDURE – Costs – Order for costs on indemnity basis including costs “incidental to” notice of motion – Order that costs be payable forthwith.

ESTOPPEL – Equitable estoppel – Proprietary estoppel – Deceased represented he would leave plaintiff his house in his will – Plaintiff carried out work on deceased’s house – Plaintiff did not act in reliance upon representations – Plaintiff did not suffer detriment as no change of position – No basis for proprietary estoppel

PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – preliminary discovery – where seeking to identify possible defendants – privacy protection – Uniform Civil Procedure Rules 2005, s 5.2 – Road Transport (Vehicle Registration) Act 1997, ss 11, 15 – Road Transport (Vehicle Registration) Regulation 1998, reg 15 – Privacy Act 1988 (Cth), s 14 - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – preliminary discovery – where seeking to identify possible defendants – whether application has been made after applicant has made “reasonable enquiries” to ascertain identity –whether freedom of information application should have been made – Uniform Civil Procedure Rules 2005, r 5.2(1)(a) – Freedom of Information Act 1982 (Cth) - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – preliminary discovery – where seeking to identify possible defendants – whether discovery “tends to assist in ascertaining the identity” of persons concerned – Uniform Civil Procedure Rules 2005, s 5.2(1)(b)

SUCCESSION- Family provision application- Trial judge awarded adult companion of deceased $425,000- Plaintiff living in a domestic relationship with deceased for purposes of s 6(a)(ii) of Family Provision Act 1982- Deceased was plaintiff's "honorary aunt"- Whether relationship had ceased at the time of deceased's death- Held a domestic relationship is not necessarily at an end when one person is temporarily absent from household- Whether award so generous that no reasonable judicial officer could have made it- Held award not so generous as to warrant interference by an appellate court.

Client legal privilege - whether affidavits in support of an application to set aside an agreement to compromise constitute waiver - authority of tutor - competence and integrity of former legal advisors in issue - ss 122(1) - (4) of the Evidence Act.

Costs order - denial of natural justice

Summary dismissal - statutory and equitable claims for contribution - settlement of claim against alleged tortfeasor - release and consent dismissal order

Leave to amend

Equity - Joint-venture/partnership - Trust and confidence - Fiduciary obligations - Unconscientious use by joint venture/partner of power arising from material circumstances - Practice and procedure - Finding that parties on each side of the Bar table acted with intent to defraud the Taxation Commissioner - Difficulties of assessing credit in that circumstance - Clean hands defence - Claims to account - Recipient liability - Constructive knowledge includes imputed knowledge - Distinction between 'mere notice' cases and circumstances where agent has active duties to perform and knowledge present to his mind is relevant to their performance - Where agent is authorised to commit principal to transaction, his state of mind being relevant to that transaction, for legal purposes acts of agent are acts of the principal and agent's state of mind constitutes state of mind of principal - Second defendant taken to have had knowledge of her husband where he was acting as her agent - Courts and Judges - Income tax fraud coming to attention of Court during hearing - Duty to bring facts to notice of executive branch of government

Leave to commence proceedings - s 151D WCA

PRACTICE – jurisdiction of Supreme Court generally – supervisory jurisdiction over inferior domestic tribunal – application to review order of inferior domestic tribunal – whether uncertainty or ambiguity in order made – no occasion to exercise supervisory jurisdiction

CRIMINAL LAW: Sentence - common assault - applicant assaulted disabled woman under his care - whether sentence manifestly excessive

CRIMINAL LAW - Appeal against conviction - application for leave to appeal against sentence - attempt by local council to enter appellant’s property - purpose of entry to carry out court order - use of weapon to prevent lawful apprehension - malicious wounding of police officers to avoid apprehension - whether self-defence considered by the jury - whether orders of the Council and Land and Environment Court were valid - whether police had authority to enter premise

MENTAL HEALTH - Protected Estates - proposed appointment of Trustee Company as manager - Trustee Company proposed declaring special trust of managed estate assets - possibility protected person might not be sole beneficiary - discussion of difference between trust estates and managed estates - many provisions of proposed trust deed not appropriate for an estate managed pursuant to an order under Protected Estates Act 1983