Cases and authorities

CORPORATIONS - winding up - statutory demand - whether genuine dispute as to amount or existence of debt - no question of principle

GAMING MACHINES ACT – LEASE – INTERLOCUTORY INJUNCTION – application by lessor for interlocutory injunction restraining transfer by lessee of poker machine entitlements – strong prima facie case that lessee’s application for approval to transfer entitlements a breach of lease –whether damages adequate remedy – express negative covenant strong foundation for grant of final injunction – balance of convenience – interlocutory relief granted.

CRIMINAL LAW: - Sentence - murder - two offenders - accessory before the fact and principal - accessory before the fact also sentenced for cheating and defrauding as a director - murder premeditated - planned by accessory before the fact and for his benefit - carried out by principal - no significant reward - whether maximum sentence called for - substantial determinate sentence in each case

CORPORATIONS - winding up - winding up by the court - service of originating process and supporting affidavits - documents sent by post to registered office - returned by post office marked "refused" - whether served

CHILDREN – care and responsibility – review of interim care responsibility orders – interim order conferring parental responsibility of children on Minister for Community Services – serious issue to be tried as to whether final order should be made – Director-General of the Department of Community Services obtaining discharge of contact order to enable Minister to send children to New Zealand prior to final order – whether this amounts to an abuse of process – ss 69, 70, 70A and 72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) considered - LEGAL PRACTITIONERS – parties to proceedings – whether legal practitioners appointed by the Children’s Court of New South Wales pursuant to s 99 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court

SUCCESSION [321]- Family provision application- Application by disabled adult son- Will grants plaintiff right to reside in deceased's house- Right subject to condition that executors approve any person residing with son- Son's carer not approved to reside with him- Son left without adequate provision- Whether court to take social service benefits into account when making an order under the Act.

CORPORATIONS – oppression and unfair prejudice – exclusion of member from day-to-day management – quasi-partnership – indicia of quasi-partnership corporation – valuation of shares.

CORPORATIONS [105]- Officers' duties- Defendants held to be in breach of ss 182 and 183 of Corporations Act- Declaration of contravention sought under s 1317E- Declaration can only be sought by ASIC. - INTELLECTUAL PROPERTY [112]- Confidential information- Whether information on "the plaintiff's clients" too broad to be considered confidential- Need for definition of what "the plaintiff's clients" covers.

PRACTICE – Default judgement – Default in filing defence – No appearance of defendant at hearing – Defendant taken to have received notice of proceedings

CRIMINAL LAW - Stay of proceedings - Application for permanent stay - non-disclosure by prosecution - Application for temporary stay - CDPP to pay costs for previous trials

ADMINISTRATIVE LAW - application for leave to appeal against order of Administrative Decisions Tribunal - access to document - Freedom of Information Act 1989 - objects of FOI Act - entitlement to access to documents - limitations on right to access - exempt documents - exemption from operation of FOI Act with respect to certain functions - document sought relates to corruption prevention, complaint handling, investigative and report functions - Operations Review Committee - ICAC exempt in relation to document sought

CONTRACTS – Proposed joint venture to develop property – Whether joint venture memorandum void for uncertainty – Rights arising from failure of joint venture to materialise – Where proposed joint venture party lent money to joint venture company – Whether agreement for interest on loan existed – Where moneys were re-borrowed by lending party at high interest rates – Order for loan and interest to be repaid – Interest to be calculated at court rates compounded monthly - EQUITY – Fiduciary duties – Negotiations for joint venture which did not materialise – Whether property held on trust for proposed venture parties – Negotiations based on false representations - EQUITY – Maxims – Lack of clean hands – Joint venture negotiations arising through false representations

CRIMINAL LAW - sentencing - redetermination of life sentence imposed for murder - objective seriousness of offence - totality - life sentence redetermined

CRIMINAL LAW - application to adjourn commencement of criminal trial - adjournment to permit accused to secure funds for private legal representation - adjournment granted

RESTRAINT OF TRADE – Solicitor – Clause in partnership agreement – Application for interlocutory injunction restraining former partner from providing legal advice to clients of partnership, or enticing any person employed by the partnership from continuing employment – Whether clause valid – Balance of convenience – Injunction in the terms sought would not serve the purposes of the clause – Limited injunction ordered.

CORPORATIONS - winding up - application for winding up in insolvency pending - deed of company arrangement in place - judgment reserved on application directed towards termination of deed - application by plaintiff in both proceedings for order in winding up proceedings restraining dealings with property said to be property of company - application founded on s.467(1)(c) - where progressing of winding up proceedings precluded by s.444E - whether court may make order only capable of being made "on hearing a winding up application"

APPEAL from Magistrate - procedural fairness - denial of natural justice - inadequate reasons - findings of credit without party given sufficient opportunity to respond

Sentence - serious offences of violence - protection of the community - non-parole period in excess of statutory proportion

CRIMINAL LAW - application for pretrial hearing on admissibility of evidence - application refused

Family Provision. Application under Family Provision Act by a daughter. Estate valued at $70,000. Costs incurred $74,000. Orders made capping plaintiff's costs.

Partnership - sale of interest - claim pursuant to agreement of sale - misdirection (claim erroneously determined on basis not in issue between the parties) - final settlement of account - extension of time.

Appeal Panel - "appeal", "to be heard" and injured worker entitled "to be accompanied" by a person - an adversarial hearing not intended - review of original medical assessment - practice direction - on the papers review by agreement - application of DRE Cervical Category II (including Table 15-5).

Approval of Social Impact Assessment - power exercisable upon satisfaction of threshold requirements - this satisfaction involves a fact finding process and not the exercise of a discretion - self-exclusion scheme and utility.

CONTRACT – building contract – implication of term by custom or usage - whether custom or usage so well-known to home owners to imply term into contract – whether implication contrary to express terms of contract - REASONS FOR DECISION – whether trial judge gave adequate reasons for decision – whether trial judge failed to properly engage in fact-finding exercise – determination of expert evidence - DAMAGES – damages for breach of building contract – whether damage proved – rejection of evidence - difficulties in estimating loss – damages should not be nominal - UNREPRESENTED LITIGANT – duty of a trial judge - whether trial judge ensured unrepresented party understood procedural options – failure to provide explanation of processes - APPEAL – order for new trial - whether trial sufficiently unfair to demonstrate miscarriage

CONTRACTS — Building, engineering and related contracts — Other Matters — Building and Construction Industry Security of Payment Act 1999 s 22 —Adjudication — Determination based on matters wholly unrelated to the matters in s 22 — Essential precondition to the existence of a valid determination not met

COSTS – offers of compromise – offer lapsed with termination of earlier proceedings – due to continuity of subject matter, offer still a relevant consideration for exercise of discretion in awarding costs in subsequent proceedings – reasonableness of failure to accept offer

CONTRACT - oral contract - spoken words in absence of reliable contemporaneous record or corroboration - standard of proof - reasonable satisfaction of court - reasonable satisfaction of court not established independently of considerations of seriousness or gravity of consequences flowing from alleged oral agreement.

Action in essence one at law - assignment of legal chose in action - rights under guarantee - necessity to serve notice under s 12 Conveyancing Act for assignee to maintain action at law in his own name - Failed business venture - Fiduciary Duties - Unjust enrichment - Contribution - Transfer with intent to defraud creditors

EQUITY – Unconscionable conduct – defendants seeking to execute on a judgment for full amount where discounted amount not paid by due date as specified in Agreement As to Judgment – plaintiffs paid money into their solicitor’s trust account and solicitors failed to make payment to defendants by due date - plaintiffs seek declaration that defendant is unconscionably taking advantage of a mistake made by plaintiffs’ solicitors. - CONTRACT – Implied terms – whether necessary to give business efficacy to the Agreement As to Judgment that a term be implied that defendants were required to stipulate to whom payment was made and to give direction to pay – termination of solicitors’ retainer post entry of judgment and solicitors’ authority to receive payment on behalf of defendants – payment, whether cash only is legal tender

CORPORATIONS – Examinations relating to insolvency - Application to set aside summonses for examination – Whether summonses sought for dominant improper purpose – Whether summons related to “examinable affairs” of a corporation – Consideration of ss 9, 53 and 596F(1)(a) of the Corporations Act – Whether liquidator had full knowledge of relevant matters – Liquidator’s entitlement to investigate existence of possible causes of action – Whether liquidator’s affidavit misleading or failed to disclose material matters – Discretion to set aside examination summons – Application to set aside examination summons refused. - COSTS – Application for security for costs against liquidator refused – Applicants liable for costs of application.

CONVEYANCING [100] – Relationship of vendor and purchaser – Breach of contract – Breach by the purchaser: remedies of vendor – Re-sale – Recovery of deficiency – Election between recovery of deficiency and common law damages – What constitutes – Basis of calculation of what may be recovered.

CIVIL LAW - PRACTICE AND PROCEDURE - application for adjournment by plaintiff on final day of hearing - forensic prejudice to defendant - ability to properly determine present claim if adjournment denied - undertaking by defendant that no Anshun, issue estoppel or analogue point would be taken

Sentence - applicant convicted of one count of aggravated sexual assault - jury verdict on limited evidence pursuant to the Mental Health (Criminal Procedure) Act 1990 - whether power to impose a limiting term under the Crimes (Sentencing Procedure) Act 1999 - consequences of finding pursuant to the Mental Health (Criminal Procedure) Act - judge had the power and jurisdiction to impose a limiting term pursuant to the Mental Health (Criminal Procedure) Act - remarks on sentence did not translate to determination of the appropriate duration of the limiting term - sentence imposed manifestly excessive.

CRIMINAL LAW - sentencing - application for leave to appeal severity of sentences - two offences aggravated break, enter and steal - two offences aggravated steal and break out - one offence attempted robbery in company - one offence aggravated attempted carjacking - five Form 1 offences - pleas of guilty - prior criminal record - finding of special circumstances - accumulation of sentences - statutory proportions of sentences - purpose of finding of special circumstances - whether overall sentence manifestly excessive - moral culpability - structure of sentences

Criminal law - sentencing - Crown concession on non-parole period - procedural fairness - armed robbery - relevance of guideline judgment - calculation of composite discounts - special circumstances - double counting - totality of sentences

CRIMINAL LAW - Appeal against conviction - sexual assault - acquittal directed on 3 counts - 13 year delay in complaint - whether trial judge erred in rejecting relationship evidence between the complainant and appellant whether jury verdicts unreasonable - whether verdicts unsupported by evidence - inconsistencies between complainant’s evidence and Crown opening

conviction appeal - false alibi - consciousness of guilt - failure to direct as to lies - defence submitted should not direct on lies - application of Rule 4 - application of proviso to 6(1) of Criminal Appeal Act 1912 - no miscarriage of justice

CRIMINAL LAW - sentencing - application for leave to appeal against sentences - supply prohibited drug - possession prohibited firearm - carry firearm in a manner likely to injure a person or property - pleas of guilty - special circumstances - statutory proportions of sentences - purpose of finding of special circumstances - multiple offences - accumulated or partially accumulated terms of sentences - whether sentences manifestly excessive - procedural fairness

CRIMINAL LAW - sentencing - offences of making and using a false instrument and obtaining a financial advantage by deception - application of s21A Crimes (Sentencing Procedure) Act 1999 - whether global approach to sentencing appropriate - requirement to apply Pearce v The Queen - whether sentences manifestly excessive.

sentence appeal - violent assaults on police - whether difference between remorse and contrition - standard non-parole period - failure to consider - sentences reduced

COSTS – interlocutory application – whether appropriate to make order for costs to be paid before conclusion of proceedings – whether trial judge erred in exercising his discretion by ordering that the appellant should not be given a date for hearing unless and until the appellant pays the respondent’s costs of the cross-claim – discretion exercised for penal purposes – trial judge failed to consider affidavit material of the appellant when exercising his discretion – order set aside

JUDGMENTS & ORDERS – orders of Court affirmed on appeal – subsisting orders those of appellate Court - RES JUDICATA – order for limited new trial – composite order – partly final partly interlocutory

NEGLIGENCE - roads - injury to pedestrian falling in pothole in road - liability of roads authority - failure to maintain road - whether immunity under s 45 Civil Liability Act 2002 (D)

CONTRACTS – Rescission – Rescission for innocent misrepresentation – No question of principle.

Succession. Family Provision. Claims by three adult daughters. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for her proper maintenance. Plaintiffs and Defendant are by will entitled to share residue of estate. Costs of present proceedings will largely exhaust that residue. Competing claim of Defendant.

CORPORATIONS - winding up - creditors voluntary winding up - application for leave to proceed with cross-claim against company in Local Court proceedings - where company was plaintiff in those proceedings but assigned cause of action after commencement of winding up - assignee substituted as plaintiff in Local Court - whether set-off pursuant to s.553C had occurred - because it had not, no need for applicant's claim to be pursued in existing proceedings

CONTRACTS – Option – Exercise of option – Question of whether notice of exercise of option served within time – Construction of option period – Ambiguity – Meaning of “date of this deed” – Where deed backdated by solicitor – Where no evidence of authority to backdate deed – Held option exercised within time - MISTAKE– Rectification – Claim on basis of a common mistake or a unilateral mistake – No evidence of common mistake or unilateral mistake