Cases and authorities

CORPORATIONS - Winding-up - Special purpose liquidator appointed to investigate renounceable rights issue by company - How expenses incurred by special purpose liquidator for legal costs and disbursements should be paid.

Sentence - Manslaughter - Joint Criminal Enterprise to Assault - No evidence of offender's particpation in assault.

FAMILY LAW & CHILD WELFARE – Adoption – Intercountry adoptions – Prospective adoptive parents sought adoption of children from Philippines – Philippines and Australia parties to Convention on Protection of Children and Co-operation in respect of Intercountry Adoption – Prospective adoptive parents made applications pursuant to both Chapter 4 Adoption Act 2000 (NSW) and Regulation 15 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) – Director-General of New South Wales Department of Community Services also made application on behalf of prospective adoptive parents pursuant to Chapter 5 Adoption Act – Where Adoption Act and Commonwealth Regulations provide different regimes for intercountry adoptions between parties to Convention – Where Commonwealth Regulations inapplicable if Adoption Act has same or comparable effect to Commonwealth Regulations – Whether Adoption Act has same or comparable effect to Commonwealth Regulations – Held that Adoption Act not of same or comparable effect to Commonwealth Regulations - CONSTITUTIONAL LAW – Operation and effect of Commonwealth Constitution – Inconsistency of laws – s 109 Commonwealth Constitution – Whether provisions of Adoption Act pursuant to intercountry adoptions between parties to Convention inconsistent with Commonwealth Regulations – Held that provisions of Adoption Act pursuant to intercountry adoptions between parties to Convention inconsistent with Commonwealth Regulations and invalid to extent of inconsistency - FAMILY LAW & CHILD WELFARE – Adoption – Intercountry adoptions – Whether prospective adoptive parents entitled to orders for adoption of children pursuant to Regulation 15 Commonwealth Regulations – Orders pursuant to Regulation 15 Commonwealth Regulations made.

Crown appeal against sentence - maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to s33 of Crimes Act 1900 - incorrect use of standard non-parole period - restraint to be exercised in Crown appeal.

Family Law. De facto relationship. Whether or not such a relationship existed. Whether Plaintiff was only a boarder in Defendant's property. Financial arrangements between parties concerning Plaintiff's residence in Defendant's property. Sexual relationship between parties. Three separate periods of asserted de facto relationship. Claim is out of time in respect to each of those periods. No application for extension of time. Only one of those periods is asserted to have been for not less than two years. Whether Court is precluded from making an order for the adjustment of the interests of the parties in property. Asserted contributions by Plaintiff in capacity of homemaker or parent.

CIVIL LAW - possession of property - enforcing consent orders - enforcing a judgment - cannot vary or avoid contract upon which judgment has been based - refinancing of mortgages over investment properties to discharge bankruptcy is not credit provided predominantly for personal, domestic or household purposes where mortgagor is otherwise solvent - consent judgment not set aside.

COSTS – General rule – Departing from general rule – Plaintiff partially successful in prosecuting claims brought against first and second defendants – Plaintiff recovered a substantially smaller amount of damages than that claimed – Proceedings delayed and costs increased by way in which plaintiff’s evidence prepared and presented – Whether costs should follow the event – Powers of Court in relation to costs – s 98 Civil Procedure Act 2005 (NSW) considered – Order that costs to which plaintiff entitled should be reduced by on-quarter.

Action under the Excise Act 1901 and the Excise Tariff Act 1921 - allegations that blending petrol and diesel without a licence - evading duty - elements each offence - construction Excise Act and Regulations.

TRADE AND COMMERCE - employment-requirement for circumstances - taking activity beyond mere employment - INDUSTRIAL RELATIONS - UNFAIR CONTRACTS - exclusion for employees earning more than remuneration cap - meaning of "arrangement" - meaning of "related condition" - excludes award and statutory benefits - PRACTICE AND PROCEDURE - strike out - not finally determine questions that will not shorten proceedings.

Extremely difficult plaintiff's case - despite mistakes circumstances not warranting costs orders against solicitor personally - Order that the State pay the Centre's costs of defending plaintiff's claim not warranted

CORPORATIONS – Membership, rights and remedies – Members’ remedies and internal disputes – Proceedings on behalf of company by member – Progression of proceedings no. 4348/04 and proceedings no. 3487/05 deadlocked by failure of natural parties to resolve question of corporate parties’ representation – Where both proceedings have consumed substantial judicial resources and threaten to continue to do so – Whether exercise of Court’s powers to facilitate just, quick and cheap resolution of real issues in both proceedings inconsistent with Chapter 2F Corporations Act 2001 (Cth) – s 79 Judiciary Act 1903 (Cth) considered – Held that exercise of Court’s powers under s 61 Civil Procedure Act 2005 (NSW) and s 23 Supreme Court Act 1970 (NSW) not inconsistent with Corporations Act – Order that each natural party have leave to defend, on behalf of the corporate parties, claims which the opposite natural party is bringing against the corporate parties.

Criminal law - Sentencing - Murder - Three life sentences - Culpability - Standard of proof - Mental illness - Fresh evidence.

Crown appeal - manifest inadequacy of suspended sentences for "white collar" offences involving theft from employer - prior good character of lesser weight - no exceptional circumstances - discretion not to intervene.

CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE SERIOUS OFFENCES - INTER ALIA COMMERCIAL MANUFACTURE AND DISTRIBUTION OF AMPHETAMINES - LIFE SENTENCES AVAILABLE - POSSESSION OF WEAPONRY - ATTEMPT TO STEAL ATM WITH VEHICLES STOLEN FOR THAT PURPOSE - EXTREMELY HIGH LEVEL OF CRIMINALITY - SUBSTANTIAL BUT NOT INDETERMINATE SENTENCES IMPOSED - NO ERROR BY SENTENCING JUDGE NOR MISCARRIAGE OF SENTENCING DISCRETIONS

Criminal law - Sentence - Application De Simoni principle - Application standard non parole period - Special circumstances - Sentence varied.

ADMINISTRATIVE LAW – judicial review – failure to take account of relevant considerations – public housing transfer application – whether religious requirements were “personal preferences” for the purpose of the Department of Housing’s Transfer Policy – whether refusal of accommodation reviewable if it would render compliance with religious beliefs impracticable or would subject their observance to unreasonable conditions - ADMINISTRATIVE LAW – failure to accord procedural fairness – “practical injustice” as basis for dismissing application for judicial review – whether later decision, which has not been arrived at, is likely to be infected by the same error as the decision under review – discretionary refusal of relief - DISCRIMINATION – ethno-religious discrimination – application in judicial review proceedings

CONTRACTS – building, engineering and related contracts – alleged non-compliance with contract specifications – payment claimed under s 8 of the Building and Construction Industry Security of Payment Act 1999 – whether breach of contract – measure of damages – assessment of expert evidence

INSURANCE – accidental death insurance policy – whether death while undergoing chemotherapy treatment was an “accident” within the terms of the policy – whether chemotherapy treatment was an “event” – whether the life insured suffered physical injuries caused solely by violent, visible and external means - INSURANCE – insurance policy as a commercial contract – construction of insurance policy – interpretation according to language, commercial circumstances, and the objects of the policy – proximate cause of loss and damage

REAL PROPERTY – Meaning of “fixture” in the case of a house purportedly sold on underleased land where the house was not severable and had been on the land for some years – lesser weight of subjective intention as against objective circumstances – to the extent it is relevant, subject intention must be that of original occupier of land and of the builder of the house, not a subsequent purchaser – “prescribed premises” for purposes of protection under Landlord and Tenant Act – whether lease of bare land. - PROCEDURE – Issue and Anshun estoppel not arising where jurisdiction held to be absent under Residential Tenancies Act 1987 by the Consumer, Trader and Tenancy Tribunal in preliminary proceedings where no decision on merits.

LIMITATION PERIOD – expired limitation period – leave of court required to commence proceedings – whether delay gave rise to significant prejudice to the potential defendant - MOTOR ACCIDENT – time limitation in which to commence proceedings under Motor Accidents Compensation Act 1999 (NSW) – applicant sought extension of time limitation – where prejudice arose from death of insured and absence of their evidence – whether delay gave rise to significant prejudice to the potential defendant

PRACTICE AND PROCEDURE – default judgment in absence of appearance by defendant – District Court Rules 1973 (NSW), Part 11 – standard directions by Registrar to file defence within 28 days – order for judgment obtained prior to expiration of that period – whether Registrar’s direction gave the defendant an unqualified right that the plaintiff take no steps under Part 11 until period in the direction had expired - JURISDICTION – statutory court – District Court Act 1973 (NSW), s 159 – whether District Court had “inherent jurisdiction” to set aside judgment - APPEAL – failure of trial judge to make a finding on a ground relied on by the defendant

PRACTICE AND PROCEDURE - costs - unaccepted Calderbank offer - whether should displace order that each party pay their own costs - HELD - no. (ND)

NEGLIGENCE - appellant injured while participating in a horse trail ride - appellant was five years and eight months old at the time of the accident - duty of care - whether it was negligent to permit a beginner of five years and eight months to go on a trail ride - whether it was negligent to not individually lead the appellant's horse during the trail ride - whether expert evidence was relevant in assessing risk - knowledge and perception of risk - whether judicial notice can be taken of risks inherent in horse riding - whether risk was foreseeable - whether respondents' system of operation was a reasonable response to foreseeable risk - relevance of industry practice. D

Criminal Law - Provocation - Crimes Act s 23 - Trial judge's directions on provocation.Trial Judge erred in law in his directions to the jury

PRACTICE AND PROCEDURE - interrogatories - where order made by consent that defendant answer specified interrogatories - where defendant thereafter objects to answer on ground that certain interrogatories vexatious - whether that objection remains open once order to answer has been made - Uniform Civil Procedure Rules 2005 NSW, rules 22.1-.3

UNDERTAKING TO COURT – Whether one party unreasonably refused to comply with interim agreement between parties – whether other party’s undertaking to Court conditional on performance of agreement should be released.

Sale of shares - contractual arrangement to pay rental - appeal from Local Court - alleged failure to distinguish between company and its shareholders - alleged lack of factual support for findings - questions of interest and costs.

PROCEDURE – Supreme Court procedure – reference to referee – reference made before commencement of Uniform Civil Procedure Rules, but question of whether report should be adopted arises after commencement of Uniform Civil Procedure Rules – whether Uniform Civil Procedure Rules the relevant ones in deciding whether to adopt report – tests for adoption of report – whether appropriate for Court to itself correct certain errors in report – CONTRACTS – PARTICULAR PARTIES – principal and agent – commission agent – entitlement to commission when an effective cause of a sale – relationship between introduction and being an effective cause.

TAXES AND DUTIES - Stamp duties - Transfers of strata lots - Whether subject to nominal duty as a partition under the Duties Act 1997, s 30 - Partition limited to holding of land as joint tenants or tenants in common - Consolidated lot and strata lots from it registered as the first plaintiff holding the part formerly in its ownership and the second plaintiff holding the part formerly in his ownership - Whether the Real Property Act 1900, s 100(1) requires a holding in co-ownership rather than severalty to deem the plaintiffs to hold as joint tenants - Whether by the instrument of consolidation the plaintiffs were deemed to hold their interests in the consolidated lots as tenants in common by the Conveyancing Act 1919, s 26(1) - Whether the plaintiffs were thereby deemed to hold the strata lots as tenants in common

PROCEDURE - costs - where plaintiff resisted claims for removal of three caveats - two caveats found to have no substance whatsoever - indemnity costs awarded against plaintiff - where third caveat had substance but removal was ordered on payment into court where parties should have agreed on such alternative arrangement - no order as to costs

Rental by pl of ATM to 1st def pursuant to finance arrangement - performance of agreement by 1st def guaranteed by 2nd def - ATM never operational - issue as to return of goods and refund of monies - finding by Magistrate of mutual termination of agreement - appeal to Supreme Court - matter remited back to Local Court - further judgment of Magistrate - lack of evidentiary support for resuolt reached - onus on def not discharged.

Appeal decision of Local Court Magistrate - alleged overpayment for poker machines

INJUNCTION – Urgent application to restrain exercise of mortgagee’s power of sale – mortgagor has no defence in law or equity – alleged non-receipt of s.57(2)(b) Notice no proof that Notice not served under s.170 Conveyancing Act – unreasonable delay in bringing application

LANDLORD AND TENANT - rent - rent review clause - in long-term lease entered in 1968, where rent review dependent upon unimproved value of land - in the meaning of Valuation of Land Act 1916 - effect of amendment of Valuation of Land Act 1916 to remove concept of unimproved value - ENVIRONMENTAL LAW - legislation generally - Valuation of Land Act 1916 - general considerations of manner of operation - role of concept of "land value" - operation of objections to valuation

CORPORATIONS – Winding-up – Other grounds for winding-up – Application by Australian Securities and Investments Commission (ASIC) for orders that the first and second defendants be wound up on just and equitable ground – Where defendants have no presence at registered offices – Where director of each defendant of unknown whereabouts – Where in public interest that defendants be wound up – No question of principle – Application granted.

Administrative law - Cancellation of licence - No failure to accord procedural fairness - No error of law.

Sentence - provocation/manslaughter

EVIDENCE – admissibility and weight of evidence concerning what the person giving evidence would have done in a certain hypothetical situation TRUSTS – certainty of subject matter – whether possible to have trust of a certain number of shares out of a larger parcel of shares - CORPORATIONS – nature of rights comprised in a share – whether the choses in action connected with company shares must be identified on a share by share basis – significance of individual numbering of shares – TRUSTS - equitable compensation for breach of trust – to whom payable – principles by which calculated – TRUSTS – whether contractual agreement not to dispose of any interest in shares makes it impossible to declare a trust of those shares – whether possibility of court orders to enforce restrictions on restricted securities (within meaning of ASX Listing Rules) makes it impossible to hold such securities on trust - effect of various restrictions on “restricted securities” (within meaning of ASX Listing Rules) on remedies for breach of trust concerning those securities – TAXATION – capital gains tax – operation of capital gains tax when trust is declared of some of a larger holding of shares – TRUSTS – whether the intention necessary to create a trust is objective or subjective – CONTRACT – whether the intention necessary to enter contractual relations is objective or subjective – CONTRACT – when provisions as to time are of the essence – CONTRACT – measure of damages for breach – EVIDENCE – burden of proof – of payment being a loan – SUCCESSION – EXECUTORS AND ADMINISTRATORS – specific legacy of a certain number of shares from a larger holding – operation of executor’s assent – TRUSTS – of part of a debt – EVIDENCE – significance of a litigant giving evidence very important for her case only late in the development of the case – EQUITY – whether fiduciary duty owed by a wealthier de facto partner to a less wealthy de facto partner

CAUSATION – suicide – whether chain of causation broken - NEGLIGENCE – damages – suicide of victim

Negligence - truck driver injured when truck overbalanced when tipping load - said he moved from being out-of-level to apparently level ground - whether trial judge in error in accepting this evidence - submission that if was level ground truck could not have overbalanced - other evidence that apparently level ground had irregularities - on facts, could have overbalanced and acceptance of driver's evidence not in error - whether negligence in not providing better tipping area - fact no accidents for a prior period not determinative - risk foreseeable and potentially serious consequences - not reasonable to ignore risk - whether driver's injury an "injury" within definition in Motor Accidents Compensation Act 1999 - no fault in his driving - fault of his employer as owner of truck was not in use or operation of truck but in the system of work for its employee - injury not within definition.

Construction contract - for construction of pavement at container depot - pavement failed - whether because of contractor's defective workmanship - whether could recover cost of rectification under cover for "costs of loss or damage caused directly by" the defect in workmanship in the pavement - whether designing and to some extent supervising engineer in breach of contract with owner of depot - or in breach of a duty of care owed to owner or to contractor - whether geotechnical consultant engaged by engineer in breach of duty of care owed to owner or to contractor.

CRIMINAL LAW - APPLICATION FOR AN ORDER UNDER S 474D - referral to the Court of Criminal Appeal - second application made - whether possibility of miscarriage of justice - whether grounds already determined at trial, on appeal or in reasons for refusing previous application - whether grounds raise a question of doubt as to guilt

CRIMINAL PROCEDURE – duplicity – lack of particularity - ENVIRONMENT PROTECTION – pollutant likely to fall and descend into protected waters

TAXES AND DUTIES - Pay-roll Tax - A superannuation benefit other than one paid or payable in respect of services rendered by an employee before 1 July 1996 is included in wages under the Pay-roll Tax Act 1971, s 3AA(6A) - Wages payable in New South Wales or payable elsewhere for services rendered wholly or partly in New South Wales are liable to pay-roll tax under s 6(1) - Superannuation benefit defined in s 3(1) to include money paid or payable by an employer in respect of an employee to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth) - Plaintiff paid top-up contributions to a defined benefit fund at all times actuarially in surplus to bring its assets actuarially to 120% of its liabilities - Whether must identify a benefit to an individual employee before the payment becomes a superannuation benefit - Fund closed and no new members admitted in 1990 - Most members pensioners and retired employees or dependents - Whether in absence of a deficient at 30 June 1996 the contributions must have been attributable to post-30 June 1996 service - Whether 96% of contributions attributable to pre-1 July 1996 service

PROCEDURE [113]- Judgments and orders- Judgment entered by Associate's notes being recorded in court computer- Party later complains one vital aspect not dealt with by judge- Complaint not established, but even if true, court had become functus and could not remedy problem.