Cases and authorities

Appeal decision of Local Court Magistrate - Small Claims Division - denial of natural justice

COSTS - application for leave to bring derivative proceedings, and derivative proceedings brought pursuant to leave - husband and wife are the real protagonists - overall, discretionary considerations evenly balanced between them - neither should be favoured with respect to costs - how to achieve that objective when corporations owned by them equally are parties to the proceedings - CORPORATIONS - derivative proceeding - indemnity orders made so as to attribute any corporate costs to the noncorporate parties

CRIMINAL LAW - jury trial - extravagant and improper submissions in closing address of Crown Prosecutor - role and duties of prosecutor - need for compliance with professional ethical rules and statutory guidelines concerning duties of prosecutor - miscarriage of justice - conviction quashed and new trial ordered

SENTENCING - application for extension of time - appeal against severity of sentence - importation of trafficable quantity of MDMA - prior conviction for importation of commercial quantity of cannabis resin - no error demonstrated

TRADE PRACTICES – misleading and deceptive conduct under Trade Practices Act - CAUSATION – Trade Practices Act - importance of statutory context – governing words in s 82 – “by conduct of” – whether appellant suffered loss by the respondent’s contravening conduct – “but for” test inapplicable on facts – determination of what conduct would not be misleading - DAMAGES – Trade Practices Act – not limited by analogy to other areas of law – closely linked to causation – approach should be flexible to avoid injustice – entitled to prove loss on a discrete portion of contract - PRACTICE AND PROCEDURE – decision by Referee – competing expert evidence – adequate reasons required in form of examination and analysis of evidence – inadequate attention given by Referee

No questions of general principle involved - case turns on terms of particuilar documents of no general importance and particular facts

TRADE AND COMMERCE [28] - Trade and commerce generally - Restraint of trade - Restraint by agreement - Enforcement of agreement - Remedies for breach of agreement - Right to injunction - Interlocutory injunction - Whether injunction may be granted to restrain use of confidential information, solicitation of employees and employment by competitor.

application for order for possession of real estate - whether application ought to be adjourned - s57 Legal Aid Commission Act 1987 - no appearance of defendant - prima facie entitlement to adjournment - onus on party resisting adjournment - special circumstances - title of property transferred to plaintiff - medical condition of defendant - defendant's need for legal advice and representation - mounting debt to mortgagee - defendant's application for legal aid refused - defendant appealled to Review Committee of Legal Aid Commission - orderly dissolution of non-functioning company - need for expedited hearing of Review Committee of Legal Aid Commission

CORPORATIONS – Winding up – Winding up in insolvency – Statutory demand – Application to set aside statutory demand – Defendant served plaintiff with statutory demand – Defendant alleged debt for outstanding and unpaid after-tax salary – Plaintiff alleged no debt owing because defendant had provided no services – Whether genuine dispute that plaintiff indebted to defendant – Assessing genuineness – Where dispute genuine – Application granted.

Judicial review - assessment by CARS assessor - alleged misapplication or misunderstanding of statutory criteria - statutory scheme of assessment and award of damages - findings of fact on quantum - no jurisdictional error or error of law on face of the record

Corporations - Winding-up - Application to set aside winding-up order or to terminate winding-up - Interlocutory orders - Inadequate undertaking as to damages - Position of third parties - Interlocutory orders refused.

CRIMINAL APPEAL – BAIL – Power of Court of Criminal Appeal to review decision of single judge – power to grant bail where no valid notice of appeal – referral of review to a judge of the Supreme Court

Contract - travel agent - application for on demand guarantee - declaration that no reason to doubt that applicant will be able to comply with its obligations - and that declarant not aware of any circumstances not disclosed which might influence acceptance of the risk - agreement to compensate for "breach" of declaration - declarant knew but did not disclose applicant's difficult financial circumstances and fact that an employee managing a branch office had been convicted of fraudulent misappropriation - construction of declaration and whether breached - in particular, whether it was necessary that declarant knew that undisclosed circumstances might influence acceptance of the risk. D

TAXATION – Three directors’ parallel liability in circumstances where company’s tax liability entirely cancelled by Deed of Company Arrangement – entry of judgment against the directors – whether enforcement of judgment could be resisted on basis of unfairness.

CRIMINAL LAW – Appeal and New Trial – Verdict unsupportable having regard to the evidence.

BAIL REVIEW – whether review was by way of hearing de novo – whether error must be demonstrated in the exercise of a discretionary power to grant bail – whether deterioration of mental health and involvement in complex civil litigation constitute "special or exceptional circusmstances" under s 30AA of the Bail Act 1978

COSTS [553]- Costs follow the event- Plaintiff substantially successful at expedited hearing- However substantial part of case abandoned just prior to trial- Interlocutory hearing obviated by court fixing early hearing date- Evidence prepared for interlocutory hearing not relevant to expedited hearing but relevant to cross claim- Cross claim not heard at expedited hearing- Costs of interlocutory hearing and costs of cross claim and all future costs to be reserved- Otherwise defendants to pay 80% of plaintiff's costs.

RESTRAINT OF TRADE – employer and employee – restrictive covenants going wider than needed for legitimate protection of employer’s interests – no particular threat of breach established – application of Restraints of Trade Act 1976 – construction of covenant against soliciting clients – covenant not to work for a competitor – interests capable of supporting such a covenant – how reasonableness of length of restraint determined – INJUNCTIONS – interlocutory injunctions – where interlocutory hearing will for practical purposes decide the rights of the parties – factors relevant to balance of convenience – TORTS – interference with contractual relations

TRIBUNALS - CONSUMER TRADER AND TENANCY TRIBUNAL - EJECTMENT OF TENANT FROM DWELLING - LONG RUNNING DISPUTE - EXPRESS RETENTION OF RENT PAYMENT - EX PARTE HEARING - FAILURE OF LANDLORD TO REVEAL ALL RELEVANT FACTS AND CIRCUMSTANCES - PROCEDURAL FAIRNESS DENIED - RELIEF IN NATURE OF CERTIORARI GRANTED

Appeal from decision of CTTT - alleged failure to give reasons and breach of statutory provisions - alleged denial of procedural fairness (an order that a dog be removed from a residential park) - alleged invalidity of pet rules - summons brought out of time

CORPORATIONS – Winding-up – Statutory demand – Application to set aside statutory demand – Defendant served plaintiff with document purporting to be statutory demand – Document was a photocopy – Supporting affidavit was also a photocopy – Whether document was valid statutory demand – Meaning of “statutory demand” – ss 9 and 459E Corporations Act 2001 (Cth) considered – Held that document was valid statutory demand – Application dismissed.

Family law. Application for adjustment of parties' property under s20 of Property Relationships Act 1984 (NSW). No matter of principle.

UNFAIR TRIAL – conduct of co-accused – Appellant and co-accused tried together – whether conduct by co-accused’s counsel inflammatory, to the extent of being improper or unfair to the Appellant – refusal to admit evidence going to the credit of co-accused – failure to warn jury as to unreliability of the co-accused’s evidence against the Appellant – no direction requested under Evidence Act 1995 (NSW), s 165 – failure to give directions with respect to evidence of flight - SENTENCE – “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – balance of period of the sentence not exceeding one-third of the non-parole period

PROCEDURE – COSTS – costs appeal – multiple claims and cross-claims arising from substantive proceedings – principles – scope of primary judge’s discretion as to costs award – basis for order concerning indemnity costs – costs of appeal where represented by both senior and junior counsel

ADMINISTRATIVE LAW - claim for prerogative and declaratory relief - claims assessment system under Motor Accident Compensation Act 1999 - relationships between claims assessment and medical assessment provisions in Act - assessment conference before assessor - insurer admits liability - claim for interest deferred by assessor at suggestion of insurer - assessor purports to issue s.94 certificate of damages and statement of reasons without hearing and determining claim for interest - - whether denial of procedural fairness and jurisdictional error - claimant applies to assessor to consider claim for interest and issue s.94 certificate and reasons - whether assessor functus officio - power of Principal Claims Assessor to rectify "obvious error" under s.94(6) - meaning of "obvious error" - status of guidelines issued under Act - insurer seeks further medical assessment of claimant under s.62 - whether assessor may complete exercise of jurisdiction and issue s.94 certificate - if so, whether assessor bound to have regard to factual circumstances at time when certificate and reasons issue - assessor issues s.94 certificate and reasons - claimant accepts damages under s.95(2)(b) as contained in s.94 certificate and reasons - claim for prerogative and declaratory relief by insurer contending that s.94 certificate and reasons are null and void - no basis for relief established - relief to be refused, in any event, on discretionary grounds

Application to set aside default judgment - appeal from review by a Magistrate - power to set aside - unfettered discretion - to be exercised having regard to the particular facts of the case and the dictates of justice - guidance provided by other authority - default, delay and explanation - prejudice - overriding purpose - leave and onus.

Appeal from Magistrate - charge of high range prescribed concentration of alcohol - what constitutes a question of law - meaning of expression "at that person's place of abode"

Review of decision of Registrar concerning entitlement to discovery - attempted reliance at review upon evidence not before the Registrar - failure to satisfy the Court that an order should be made - decisions on practice and procedure

CORPORATIONS - winding up - application by liquidator for order granting advantage to one creditor in winding up - creditor granted indemnity in respect of one recovery proceeding but not another - indemnity granted only after substantial settlement offer had been made - order would diminish funds available for priority creditors - relevant considerations

Building and construction - Building Construction Industry Security of Payment Act 1999 - Proper construction of s 25 (4) of Act - Meaning of words "commences proceedings to have the judgment set aside" - Whether a respondent to an application under the Act against whom a judgment debt following a determination has been entered, may albeit eschewing making an application to have the judgment set aside, seek any and if so what form of declaratory and associated relief challenging the validity of the determination.

PROCEDURE – costs – Calderbank letter – effect of an imprecise offer – effect of an offer to settle if offeree pays a stipulated amount in costs – effect of an offer which if accepted might not completely disentangle offeree from the proceedings – PROCEDURE – interest on damages – principles for calculating

Costs - assessment by costs assessor - review by costs review panel - requirement to give reasons for determination - statements that amounts of profit costs were fair and reasonable - whether adequate reasons - dispute whether cross-claim costs within order - whether proper view taken of order - whether adequate reasons for inclusion of cross-claim costs in assessment - consideration of requirement of reasons - must be sufficient to enable meaningful exercise of right of appeal.

COMMERCIAL CREDIT SUPPLY AGREEMENT: – construction of agreement – whether signing of agreement attracted personal liability – charge over property – appointment of trustees for sale – liquidators not disqualified from appointment as trustees

SUCCESSION – EXECUTORS AND ADMINISTRATORS – power to compromise litigation – SUCCESSION – EXECUTORS AND ADMINISTRATORS – administration – partial distribution – when justified – SUCCESSION – EXECUTORS AND ADMINISTRATORS – whether obliged to obtain a release from administration duties – SUCCESSION – EXECUTORS AND ADMINISTRATORS – notice barring claims under section 93 Wills Probate and Administration Act 1898 – claims to which such a notice can apply – principles for construing such a notice – power of Public Trustee to bar claims under section 34B Public Trustee Act without application to court – POLICE – rights powers and duties – power to retain evidence relating to a criminal trial or appeal – circumstances in which power arises – time for which evidence may be retained – STATUTES – ACTS OF PARLIAMENT – interpretation taking account of practical effects of a statute – STATUTES – particular statutes – Victims Rights Act 1966 – no effect in litigation for a civil cause of action

Family Provision. Application under Family Provision Act 1982 by son. Orders made. No matter of principle.

PROCEDURE [90] – Supreme Court procedure – Procedure under rules of court – Parties – Representative orders – Whether necessary.

REAL PROPERTY [437] - Restrictive covenants - Other matters - Injunctions - Whether evidence sufficient to support claim for injunction.

TRUSTS: - constructive trust – property settlement on dissolution of marriage – breach of agreement – fraudulent disposal of land – proceeds of sale held in fiduciary capacity – limitation of action – postponement in case of fraud – what constitutes fraud within the limitation act – continuation of fraud – equitable compensation for breach of fiduciary obligation based on loss – not affected by limitation period – compensation assessed by value of assets at the date of restitution

Criminal law - sentencing - manslaughter - unlawful and dangerous act - offender pleaded guilty to manslaughter - domestic situation - special circumstances - suspended sentence under s9 Crimes (Sentencing Procedure) Act 1999.

CONVEYANCING - joint tenancy and tenancy in common - appointment of trustees for sale under section 66G Conveyancing Act 1919 - one trustee for sale becomes incapable of continuing to act - appointment of substitute trustee for sale - effects of one co-owner seeking to frustrate orders for appointment of trustees for sale

Appeal from decision of Associate Justice on separate determination of issues - bushfires

Alleged failure to supply goods of merchantable quality - attempted change of position in appeal to that taken at trial - allegation of no evidence to support findings - allegation of erroneous admission of evidence

CORPORATIONS - winding up - application on grounds of insolvency - appearance filed by supporting creditor - plaintiff's debt paid - application by supporting creditor to be substituted as applicant for winding up order - supporting creditor's debt then paid - winding up application not pressed - application dismissed - whether supporting creditor should have costs order against defendant - provision for costs in fixed sum

CORPORATIONS - winding up - voluntary winding up - liquidators' final return lodged with ASIC - unknown asset later discovered - court extends date for deregistration - whether further final meeting should be convened by liquidators in due course on basis that affairs had not been fully wound up when earlier meeting convened

Industrial accident - building site - claim against employer - negligence and breaches of Construction Safety Act 1912 - whether plaintiff had residual earning capacity - damages for economic loss and loss of earning capacity.

PROCEDURE - application by plaintiff to amend - whether amendment futile - where proceedings have been on foot for seven years

CORPORATIONS - voluntary winding up - two contributories - questions relevant to adjustment of contributories' rights litigated - judgment reserved - one contributory says liquidator should make interim distribution, other of contrary view - first files interlocutory process with a view to compelling interim distribution - liquidator decides to make distribution - interlocutory process dismissed - what costs orders should be made

CORPORATIONS - winding up - rights of creditors and contributories - where affairs of three companies intertwined and separate positions not readily ascertainable - all creditors of every company vote in favour of pooling proposal - sole member of only company likely to yield surplus also assents to pooling proposal - such proposal sufficiently articulated and explained - no resort to statutory mechanisms - unanimous assent sufficient to warrant direction that liquidator justified in proceeding on pooled basis

PROCEDURE - application for separate and preliminary determination of certain questions - no matter of principle