Cases and authorities

CORPORATIONS - winding up by the court - application for authority to make distribution of surplus asset in specie - court's power to give directions to liquidator - deficiencies in application - costs of applicant and liquidator

CORPORATIONS - supervision regulation and correction - registers and records kept by ASIC - lodgment of particulars of winding up application - lodgment of particulars of dismissal of winding up application - whether court may order expungement from ASIC records - whether lodgment results in entry in any register kept by ASIC - whether court's power to direct rectification of register kept by ASIC permits order directing removal of material regularly entered according to law - PROCEDURE - costs - application for winding up in insolvency on basis of unsatisfied statutory demand - debt paid after filing and service of winding up application - application dismissed by consent - appropriate costs order

CONTRACTS – Formation – Plaintiff and defendant in negotiations concerning contracts for provision of cartage services – Agent of defendant allegedly made representations suggesting contracts had been successfully negotiated – Whether serious question to be tried that parties had concluded binding contracts – Whether serious question to be tried that parties intended to be bound irrespective of absence of writing - ESTOPPEL – Plaintiff and defendant in negotiations concerning contracts for provision of cartage services – Agent of defendant allegedly made representations suggesting contracts had been successfully negotiated – Whether serious question to be tried that defendant estopped from denying that contracts had been made or would be entered into – Plaintiff’s claim for interlocutory injunction refused.

EX PARTE INJUNCTION – ASSET PRESERVATION ORDER – whether plaintiff had made frank disclosure of disputed fact in seeking ex parte asset preservation orders – whether ground for asset preservation orders made out.

ABORIGINALS - Land Rights - Local Aboriginal Land Council transfers land to a trustee of a unit trust in which it holds the only units with rights to income and capital - Trustee enters into joint venture agreement to develop the land - Trustee and joint venture partner enter into loan agreement - Trustee mortgages land to lender - Same issues as in Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856 and in - Koompahtoo Local Aboriginal Land Council v CKT Developments Pty Ltd & Anor [2006] NSWSC 862

COSTS – offers of settlement – first offer: whether reasonable for plaintiff to reject the offer – second offer: whether Supreme Court Rules (1970) Part 52A, r 22(6) as in force then applied where judgment is entered for the defendant – third offer: whether Uniform Civil Procedure Rule r 42.14 applied – whether offer involved a significant level of compromise - RESTITUTION – interest rate – part judgment paid as condition of stay – successful appeal – restitution ordered – whether interest should be calculated as prescribed by the Uniform Civil Procedure Rules or as ‘the real cost of money’ assessed as the rate for bonds issued by the NSW Treasury Corporation

BUILDING AND CONSTRUCTION – progress payments - Building and Construction Industry Security of Payment Act 1999 (NSW) s 13 & 15 – whether bona fide belief in entitlements claimed required for valid payment claim - PRACTICE AND PROCEDURE – whether a breach of s 52 of Trade Practices Act 1974 (Cth) can be relied on as a defence – whether Building Payment Act s 15(4)(b)(ii) precluded such defence - CONSTITUTIONAL LAW – section 109 inconsistency – whether Building Payment Act s 15(4)(b) invalid to the extent that it prevents the raising of a cross claim in reliance on s 52 of the Trade Practices Act

Leave to unrepresented litigant to issue subpoenas - appeal from dismissal of defamation proceedings - desire to rely on further evidence on appeal - application for leave to issue subpoenas - Registrar refused leave - most subpoenas too wide and fishing expedition - as to all little prospect of use of subpoenaed material in appeal - leave correctly refused.

COSTS – offers of compromise – appeal successful – issue of damages remitted to District Court – offers of compromise made during trial and appeal – whether Uniform Civil Procedure Rules 2005, r 20.26 applied – whether there should be a costs order for the appeal prior to the assessment of damages where offers have been made - COSTS – Bullock Order – Workers Compensation Act 1987, s 151H - appellant did not proceed against employer – concession that appellant could not establish the minimum 15% permanent impairment only forthcoming on appeal – whether reasonable for respondent to pursue cross-claim against employer in the absence of such concession – whether successful appellant should pay costs incurred by unsuccessful respondents in unsuccessfully joining the employer

ABORIGINALS - Land Rights - Local Aboriginal Land Council in joint venture to develop its land - Council and joint venture partner enter into loan agreement - Council mortgages land to lender - Same issues as in Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856 except as follows - No evidence of Council resolution authorising execution of mortgage - Whether chairman had ostensible authority to bind Council - Whether Council ratified the mortgage - Secretary's certificate under the Aboriginal Land Rights Act 1983, s 40D(2) had typographical error - Whether a proper certificate - Second certificate correcting error issued - Whether a proper certificate

MENTAL HEALTH - incapacity to manage affairs - management of judgment moneys in professional negligence action by incapable person- trust approved by court appointing mother of plaintiff and trustee company as trustees - trust including beneficiaries other than common law plaintiff - order made for immediate payment to mother of part judgment sum prior to constitution of trust for purpose of purchasing home in name of mother as trustee for the son - mother mortgaged house and applied proceeds for benefit of third party in breach of trust - manager appointed so that action could be considered on behalf of beneficiary against trustee - consideration of problems where such trust approved - necessity for the sole trust beneficiary to be person to whom damages are awarded - statement that problems would not have arisen if management order under Protected Estates Act 1983 made in first place

ABORIGINALS - Land Rights - Local Aboriginal Land Council in joint venture to develop its land - Council transfers land to a trustee of a unit trust in which it holds the only units with rights to income and capital - Trustee and joint venture partner enter into loan agreement - Trustee mortgages land to lender - Trustee and joint venture partner in default - Lender obtains judgment against both - Council seeks recovery of land - Disposals of land not in accordance with the Aboriginal Land Rights Act 1983 are void under s 40(2) - Transfer did not comply - A certificate issued by the secretary of a Local Aboriginal Land Council that disposal of land did not contravene s 40D is conclusive evidence in favour of any person except a person who had notice of the contravention under s 40D(2) - Certificate issued - Principles of construction of such a certificate - Whether a proper certificate under s 40D(2) - Whether notice of contravention is actual or constructive - Whether mortgagee had notice - Whether Council had a beneficial interest in the land as unit holder - Whether that interest mortgaged in contravention of the Act - Whether the certificate covered such a mortgage - Whether transfer and mortgage a composite transaction - Whether mortgage element a dealing otherwise with the land in contravention of the Act - Whether the certificate covered such dealing - Whether trustee borrowed from mortgagee as agent for the Council as disclosed principal - Whether caveats by the Council and the Registrar-General should be withdrawn - Whether Council entitled to indemnity from joint venture partner on grounds of unjust enrichment

Criminal law - Sentence - Non parole period - Parity - Relevance of bare percentage calculation of non parole period.

CRIMINAL LAW - APPEAL - SENTENCE - Plea of guilty to 1 count of dangerous driving occasioning death (s52A(1)(c) Crimes Act), 3 counts of dangerous driving occasioning grievous bodily harm (s52A(3)(c) Crimes Act) and 1 count of make accusation intending another person to be the subject of an investigation, knowing that person to be innocent of the offence alleged (s314,Crimes Act) - Whether sentencing judge erred by sentencing on basis of facts which gave rise to a more serious offence - Whether sentencing judge erred in failing to take into account the utilitarian value of plea of guilty - Objective criminality of s 314 offence - Whether lesser sentence warranted where sentencing judge failed to accumulate sentences on dangerous driving counts - s7(1A) Criminal Appeal Act discussed - SENTENCING - failure of judge formally to impose sentence - s43 Crimes (Sentencing Procedure) Act - LEGAL PRACTITIONERS - Obligation of Crown Prosecutor to assist court to avoid appealable error.

Criminal law - Sentence - Crown appeal - Home invasion - Non parole period manifestly inadequate.

Criminal law - Sentence - Malicious wounding with intent to do grievous bodily harm - Standard non parole period - Delay - Extra curial punishment - Sentence not manifestly excessive.

Sentence - import traffickable quantity of heroin - whether exceptional hardship to applicant's family - whether manifestly excessive.

Criminal law - Sentence - Cultivation of cannabis plants - Large commercial quantity - Parity.

NEGLIGENCE – whether trial judge erred in finding security guards acted negligently – no basis for finding – miscarriage of justice - NEGLIGENCE – whether claimants should have used plastic glasses – appropriate measures taken to meet duty – to require plastic glasses imposes an unreasonable standard of care in all the circumstances – miscarriage of justice

Contract - Construction - Principles - Whether provision for automatic rescission on non-satisfaction of conditions self executing or requires the giving of notice - Whether awareness of circumstances entitling party to terminate contract - Whether action adverse to other party established - Conventional estoppel - Whether distinct from equitable estoppel - Whether reliance by and detriment to party seeking to raise estoppel established - Whether the party against whom estoppel asserted played such a part in adoption of assumption that it would be unjust if it were left free to ignore it - Election - Proceedings before the Court on remitter from Court of Appeal for the purpose of the Court making factual findings necessary to determine whether defendant had proven its estoppel and election defences - Proceedings also remitted in order for findings to be made in respect of liability of the guarantors - Parties elect to amend pleadings to embrace events taking place following first instance judgment - Whether plaintiff entitled to litigate an issue which could have been but was not litigated at first instance

ADMINISTRATIVE LAW - JUDICIAL REVIEW - error of law on the face of the record - jurisdictional error - mandamus - certiorari - statutory relief - decision of the Parole Authority - determination to release on parole - serious offender - exercise of power under the Crimes (Administration of Sentences) Act 1999 - legislation amended in 2004 - interpretation of transitional provisions - whether the legislation applied as amended - meaning of “pending” - meaning of “commenced consideration” - process for considering release on parole by the Parole Authority - steps taken and reports received in administrative process - reasons stated for determination - whether Authority considered all relevant matters - safety of the community - need to maintain public confidence in the administration of justice - meaning of “public confidence” - nature and circumstances of the offence - likely effect on victim’s family of the offender being released on parole - whether Authority considered relevant recommendations, observations and comments made by the sentencing court - meaning of “sentencing court” where a life sentence was redetermined - timing of reconsideration of decision not to grant parole - whether timing complied with statutory scheme - power to reconsider parole if circumstances of manifest injustice - whether Authority considered false or misleading information

Criminal Law - Sentencing - Fraud offences committed while on bail and parole for similar offences - relevance of pathological gambling addiction - whether sentences manifestly excessive.

WORKERS COMPENSATION – Commission’s jurisdiction to determine employer’s liability to pay – Indemnity Scheme under which WorkCover has discretion to pay or decline to pay compensation to employee whose employer is uninsured for its liability under the Act – Distinction between schemes under s144 and s145 of Workers Compensation Act – was it a jurisdictional requirement for Commission to hear an employer objection opposing indemnification of WorkCover where the notice required by s145(4) was not given.

CRIMINAL LAW - Appeal - Appeals from magistrates - Appeal against conviction - Whether necessary for error by magistrate to be shown - Application of principles of Fox v. Percy.

PRACTICE & PROCEDURE – Judgments and orders – Setting aside – Plaintiffs made application to set aside order of Court entering judgment for defendant in proceedings 2407/04 – Application made because of contentions of defendant in related proceedings (4666/03) – Defendant contended that entry of judgment in proceedings 2407/04 afforded it defence in proceedings 4666/03 based on principles of res judicata, issue estoppel or Anshun estoppel – Jurisdiction of Court to set aside earlier judgment and orders – Where asserted consequences of earlier judgment does not reflect intention of Court – Inherent jurisdiction – Statutory jurisdiction under r 36.17 Uniform Civil Procedure Rules 2005 (NSW) (“slip rule”) – Whether jurisdiction to set aside confined to ancillary or consequential orders – Whether denial of substance of defendant’s estoppel-type defences precludes reliance by plaintiffs on slip rule – Whether jurisdiction to set aside available simply because the consequences of the judgment are contrary to judge’s intention – Where plaintiffs claim alternative forms of relief in notice of motion – Whether failure by plaintiffs to precisely identify order which should be made to correct error precludes reliance by plaintiffs on slip rule – Whether plaintiffs’ proposals to correct error relate to matter which was in issue or incidental to matter in issue – Whether Court should exercise discretion to set aside judgment – Order of Court entering judgment for defendant set aside – Declarations and stay ordered in lieu thereof.

Strike out paragrapah of the statement of claim - forseeability of psychiatric harm

Strike out paragraph of statement of claim - forseeability of psychiatric harm

Appeal decision of Local Court Magistrate - deed

GAMING MACHINES ACT – LEASE – REVERSION – INTERLOCUTORY INJUNCTION – application by lessor for interlocutory injunction restraining sale by lessee of poker machine entitlements – whether lessor shows serious question to be tried that it has present reversionary interest in entitlements under doctrine of accretion – balance of convenience – whether damages adequate remedy.

CRIMINAL LAW - appeal against conviction - aggravated use of offensive weapon to prevent lawful apprehension contrary to s.33B(2) Crimes Act 1900 - whether verdict cannot be supported having regard to evidence - appeal against conviction dismissed - application for leave to appeal against sentence - whether use of offensive weapon erroneously taken into account as aggravating factor under s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999 - whether prior criminal record erroneously taken into account as aggravating factor under s.21A(2)(d) - whether there was failure to make due allowance for assistance to authorities - whether there was failure to take account of extra curial punishment (gun shot wound to the leg sustained during commission of offence) - significance of general deterrence in sentencing for s.33B offence - sentence appeal dismissed

CRIMINAL LAW – Appeal and new trial – Appeals from magistrates – Appeal against conviction – Rehearing on transcript of evidence – Fresh evidence – Calling of witnesses – Where judge ordered full de novo appeal – No consideration of special or substantial reasons – Witnesses to be individually considered in light of special or substantial reasons – Crimes (Local Courts Appeal and Review) Act 2001, ss 18 and 19. (D)

CRIMINAL LAW – appeal against conviction – aggravated sexual assault and sexual assault – whether error in trial judge’s directions to jury - JUDGE – direction to jury on use of appellants lie as giving rise to consciousness of guilt – whether lie relevant to particular offence only – lie relevant to each offence – no error in jury direction - JUDGE – direction to jury on joint criminal enterprise – whether trial judge erred in failing to direct jury as to doctrine of extended joint criminal enterprise – no error - SENTENCING – appeal against sentence – Court must be of opinion that some other sentence is warranted in law and should have been passed – sentences within appropriate discretionary range – no other sentence warranted

CONTRACTS – Illegal and Void Contracts – Champerty – Whether third party had legitimate interest in funding proceedings by virtue of enforceable rights under the agreement.

TAXES AND DUTIES – statutory interpretation – Parking Space Levy Act 1992 (NSW): ss 9, 13, 15 – whether levy was payable for a parking space which did not exist on 1 July of the year in which liability was said to arise

Costs - s 98 Civil Procedure Act - Rule 42.1 UCP Rules - whether costs follow the event - successful party on hearing of cross-claims.

CONVEYANCING [233]- Mortgages and charges- Unregistered mortgage agreements for security of loan- Agreements did not specify what property was to be mortgaged- Ineffective- Mortgage gave mortgagee the right to appoint a receiver- In all the circumstances the relevant agreement is a floating charge. CORPORATIONS [73]- Floating or fixed charge- Differentiation.

Criminal proceedings - Sentence - Terrorism offences - need for deterrent sentence of some length to reflect seriousness of offences

Appeal decision of Local Court Magistrate - cracks in concrete driveway

Practice and Procedure - Appeal from Magistrate - Discretion to amend Court Attendance Notice to correct spelling of name of party - Injustice, meaning of - Broad considerations - Magistrate impermissibly confining or excluding relevant factors

Administrative law - decision by Assessor and Principal Claims Assessor not to exempt claim from assessment by Claims Assessment and Resolution Service (CARS) - whether the guidelines under the Motor Accident Compensation Act 1999 have been complied with - apprehension of bias - power to give direction under s100 of Act.

Life sentence redetermination - heinous offence - considerations of dangerousness

SUCCESSION - family provision - claims by son aged 11, former de facto wife and daughter of former de facto wife - whether there are factors warranting application by the second and third - where residuary estate divided equally among applicant son and the two middle-aged and estranged children from an earlier marriage subject to attaining age 28 - award in favour of son aged 11

DEFAMATION – publication – radio broadcast – “strike in” application – principles – definition of whole broadcast or publication – ordinary reasonable listener – extent of necessary inquiry into conduct – DEFAMATION – privilege – statutory qualified privilege – common law qualified privilege

PROCEDURE - Stay of proceedings - Application for orders working out order for specific performance - Fresh proceedings by other party on basis a new case raised - Principles for stay of proceedings - Principles for working out court orders - Each party relying upon events that occurred after judgment - Whether fresh proceedings raised a new case or new issues that could be raised in defence of working out orders

COSTS [566]- First defendant company had insufficient money to pay plaintiff's costs- Whether plaintiff's costs and plaintiff's costs paid to third defendant be paid by defendant voluntary liquidator personally- Special circumstances- Voluntary liquidator not an officer of the court- Liquidator involved in the first defendant's scheme- Liquidator paid himself in priority to the costs orders to be paid by the first defendant- Liquidator acted unreasonably and is to pay costs personally.

EVIDENCE - evidence in reply - splitting the case - civil penalty proceeding - whether plaintiff should be permitted to adduce evidence in reply notified to defendants after it closed its case in chief but before they opened their case in defence - whether defendants' evidence under reply reasonably foreseeable during plaintiff's case in chief

DAMAGES: - Voyager/Melbourne collision - psychological injury - economic loss - whether plaintiff's earning capacity in civilian life affected