Cases and authorities

CONTEMPT – charge dismissed – right of appeal – Supreme Court Act 1970 (NSW), s101(5) and (6) – motion that certain persons show cause as to why they should not be held in contempt of court struck out –charge of contempt criminal in nature – whether striking out of motion means that the persons were ‘found not to have committed contempt’

PRACTICE & PROCEDURE: - Action for damages for personal injury - whether judgment should be entered inconsistent with the jury's verdict - assessment of award for funds management - whether order for indemnity costs appropriate after offer of compromise - stay of proceedings

PROTECTIVE JURISDICTION: - Defendant awarded substantial damages in Common Law proceedings - brain damaged - appointment of Protective Commissioner to manage his estate

Succession. Family Provision. Claim by elderly widower. Marriage of almost eighteen years. Financial and material circumstances of the Plaintiff. Whether Plaintiff has been left without adequate provision for his proper maintenance. Need of Plaintiff for accommodation. Competing claims of Deceased's children (who are chief objects of her testamentary beneficence).

CORPORATIONS - winding up - application to set aside statutory demands - demands satisfied by payment on evening before hearing - appropriate disposition of proceedings - PROCEDURE - costs - where no determination on the merits - whether plaintiffs' conduct unreasonable so as to warrant costs order in favour of defendant

EVIDENCE – unfair prejudice – EVIDENCE – business records

CAVEATS – whether caveatable interest created by Credit Agreement – whether caveat bad in form – whether leave should be granted to lodge further caveat under s.74O(2) of the Real Property Act.

CRIMINAL LAW – Appeal against conviction – conspiracy to import cocaine – record of interview – whether judge failed to direct the jury as to consciousness of guilt – whether relevance of record of interview was merely to strengthen an otherwise strong Crown case – application of Rule 4 – whether tactical reasons for not requesting a direction on consciousness of guilt – conscious and informed decision not to seek a redirection – whether the verdict of the jury was unreasonable – meaning of hypothesis consistent with innocence – whether on the whole of the evidence it was open to the jury to conclude that the appellant knew of the planned importation – evidence of recorded conversations – whether an inference available on the knowledge of the accused

CORPORATIONS - powers - whether s 125(1) cures invalidity arising from failure to comply with "further requirements" for removing directors and repealing constitution - whether "further requirements" contravene principle that a right to vote cannot be given to non-members

CORPORATIONS - accounts and audit - lodgment of financial reports - ASIC Class Order 98/1418 - application for orders extending time retrospectively to remedy late lodgments - whether jurisdiction available where time period prescribed by class order

REAL PROPERTY – Caveats – Application to extend caveats – Plaintiff claimed charge over defendants’ land pursuant to charge provisions in letter – Letter of offer gave plaintiff total discretion as to performance of its obligations under putative contract – Whether letter provided valid consideration for charge provisions – Whether acts of part performance on part of plaintiff constituted valid consideration – “Unilateral” contracts – Where valid consideration found – Whether any amount secured by charge – Insufficient evidence that any amount secured – Application to extend caveats dismissed.

ENVIRONMENTAL PLANNING – local environment plan – zoning – purpose of zone objectives – application of the State Environmental Planning Policy (Seniors Living) 2004 – identification of land by description – identification of land for purposes of the State Environmental Planning Policy (Seniors Living) 2004 - WORDS AND PHRASES – “identification” – “description”

CORPORATIONS - directors - election of directors - certain directors required to retire at annual general meeting - procedures for election - whether election occurs when ballot (or default procedure) completed or when vacancy to be filled arises by retirement - deadline for nominations - fixing by board - whether board has power to fix second or subsequent deadline - turns on particular provisions not commonly encountered in company constitutions - no question of principle

CRIMINAL LAW: murder - trial by judge alone - accused killed his father - mental illness the only issue

EVIDENCE – hearsay evidence of a person’s state of mind – whether able to be given by a file note which is not itself a business record – EVIDENCE – opinion evidence – whether opinion evidence able to be received under section 78 Evidence Act 1995 when contained in a file note which is not a business record

CHARITIES [58] – Charitable gifts and trusts – In general – Construction – Ascertainment of objects – Particular words and phrases – “Painted” – Trustees to give prize for best portrait painted by specified people - EQUITY [134] – Trusts and trustees – Powers, duties, rights and liabilities of trustees – General matters – Rules governing exercise of discretion – Where absolute discretion - How far court will interfere.

CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order for cancellation of certificate of title and issue of new certificate – Declaration that co-purchaser with plaintiff who was not intended to take beneficially holds his interest in land in trust for plaintiff – Circumstances in which vesting of property in plaintiff may be effected by issue of new certificate of title.

CORPORATIONS - winding up - standing - plaintiff is transferee under unregistered transfer from executor of deceased shareholder - whether "contributory" as defined by s.9 - whether within concluding sentence of s.232 as regards claim based on Part 2F.1 - whether s.232 standing can be relied upon where claims advanced principally under s.461 - whether plaintiff "creditor" - admission by defendant company that money owed by it to him - assertion that he and another jointly indebted to company in a greater sum - assuming such indebtedness to be joint, whether set-off deprives plaintiff of creditor status - application for appointment of provisional liquidator - whether cogent case for winding up shown - whether assets in jeopardy - balance of convenience considered - whether position pending trial may be secured by orders or undertakings

Police search under authority of search warrant - claimed trespass because warrant invalid - submitted invalid because application for warrant did not describe a particular offence with which the firearms to be searched for were connected - described offence under Firearms Act 1989 - repealed and replaced by Firearms Act 1996 - similar offence under each statute - whether within savings clause in 1996 Act - whether substantial compliance with prescribed form - whether affected substance of warrant in a material particular - held went to belief of reasonable grounds asserted by applicant and warrant invalid - submitted invalid because appellant did not have reasonable grounds for asserted belief - held had reasonable grounds - submitted invalid because warrant failed to state offence in relation to which search was authorised - required to be in prescribed form - form did not require statement of offence - single judge decisions that nonetheless invalid - decisions incorrect - held not invalid.

PRACTICE - APPEAL - Security for costs - Whether corporation challenging adjudication determination under Building & Construction Industry Security of Payment Act 1999 is in substance a plaintiff - Whether special circumstances need to be shown - Whether special circumstances shown.

Dismiss plaintiffs' statement of claim as against 3rd, 4th, 5th and 6th defendants - agency

CORPORATIONS – ASSET FREEZING ORDER – INVESTIGATIONS – ex parte orders made for surrender of passport and freezing of assets in aid of ASIC’s investigations – investigations at early stage – no allegation of wrongdoing yet made – whether orders should be continued to ensure investigation not frustrated – whether affidavit disclosing assets should be required.

CORPORATIONS - non-profit - winding up - distribution of surplus assets - requirement of determination by members

security for costs

CORPORATIONS - winding up - creditor's statutory demand - application for order setting aside - affidavit in support of application contains bald assertion of genuine dispute - affidavit fails to give any evidence whatsoever of indicating nature of and basis for genuine dispute - PROCEDURE - costs - indemnity costs - where plaintiff persists with unsustainable claim after defects clearly drawn to its attention

CORPORATIONS - winding up - creditor's statutory demand - set aside by consent - contest on costs - PROCEDURE - costs - where no determination on the merits - whether supporting affidavit sufficiently delineated case - where plaintiff initiated proceedings without intervention of solicitor but was represented by counsel at hearing - whether defendant entitled to costs

Succession. Family Provision. Claim by adult stepson. Financial and material circumstances of Plaintiff. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances. Asserted needs of Plaintiff. Whether Plaintiff has been left without adequate provision for his maintenance. Plaintiff must establish his claim upon its own merits.

Application for extension of time under Limitation Act 1969 - Naval rating in Melbourne/Voyager - no actual prejudice - suggestion that if extended, that right to damages postponed - costs - whether defendant unreasonable.

ADOPTION - Application by child's stepfather for adoption of child - Child's mother refuses to apply for an order for adoption of her own child - Plaintiff required to provide evidence that he and child's mother married and living together before adoption order made - Section 95 Adoption Act 2000 (NSW) considered.

LIMITATION OF ACTION - extension of time - whether plaintiff aware of connection between personal injury and defendants' act or omission - whether jurisdiction to extend time enlivened - whether prejudice to defendants because unable to have a reasonably fair trial - whether other discretionary considerations dictate refusal of leave

CHILD WELFARE - wardship application by Director General of the Department of Community Services

APPEAL - civil proceedings in Local Court - appeals under s.69 Local Courts (Civil Claims) Act 1970 - judgment for breach of contract arising from non-payment of agistment fees for horses - dismissal of cross claim alleging breach of duty by bailee for reward to take reasonable care of horse - whether error of law or error of mixed law and fact established - prerogative and declaratory relief arising from orders of Local Court under Uncollected Goods Act 1995 allowing sale of horse at auction and requiring payment of charges - whether denial of procedural fairness

Appeal from Local Court - whether Magistrate erred in law in finding that false statements were not "evidence" for purposes of s 317(b) Crimes Act - statutory interpretation of Part 7, Crimes Act - s 317 the statutory equivalent of attempt to pervert the course of justice.

Charge of murder - Crown relies on fact that deceased blackmailed accused as providing motive for his death - objection to tender of evidence concerning subject matter of blackmail

Appeal Local Court Magistrate - Auction - Misrepresentations - Chimera Roadster

APPEAL AND NEW TRIAL - offence under s.97(1) Crimes Act 1900 - sentenced following plea of guilty in District Court - evidence on appeal raising question concerning fitness to be tried - test in R v RTI (2003) 58 NSWLR 438 satisfied

CRIMINAL LAW - appeal against conviction - aggravated robbery - Crown case based upon circumstantial evidence - location of appellant's fingerprints at crime scene and on getaway car - victim identified another person and excluded appellant in photographic identification - erroneous direction concerning factual findings favourable to appellant - whether miscarriage of justice - whether verdict unreasonable

Company articles - membership ceased if member "becomes bankrupt" - member became bankrupt - bankruptcy then annulled on entry into arrangement with creditors - whether annulment meant had not ceased to be a member - consideration of effect of annulment in bankruptcy law - annulment retrospective - reversed fact of becoming bankrupt - but on construction of articles, membership ceased and was not restored upon annulment. D

COSTS – Indemnity Principle – costs orders made against Appellant – costs agreement between Respondent and his lawyers that no obligation to pay until successful recovery of costs from Appellant – whether Appellant liable to costs order if Respondent had incurred no lability to pay his lawyers - COSTS ASSESSOR – power of – costs assessor assessed bills – whether costs assessor had power to determine the terms and validity of costs agreement – whether judge in Common Law Division had power to hear appeal from costs assessor’s determination

CIVIL LAW - practice and procedure - applications to set aside notices to produce - a document or thing relevant to a fact in issue

PROCEDURE - costs - director of company purports to commence proceedings by signing originating process - no solicitor - whether proceedings maintainable - whether the director may be ordered to pay costs

Building and Construction - Payment Schedule - Whether payment schedule was provided by respondent to claimant - Question of fact - Contractual requirement that Principals representative be appointed - Obligation of Principals representative when exercising functions prescribed by Contract capable of being termed 'fiduciary duties' - Challenge to activities [of indirect assistant of Principals representative] in physically assembling folders of documents served as part of payment schedule - Activities challenged held to fall outside functions prescribed by the Contract to be carried out by Principals representative

RECTIFICATION – Rectification of a deed (the “Entitlement Deed”). - CORPORATIONS – Whether a previous deed purporting to amend the Entitlement Deed was validly executed by the two companies concerned – Whether absence of board authority to execute deed – Whether there was breach of fiduciary duty and its effect where common directors purporting to act for each company – “ratification” by way of ratifying what occurred at non-existent meeting – formalities required for genuine board meetings. - CONTRACT – Whether letter intended to constitute legally binding agreement – Masters v Cameron – possible fourth category.

Leave to amend defence - appeal from decision of Associate Justice not to grant leave to amend - discretionary principles applicable to the granting of leave to amend pleadings - Associate Justice erred in failing to identify 'the relevant circumstances of the particular case' - the Associate Justice erred in failing to identify the grounds for his decision that the registrar had granted leave when it was not 'in the best interests of justice' - the Associate Justice erred in failing to identify relevant prejudice which would operate against the plaintiff and which would warrant refusal of the defendant's proposed amendment - operation of s.64, Civil Procedure Act 2005 - role of the court on an appeal from an Associate Justice is to examine for itself whether there is a sound basis on the evidence that was before the Associate Justice for the ultimate conclusion and orders made - the history of the proceedings will often be relevant to the exercise of the discretion to grant leave to amend but will not, absent specific or actual prejudice, warrant the refusal of leave - dismissal of a cross-claim does not per se create a bar to the grant of leave to amend - appeal allowed and leave granted to defendant to file and serve an amended defence on conditions, the purpose of which is to ensure that the plaintiff is not delayed or prejudiced by the defendant.

Appeal decision of Local Court Magistrate - Small Claims Division - money due

[EVIDENCE] - [PRIVILEGE] Whether the Evidence Act 1995 applies to proceedings in the Administrative Appeals Tribunal - Whether AAT proceedings are "proceedings" as that term is used in s 119 of the Evidence Act or "legal proceedings" for the purpose of common law legal professional privilege.