Cases and authorities

CORPORATIONS - winding up - company holds land used for retirement villages as trustee for unregistered managed investment scheme - company now in liquidation - vacant residential units - monies owing to outgoing residents and for administration of the retirement villages - whether the court should approve liquidators making new occupation agreements - whether court should give directions to support liquidators' proposal to pay outgoing residents and village administration expenses out of ingoing contributions, when winding up is incomplete

CORPORATIONS - winding up -voidable transactions - obstruction of creditors' rights - necessity of pleading and particularising purpose of defeating creditors - PRACTICE & PROCEDURE - particulars of purpose of defeating creditors - failure to supply particulars - striking out of pleading

Criminal law - lies - extent of the credibility rule - meaning of substantial probative value

Common Law - civil law - enforcement of foreign judgment - south African judgment - default judgment - whether foreign judgment can be impeached - whether foreign judgment debt is due and payable - whether there is process to set aside default judgment

CRIMINAL LAW – breaches of the Corporations Act – appeal against sentence - dissemination of false information – dishonesty – failure to discharge duties as a director in good faith and in the best interests of the company – whether evidence to support findings relating to inducement to purchase securities, share price rise and investors’ loss – whether adequate weight given to principle of double jeopardy having regard to civil penalty proceedings – application of De Simoni principle – whether punished for an offence for which not convicted – whether sentence reflected objective criminality – whether adequate weight given to guilty plea – whether sentence manifestly excessive

Criminal law - sentence appeal - whether sentences manifestly excessive - no challenge to individual sentences but challenge to overall terms in breach of principle of totality - full review of facts and law by sentencing judge - sentences not shown to be outside proper sentencing discretion.

Sentence only - Armed Robbery and Form 1 offence - weight to be given to personal deterrence arising out of Form 1 offence - whether manifestly excessive.

CRIMINAL LAW - appeal against conviction - murder - whether jury were misdirected as to provocation under s23(3)(a) of the Crimes Act - rule 4 of the Criminal Appeal Rules.

COSTS - successful appellant previously made formal offers of settlement on three occasions - whether costs should be awarded on indemnity basis - date from which indemnity costs should be assessed - whether offers were each a true compromise

Removal of District Court proceedings to Supreme Court - bar in s 145(2) District Court Act unless judge satisfied amount awarded to plaintiff would be likely to exceed $750,000 - judge not satisfied - no error in applying that test - not required to arrive at complete assessment - sufficiently explained decision - decision open on evidence - leave to appeal refused. ND

CORPORATIONS - Winding up - Voidable Transactions - Debts allegedly incurred by company in liquidation - Mortgages given by company securing past debts said to be a present entitlement - Some debts statute-barred - Mortgages given more than 6 months but less than 2 years from relation-back day - Whether company insolvent at the time - Whether granting of mortgages voidable as insolvent and uncommercial transactions - Whether granting of mortgages a disposition of property within the Corporations Act 2001 (Cth), s 588FDA(1)(a)(ii) - Whether the granting of the mortgages to companies of which close associates of a director of the mortgagor were sole shareholders were grants to persons for the benefit of close associates within s 588FDA(1)(b)(iii) - Whether the grants of the mortgages were unreasonable director-related transactions

Limitation Act 1969 - extension of time - person under a disability - limitation period for wrongful arrest and malicious prosecution.

CONTRACTS – PARTICULAR PARTIES – principal and agent – undisclosed principal – contract inherently incapable of being entered as agent for an undisclosed principal – need for agent to have actual authority to enter contract on behalf of undisclosed principal at the time contract is made – TRADE PRACTICES AND RELATED MATTERS – consumer protection – criteria for deciding whether a representation is misleading and deceptive – whether necessary for a person making an implied representation to know that it was incorrect at the time it was made before it can be misleading and deceptive – whether all false statements are misleading and deceptive – CORPORATIONS – miscellaneous cases – effect of deregistration – effect of reinstatement of registration – extent to which effect of reinstatement is retrospective – TORTS – MISCELLANEOUS TORTS – other economic torts – injurious falsehood – element of malice – DAMAGES – causation – role of “but for” test – shifting the onus of adducing evidence

Criminal Procedure - criminal assets recovery - serious criminal activity and illegal activity - whether proceeds of crime to be assessed include proceeds from illegal activity - whether court must specify illegal activity at time of making initial Proceeds Recovery Order - interim orders in assets recovery process

PRACTICE AND PROCEDURE – costs – plaintiff’s application to vary costs orders made in favour of plaintiff - where plaintiff succeeded in its application to terminate a Deed of Company Arrangement and subsequently obtained orders for the winding up of the defendant – where termination of Deed was a statutory precondition to the making of the order for winding up – whether costs of the deed termination application are costs in respect of the application for the order for winding up under section 556(1)(b) Corporations Act 2001 (Cth) – whether statutory requirement under section 466 Corporations Act 2001 (Cth) that applicant for winding up bear its own costs until a liquidator has been appointed militates against cost orders sought by plaintiff – policy considerations – whether plaintiff’s costs of deed termination proceedings can be characterised as expenses properly incurred by deed administrators under section 556(1)(a) Corporations Act 2001 (Cth) – whether plaintiff’s costs of deed termination proceedings can be characterised as other expenses of deed administrators under section 556(1)(dd) Corporations Act 2001 (Cth) – PRACTICE AND PROCEDURE – Supreme Court Procedure – where liquidator appointed after Deed of Company Arrangement terminated and deed administrators no longer have carriage of proceedings on behalf of the defendant - whether deed administrators should be granted leave to be heard on plaintiff’s application – CORPORATIONS – Deed of Company Arrangement and winding up – order of priority of claims in winding up – whether costs of deed termination application are costs in respect of the order for winding up under section 556 Corporations Act 2001 (Cth) – whether orders sought by plaintiff interfere with administrators’ entitlement to remuneration and expenses – administrator’s right of indemnity – administrator’s lien securing right of indemnity – property over which lien extends – non-effect of order of priority of unsecured claims under section 556 Corporations Act 2001 (Cth) on right of indemnity to the extent that it is secured by lien – no ruling on whether administrator has a lien on this application – WORDS AND PHRASES – “in respect of”

PROCEDURE – miscellaneous procedural matters – litigation where an out of court inspection would be useful, but conducting such inspection is not practical – directions for production of video or DVD – REAL PROPERTY – easements – directions for production of video or DVD of land in question

MORTGAGES [50] – Mortgages and charges generally – Remedies of mortgagee – In general – Injunction to restrain exercise of mortgagee’s powers – Necessity for offer of redemption and payment into court – Exceptions.

Equity - Interlocutory injunctive relief - Services Agreement for the provision by plaintiff of event catering services to the Sydney Operate House Trust - Purported notice of termination following notice of breach - Validity of notice of breach - Validity of notice of termination - Required content of notice specifying breach - Serious case - Balance of convenience

CORPORATIONS - winding up in insolvency - statutory demand - conditions for granting leave under s 459S - standard of proof of financial position where company's finances are simple

CORPORATIONS - winding up - creditor's statutory demand - genuine dispute - dispute arising out of conflicting evidence of oral contract - substantiated amount below statutory minimum - whether indemnity costs appropriate - no issue of general principle

Criminal Trial - application for Verdicts by Direction - Principles - Elements of Terrorism offences: s 101.4, s 101.5, s 101.6 of Criminal Code Act 1995 (Cth)

Administrative law - Judicial review - Whether Registrar and Appeal Panel exercise judicial power under Workplace Injury Management and Workers Compensation Act 1998 - Obligation to provide reasons - Whether decisions of Registrar and Appeal Panel were illogical, irrational

Sentence appeal - aggravated sexual intercourse without consent - delay of 10 years in prosecution - applicant 67 years old when sentenced and would be 71 years when eligible for release - because delay caused by applicant absconding, inappropriate to further adjust sentence.

Criminal law - Sentencing - Sexual assaults on children - Mitigating factors - Totality - Sentence not manifestly excessive.

CRIMINAL LAW - murder - appeal against conviction and sentence - whether new evidence of miscarriage of justice - whether coroner's reports valid - whether sufficient evidence to support jury's conclusion as to cause of death - directions on provocation - whether competent conduct of defence by counsel - whether another sentence warranted in law

CRIMINAL LAW – SENTENCE – guilty pleas - dishonestly obtaining by deception a financial advantage – supply prohibited drug – whether sentence was excessive

NEGLIGENCE – Contributory negligence – Onus of proof on defendant.

CRIMINAL LAW - sentence - manslaughter

Registration of foreign judgment - New Zealand High Court costs order

EQUITY [185] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Liability for breach of trust - What constitutes a breach of trust and who may be liable - Recipient of misapplied trust property - Liability under first limb of Barnes v Addy - Whether proof of knowledge of recipient of breach of trust necessary.

PROCEDURE - APPEAL - Whether relief in nature of a stay would be granted because of strength of appellant's case on appeal.

VARIATION OF ORDERS made in judgment [2005] NSWCA 277 dated 18 August 2005.

BUILDING AND CONSTRUCTION - PROCEDURE - APPEAL - Declaration that adjudication determination void - Contractor appeals, and also issues further payment claim including the same work and obtains an adjudication determination on that claim - Whether appeal an abuse of process - Whether it should be struck out or stayed.

TAX ASSESSMENT — Pay-roll tax — Notice of Objection — Challenge by managing agent of a home unit complex to retention of 5% penalty following remittance from 20% — Taxation regime governing employment agency contracts under s3C of Pay-roll Tax Act 1971 (NSW) introduced in 1998 — Necessity for declaration to qualify for its exemption to be given at time employment agency contract entered into — Whether liable as a common law employer in any event – not necessary to decide.

NEGLIGENCE – Duty of care – Principal – Whether owed to third parties for torts of independent contractor – Only where principal authorises contractor’s tortious acts – Authorisation as express or implied – Whether authorisation may create liability in principal to the independent contractor for damage or loss sustained by contractor. - NEGLIGENCE – Occupiers liability – General principles – Concurrent occupation. - NEGLIGENCE – Construction safety – Requirement that any person who directly or by their servants or agents carries out construction work owes a duty of care – May be more than one person owing duty – Head contractor and subcontractor may be jointly liable – Construction Safety Regulations 1950, regs 73 and 74. (ND)

Appeal Decision of Local Court Magistrate - lease ATM - agency ostensible authority

GAMING AND WAGERING [50] – Other matters – Poker machines – Entitlements – Statutory scheme – Dealings possible under contract or trust – Circumstances in which interlocutory injunction should be granted to protect contractual rights – Gaming Machines Act 2001 ss 15 and 19.

COSTS - circumstances justifying an order for indemnity costs

CONSTITUTIONAL LAW - validity of committal proceedings - constitutional validity of s 68 of the Judiciary Act 1903 (Cth) - whether s 68 has the effect of allowing the States to determine the content of federal law - jurisdiction of State courts in committal proceedings - R v Murphy (1985) 158 CLR 596 applied - whether s 68 results in inequality before the law - effect of differences between committal proceedings in different States - Leeth v The Commonwealth (1992) 174 CLR 455 applied - whether committal proceedings negate a claimant's right to a fair and impartial trial. - STATUTES - application under s 48(2)(c) of the Supreme Court Act 1970 (NSW) for Court of Appeal to hear amended summons. D

Extension of time - limitation periods - claim for personal injury arising from collision between the Melbourne and the Voyager - appeal from an Associate Judge (formerly Master) to a Judge of the Supreme Court - awareness on behalf of plaintiff amounting to knowledge that a personal injury has been suffered - difference between physical and psychiatric injury - nature and extent of personal injury suffered - reports on locating witnesses, former employees who knew or had worked with the plaintiff - hearsay evidence in interlocutory proceedings - s.75 Evidence Act - credit and reliability of the plaintiff - prejudice in delay - significant prejudice making the chance of a fair trial unlikely - presumptive and actual prejudice.

Criminal law - audio-visual link evidence in terrorism trial - Mutual Assistance in Criminal Matters Act 1987 - Certificate where evidence to be taken overseas - principles applicable

APPEAL FROM LOCAL COURT - TIME FOR COMMENCING PROCEEDINGS BY COURT ATTENDANCE NOTICE - PUBLISHING ADVERTISEMENT OF PREPAREDNESS TO PROVIDE BETTING INFORMATION - "PUBLISH" DEFINED BY STATUTE TO INCLUDE "CAUSING TO PUBLISH" - OFFENCE NOT COMPLETE UNTIL ACTUAL PUBLICATION - TIME RUNS FROM COMMISSION OF COMPLETED OFFENCE

Appeal decision of Local Court Magistrate - unpaid invoices

CONTRACTS [120]- Construction- Entire contract clause- Scope. EQUITY [37]- Misrepresentation- Words said during general discussion- Contracts five months later- Little indication by alleged representee as to effect on him of such words- Held no representation made.

CRIMINAL LAW - committal proceedings - direction under ss.91 and 93 Criminal Procedure Act 1986 that complainant attend to give evidence - refusal of prosecution application for adjournment of ss.91 and 93 application - whether denial of procedural fairness - special reasons test - whether actual or constructive failure by Magistrate to exercise jurisdiction on ss.91 and 93 application - legal status of Local Court Practice Note - adequacy of reasons for direction

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Nature of evidence required – Standard of proof.

Appeal against Magistrate's ruling - whether finding that child needs care can be re-examined - whether res judicata or issue estoppel - issues in Children's Court proceedings - establishment and welfare stages - whether error in discretion - whether remedy - certiorari - whether jurisdictional error or error on face of record - only ultimate determination.