Cases and authorities

CONVEYANCING - vendor and purchaser - purchaser failing to complete contract - termination by vendor - whether termination valid - claim for damages pursuant to contractual right to claim loss on resale - calculation of damages

Parole - determination by Parole Authority - misleading information - sex offender - risk of re-offending - refusal to admit guilt - exclusion from sexual offender programmes - other assessment that low risk - offender's refusal to admit guilt characterised as refusal to accept parole - powers of Supreme Court

CORPORATIONS - creditors' voluntary winding up - liquidator's application for directions as to apportionment of proceeds of sale of assets amongst the group companies in liquidation - whether proceeds of sale to be apportioned so as to achieve equal rateable distribution to all priority employee creditors of group companies, or to reflect separate company ownership of assets sold

PROCEDURE - access to documents in court file - where non-party solicitor ordered to file affidavit - party seeks access to such affidavit after filing - solicitor makes submissions - solicitor's duty with respect to money in trust account - solicitor's duty of confidentiality - whether content of affidavit subject to privilege in favour of solicitor's client - whether plaintiff's application for access is "instituting proceedings"

Family Provision Act - estate left equally to four of five children - application by fifth child - decision that no provision should be made - whether error in discretionary decision - no error shown.

NEGLIGENCE – appellant spectator injured by firework while attending football match at stadium occupied by respondent – whether reasonable care taken to avoid a foreseeable risk of injury – whether additional measures should have been taken to discharge reasonable care in the circumstances – Whether sufficient reasons given and difference between adequacy of reasons and sufficiency of reasons – whether precautions taken were unnecessary when dealing with a reasonable person test under s5B Civil Liability Act – whether damages awarded inadequate.

CONTRACTS [59] – General contractual principles – Statute of Frauds s 4 – Note or memorandum – What amounts to – Equitable estoppel - SUCCESSION [321] – Family provision and maintenance – Principles upon which relief granted – Application of children – Adult son – Poor health.

Practice and Procedure - Summary dismissal - Separate question regime

Personal injury claim - Industrial accident - slip case - no matter of principle.

Defendant convicted after ex-parte hearing - conviction recorded on bench sheet - conviction had not been annulled - warrant issued for apprehension of the defendant for sentence - magistrate discharged the defendant pursuant to s.19B(1)(d), Crimes Act 1914 - whether there was power to discharge teh defendant despite teh earlier conviction - meaning of the word "conviction" - whether or not the order made in the ex-parte proceedings constituted a "conviction" within the meaning of s.19B(1)(d).

Appeal decision of CTTT - failure to grant adjournment

CORPORATIONS - application to adjourn winding up proceeding during voluntary administration - adjournment refused - relevant considerations

Sentence - manslaughter - joint criminal enterprise involving an unlawful and dangerous act or acts - significant background history to commission of offence - pleas of guilty entered by three offenders at first reasonable opportunity albeit after trial had commenced - need to impose different sentences given the disparate circumstances of the offenders

COSTS - security for costs of arbitration under s 1335 of the Corporations Act 2001 and s 47 of the Commercial Arbitration Act - where parties agree to amount and form of security - from what date security should operate - where cross-claims are defensive or seek indemnity on basis of matters alleged by claimant - where cross-claims involve same evidentiary dispute - whether security extends to costs of cross-claims - no question of principle

application for leave to appeal against sentence - armed robbery - plea of guilty - malicious wounding - conviction following trial by jury - sentence in respect of armed robbery partially cumulative upon sentence in respect of malicious wounding - conviction in respect of malicious wounding charge quashed by Court of Criminal Appeal - verdict of not guilty in respect of charge of malicious wounding entered - sentence in respect of charge of malicious wounding quashed - adjustment of commencement date of sentence imposed in respect of armed robbery - armed robbery committed whilst subject to parole order an aggravating feature - parole never revoked - revocation of parole function of Parole Board - custody referable only to armed robbery and malicious wounding charges - principle of totality - sentencing discretion of first instance judge

CRIMINAL LAW – application for leave to appeal against sentence – specially aggravated break, enter and steal – assault occasioning actual bodily harm - plea of guilty – subjective circumstances – relevance of prior record – whether sentence manifestly excessive

N/A

NEGLIGENCE - injury sustained through accidental discharge of handgun - application of s 5L of the Civil Liability Act 2002 (NSW) - whether hunting kangaroos by spotlight is a "dangerous recreational activity" within the meaning of s 5K of the Civil Liability Act - discussion of meaning of the term "significant" - whether particular activities engaged in by the plaintiff should be segmented - relationship between a "significant risk" and an "obvious risk" for the purpose of s 5L - whether the risk that materialised was an "obvious risk" of the dangerous recreational activity as defined in s 5F of the Civil Liability Act. D

CARS assessment - jurisdictional error - compensation awarded for attendant care services where statutory threshold not met - deemed offer - admissible evidence and "the record" - discretionary remedy and delay - plaintiff demonstrates entitlement to relief.

CORPORATIONS - Deed of Company Arrangement – challenges to the effectiveness of resolution at Second Meeting of Creditors s.439C to execute Deeds of Company Arrangement - NYOL Group of 14 related companies with Cross Guarantee which bound to each to debts of each other group company and entitled each to indemnities from each other - all entered Administration on same day and appointed same Administrators - all Administrations conducted as one and Second Meetings of Creditors held together as one meeting - Deeds of Company Arrangement proposed were interdependent so that none took effect unless all did - Creditors passed one Resolution to the effect that each company execute Deed of Company arrangement - many challenges to effectiveness of doing so were disposed of on facts relating to understanding of those present at the meeting as to effect of resolution and intention to those voting in support of it - consideration of questions re - meaning and effect of Cross Guarantee – terms of Administrators’ Report - meaning and effect of Proofs of Debt where cross-liabilities on all companies - effect of Proxies – effects of events and documents relating to conduct of meeting - decision on facts and terms of Resolution - held that the Resolution was effective.

TORT- Personal injury- Contractor shot while delivering appellant's products to vending machine- Duty of care- Whether there exists a special relationship which creates duty to protect against violence- Causation- Whether there exists a practicable and reasonable alternative system- Gunman irrational- Alternative system would not have prevented injury.

Costs - order against legally assisted person - whether liability for the costs - whether exception in s 47 of Legal Aid Commission Act applied to bring liability in part for the costs - costs assessed and assessor's certificate filed - judgment for amount of certificate - whether judgment itself brought liability for the costs - discussion of relief which could be granted.

Review Registrar's decision - security for costs - costs

Psychiatric illness caused by intentional intimidation and humiliation by employee of contractor - plaintiff employed by security firm stationed at contractor's premises - liability of plaintiff's employer - liability of contractor - whether wrongful acts committed in course of employment - claim in tort and breach of contract - whether aggravated damages available against contractor for pre-illness suffering causative of compensable psychiatric illness - whether employer liable in contract for contractor's employee's misconduct - conditions of contract of employment - whether infliction of distress and humiliation breach of contract - whether distress and humiliation falling short of psychiatric illness compensable - whether damages only nominal - exemplary damages - calculation of damages - significance of reduced liability of employer under s151Z Workers Compensation Act 1988 - indemnity costs - need for certainty of offer - whether offeree bound to make usual enquiries of relevant matters

National Security Information (Criminal & Civil Proceedings) Act 2004: Protective orders - imposition of orders to protect National Security during a criminal trial - s 85B Crimes Act 1914 (Cth) - s 93.2 of the Criminal Code Act 1995 - principles of open justice - pseudonyms - screening orders - closed court orders - supression of publication of evidence

CORPORATIONS - unfair preferences - company was insolvent when payments made - defence under s588FG not made out

CRIMINAL LAW – CONVICTION APPEAL – offence of robbery – whether a miscarriage of justice was occasioned by the Crown prosecutor’s address which relied on lies told by the appellant as evidence of guilt – whether a miscarriage of justice was occasioned by the failure of the trial judge to properly direct the jury in relation to lies alleged to have been told by the appellant – whether the trial judge erred in allowing the Crown to call evidence in reply – SENTENCE – whether sentencing judge erred in taking into account as aggravating factors - prior convictions – offence committed in company - whether disparity with co-offender’s sentence gives rise to a justifiable sense of grievance

ARBITRATION - Leave to appeal against award - Whether award contained manifest error of law on its face - Whether strong evidence of error of law and determination of question would substantially add to certainty of commercial law - Whether long delay in handing down award amounted to procedural unfairness and error of law - Whether procedural unfairness in Board's method of dealing with minority view and in allowing defence of equitable set off

[JURISDICTION] Application for revocation of orders made for the payment out of $4,942,716.00 of $11,228,898.63 paid into court pursuant to s 25(4)(b) of the Building and Construction Industry Security of Payment Act 1999 as a condition of the grant of a stay - whether the Court has jurisdiction to order stay on condition of payment out of part of the security paid into court - whether legislation intended to fetter the discretion of a judge where dictates of justice require payment out.

Review decision of Registrar - set aside subpoenae

CORPORATIONS - companies in liquidation - application under s486 of Corporations Act 2001 - evidence in support extraordinarily weak - no high hurdle - application granted

Confidential information - meaning of requirement that the information have "the necessary quality of confidence about it" - whether the secrecy of the information must be absolute or may be merely relative so that what is "not generally known" may be a trade secret or confidential information - relevance of "the usage and practices of the particular industry or trade" - effect of the decision in Wright v Gasweld Pty Ltd --- - confidentiality of information as to the source and suppliers in Italy of a particular stone found in a remote and little known area of Sicily - agreement in restraint of trade - whether related to employment only or also to goodwill involved in a sale of shares - effect of involvement of goodwill - construction of expression "commercially sensitive information " by reference to the practice in the industry concerned - whether a company was used as a cloak to enable a covenantor to avoid the effect of his personal obligation --- principles of construction of agreements in restraint of trade --- prevention of the use of confidential information as a "springboard" - duties of directors and employees of a company, whether currently or formerly so, with respect to information under s. 183 of the Corporations Act 2001.

Criminal Law - sentencing - past relationship - aggravated sexual assault - special knowledge - manifest excess - special circumstances - extended supervision

application for leave to appeal against severity of sentence - two charges of break and enter with intent to steal - pleas of guilty - offences committed whilst on parole - parole revoked - sentences in respect of present offences made fully cumulative upon the head sentence is respect of previous offences - effect of revocation of parole - whether applicant doubly punished for the fact that offences were committed whilst on parole - discretion to backdate a sentence where parole has been revoked by reason of the offence for which the offender is to be sentenced - exercise of discretion found not to have miscarried

Criminal Law - Sentence - Crown appeal - sentence close to expiry - manifest excess - residual discretion

Criminal law - sentencing - parity in sentencing - discretion - constraint on exercise of discretion - matters relevant to discretion - prohibited drugs - meaning of trafficking - necessity for full-time custodial sentence for isolated technical supply

DEFAMATION - jury did not accept an imputation was conveyed - whether jury's finding was one that no reasonable jury could reach - jury's decision was reasonably open to it.

COSTS - offer of compromise served in District Court proceedings - whether costs of the successful appeal should await the outcome of retrial.

VENDOR AND PURCHASER – Deposit – nature of deposit – identification of deposit on construction of inconsistent references in Contract – forfeiture of deposit on failure to complete – exemption of forfeiture of reasonable deposit from law avoiding contractual penalties – whether liquidated damages – contract on proper construction provided for deposit less than 1% of p.p. – Special Condition 5 provided that if purchaser committed a default 10% deposit should become due and payable – reference in SC 5 to that payment as a deposit was a misdescription – the provision of SC 5 relating to further payment on default was void as a penalty. - PENALTY – what constitutes penalty – deposit on sale of land – a provision requiring payment of up to 10% of purchase price to be made on any default by purchaser where contract established that the deposit was about 1%, was a penalty and was void notwithstanding that, if the contractual deposit had been 10% that would have been a reasonable deposit and not a penalty – consideration whether the provision was liquidated damages – held that it was not.

Crown appeal on sentence - offence of break enter and steal in circumstances of aggravation - inappropriateness of suspended sentences - pleas of guilty not "early" and limited utilitarian value - incorrect use of prior offences - relevance of standard non-parole period - sentences manifestly inadequate - proper sequence of reasoning when formulating a sentence - principles applicable on resentencing.

TORTS - Negligence - General Matters - Purchase of shares in unitholder and trustee of trust with carry-forward tax losses and capital profit on sale of hotel - Whether tax adviser's letter constituted advice that carry-forward losses were available to offset future assessable income in the trust - Whether advice without qualification negligent - Whether client aware of the matters the subject of reasonable qualifications - Sophisticated client aware of risk of future offset being set aside under the Income Tax Assessment Act 1936 (Cth), Pt IVA - Purchase of tax losses bargained to 6 cents in the dollar when tax rate 39% - Significance of vendors' warranty that tax losses available to offset future income and solicitor's advice that they and the tax adviser could be sued if losses not available for offset - Commissioner of Taxation subsequently assesses capital gain on sale of hotel as on revenue account and tax losses are absorbed - Whether negligence of tax adviser a material cause of the loss or damage - Whether tax adviser liable to damages in negligence or under the Fair Trading Act 1987, s 68

Admission of liability for breach of duty of care - admission purportedly withdrawn - questions pertaining thereto - breach put in issue in pleadings - application to strike out denial of liability - relevant considerations - transfer of proceedings to District Court.

CORPORATIONS - arrangements and reconstructions - Part 5.1 schemes of arrangement involving acquisition of all shares by another party and cancellation of all options - applications for approval under s.411(4)(b) - Chapter 6 off-market takeover bid launched by third party after s.411(1) orders made - procedure for incorporation of more favourable terms into proposed Part 5.1 schemes - inability of company unilaterally to alter proposed Part 5.1 schemes - 15 per cent shareholding acquired by the third party - undertaking given to Takeovers Panel prevents voting of that shareholding at scheme meeting - whether court should consider how such votes might have been exercised - evidence of third party's intentions - whether court should be influenced by possibility of further increase in third party's takeover bid

PROCEDURE - costs - indemnity costs - when appropriate - significance of abandonment of an issue to whether an indemnity costs order should be made - PRACTICE - interest on costs - circumstances when appropriate to order - form of order - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - statute of frauds section 4 - whether an oral contract which is collateral to a contract for the sale or other disposition of land or an interest in land is caught by section 54A Conveyancing Act 1919

Non-party access to court file - significance of Supreme Court Practice Note - limitations on "principle of open justice" - need for non-party seeking access to demonstrate that access should be granted.

PROBATE - Construction of will - Factual issue of whether first plaintiff indebted to testator at time of testator’s death, requiring debt to be offset against entitlement to recover benefit of bequest - defendants failed to discharge onus of establishing monies were loans and not gifts - Whether particular clause in will required legacy to second plaintiff to be offset against mortgage debt bequeathed to first plaintiff