http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1523.html

CORPORATIONS – Winding up – Insolvency – Proceeds of contract of reinsurance – Application for orders under Corporations Act 2001 (Cth) s 562A(4) – Whether “just and equitable” to make orders sought by the Plaintiffs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1059.html

CORPORATIONS – Winding up – Termination – Power of court to terminate winding up – Attitude and interests of creditors, liquidator and contributories – Whether termination is in the public interest and the company is solvent – Whether any non-compliance with statutory duties and circumstances leading to wind up explained.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/243.html

ADMINISTRATIVE LAW – judicial power – executing invalid order of superior court – whether order of superior court incompatible with exercise of judicial power is valid until set aside – whether non-judicial order derives whatever authority it has solely from the relevant legislation – effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51

CONSTITUTIONAL LAW – judicial power – Supreme Court order under statutory power incompatible with judicial power invalid – order made in proceedings involving exercise of federal judicial power – exercise of federal judicial power simultaneous with function incompatible with judicial power – whether invalid State law applied by federal law – Judiciary Act 1903 (Cth), ss 39(2), 79 and 80

TORT – defences – protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith – whether protection exists at common law – whether any protection extends to orders incompatible with exercise of judicial power

TORT – false imprisonment – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation – legislation incompatible with judicial power and invalid – whether deprivation of liberty carried out by a person for whose conduct the State was liable – whether deprivation of liberty justified by law

TORT – malicious prosecution and collateral abuse of process – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation – whether malice established

TORT – vicarious liability – vicarious liability of the State for conduct of persons in service of the Crown – whether State vicariously liable for conduct which was tortious absent statutory protection – Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/182.html

PROCEDURE – Defamation proceedings – Destruction of mobile phones prior to commencement of proceedings – Admitted facts before primary judge disclosed evidence material to pleaded imputations had been destroyed – Whether admitted facts supported the inference that appellant intended to pervert the course of justice – Whether primary judge erred in striking out appellant’s statement of claim as an abuse of process – Uniform Civil Procedure Rules, r 13.4(1)(c)

DEFAMATION – Destruction of evidence prior to commencement of proceedings – Claim for aggravated damages – No defence filed – Notice to strike out claim – Whether truth of imputations in issue on claim

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/490.html

CONVEYANCING – vendor and purchaser – purported rescission of contract by purchaser – whether purchaser became mentally ill – termination of contract by vendor – application for return of deposit

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/433.html

PROCEDURE – various motions and oral applications – application by defendants for summary dismissal of Attorney General’s summons – application refused – motion seeking leave to issue subpoenas – refused – application for trial by jury – application previously heard and refused -
leave sought to proceed on defendants’ proposed statement of claim – leave not granted – notices to admit facts served on Attorney General – refused – summary judgment on notice to admit facts served on the Commonwealth – notice set aside – leave sought by Commonwealth to amend its motion to set aside notices to produce documents granted – motion to set aside notices to produce documents – granted – notices to produce served on Attorney General – motion seeking production of documents by Attorney General – production of certain documents required, motion otherwise dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1326.html

ADMISSIONS – application to withdraw – principles – evidence – admission of affidavit evidence from other proceedings

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1315.html

PROCEDURE – Vexatious Proceedings Act 2008, s 6, s 8 – Whether proceedings are vexatious – meaning of “vexatious” – whether proceedings were conducted frequently – meaning of “frequently”

- Evidence Act 1995 (NSW) – s 91

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1156.html

CORPORATIONS – management and administration – directors – fiduciary duties of directors – where loan account in director’s favour established in company’s books – where to director’s knowledge there was no entitlement of the director to funds represented by the loan account – drawings by director against loan account – whether breach of fiduciary duty – whether fraudulent breach – CORPORATIONS – informed consent of company to breach of fiduciary duty – where one shareholder given by constitution power to pass any resolution at a general meeting – assent by that shareholder apart from general meeting – whether effective – ESTOPPEL – prior adjudication – where creation of loan account and drawings on it had been the subject of findings in earlier oppression proceedings – whether res judicata – whether issue estoppel – whether existence of issue estoppel precludes reception of further evidence – ESTOPPEL – prior adjudication – effect on non-party – whether non-party privy or agent of party – EVIDENCE – judicial discretion to limit use – relevance of inability to cross-examine because witness not called – REAL PROPERTY – co-ownership – joint tenants – whether fraud of one joint tenant in taking of title jointly affects other joint tenant – where first joint tenant later transferred his interest to second joint tenant – nature of the sole registered proprietor’s title under Real Property Act – TORRENS SYSTEM – fraud exception to indefeasibility of registered estates – nature of relevant fraud – EQUITY – equitable defences – laches – elements of defence – LIMITATION OF ACTIONS – proceedings for equitable relief – equity seeks analogy with the law – fraudulent breach of fiduciary duty – analogy with tort of deceit or conspiracy to defraud – no analogy with trusteeship if trust property not held – relevance of incapacity

Evidence Act 1995, ss 69, 91,136

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/904.html

Introduction agency – allegations of misleading and deceptive conduct – allegations of unconscionable conduct -accessorial liability of the second defendant – ex parte proceedings

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/479.html

CORPORATIONS – directors – duties of directors – company’s sole asset sold – sole director fails to account in any way for proceeds – vague statement as to part that it was used to pay unspecified debts – evidence as to another part that it was given to daughter-in-law to enable her to pay off her home mortgage – findings of breach of duty by director as to three sums – funding of “knowing receipt” by daughter-in-law as to one of these.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/100.html

CORPORATIONS – mortgagee in possession – corporation in business of hiring scaffolding – whether agents of mortgagee (“Controllers”) liable under s 419A(2) of the Corporations Act for rent due to third party for scaffolding in possession of corporation – whether third party proved that its scaffolding was in the possession of the corporation at the date of Controllers’ appointment – whether the language of s 419A(2) of the Corporations Act extends to the corporation’s liability to make payments at the end of a period of hire – whether the primary Judge was correct not to excuse the Controllers from liability pursuant to s 419A(7) of the Corporations Act.

TORTS – conversion – whether sale by Controllers of scaffolding constituted conversion – whether damages should be assessed by reference to owner’s list prices.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/274.html

COURTS – PRACTICE AND PROCEDURE – abuse of process – proceedings for damages for defamation – destruction of material by plaintiff when legal proceedings in contemplation – destroyed material potentially relevant to truth or falsity of defamatory imputations- whether conduct amounted to an attempt to pervert the course of justice – whether proceedings should be dismissed – counsel bound by admission made to court – principles considered

http://www.austlii.edu.au/au/cases/cth/FCA/2011/222.html

PRACTICE AND PROCEDURE – application for temporary stay of taxation appeals – applicant but not Commissioner of Taxation a party to proceeding in Supreme Court of Queensland involving some issues of law and fact common to taxation appeal – consideration of relevant principles – application refused

Evidence Act 1995 (Cth) s 91

http://www.austlii.edu.au/au/cases/cth/FCA/2011/186.html

BANKRUPTCY – Sequestration order – creditor’s petition – whether act of bankruptcy within six months of petition – interpretation of order extending time for compliance with bankruptcy notice until “first return date” of notice of appeal – whether “first return date” was date of appeal index conference before registrar or later call-over before judge

BANKRUPTCY – Sequestration order – creditor’s petition – whether debtor able to pay debts within meaning of Bankruptcy Act 1996 (Cth) s 52(2)(a) – whether sequestration order ought not be made for “other sufficient cause” within meaning of s 52(2)(b)

Evidence Act 1995 (Cth) ss 91, 131

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/335.html

DEFAMATION – defences – substantial truth – whether necessary to prove each element of imputation a matter of substantial truth – whether element a material part of the imputation – whether sting of imputation proven to be a matter of substantial truth – Defamation Act 1974 (NSW), s 15
DEFAMATION – defences – contextual truth – whether by reason of the substantial truth of one imputation remaining imputations did not further injure reputation – Defamation Act 1974 (NSW), s 16
DEFAMATION – damages – mitigation of damages – evidence of bad reputation – identification of scope of reputation capable of being harmed by imputations – whether evidence of bad reputation goes to relevant sector of reputation
DEFAMATION – damages – mitigation of damages – evidence of bad reputation – post-publication evidence of bad reputation – correctness of Rochfort v John Fairfax & Sons Pty Ltd [1972] 1 NSWLR 16
DEFAMATION – damages – mitigation of damages – bad reputation – use of judicial findings made in other civil proceedings
DEFAMATION – damages – mitigation of damages – bad reputation – use of evidence properly before the court on some other issue
DEFAMATION – damages – continuing nature of damages for injury to reputation and hurt to feelings
DEFAMATION – damages – where separate publications – assessment of amount to be awarded
DEFAMATION – damages – whether damages excessive

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1022.html

PRACTICE AND PROCEDURE – application for stay or adjournment of proceeding pending outcome of appeals in separate proceedings
Held: adjournment granted.

Evidence Act 1995 (Cth), s 91(1)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1013.html

BANKRUPTCY – application for stay of proceedings pursuant to sequestration order until determination of appeal – application for return of passports from trustee and permission to travel overseas

Evidence Act 1995 (Cth), s 91

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/737.html

CORPORATIONS – examination of officers and others – written record of examination – to what extent admissible in evidence to prove facts stated – EVIDENCE – admissibility – hearsay – where deponent repeats in current affidavit statements made in an earlier affidavit – whether excluded by hearsay rule – EVIDENCE – admissibility – proceedings by company against director alleging breach of duty – whether defendant thereby exposed to penalty relevant to admissibility of evidence – EVIDENCE – admissibility – written record of examination – application of hearsay rule – statutory exception in Corporations Act

Evidence Act 1995 (Cth), s 4
Evidence Act 1995 , ss 4, 56, 59, 69(1), 69(2), 69(3), 91, 135

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/645.html

DEFAMATION – pleadings – defence – whether parts of truth and contextual truth defences should be struck out under UCPR 14.28(1) – adequacy of particulars to support truth defence – test to be applied – capacity of matter complained of to convey contextual imputation pleaded – whether contextual imputation pleaded is an “other imputation” – context of publication relevant – permissible breadth of contextual imputation – adequacy of particulars of the truth of contextual imputations to support contextual truth defence – effect of admission by plaintiff of some particulars of truth – whether fact is in issue after admission – whether contextual imputations differ in substance – availability of particulars of bad reputation to support plea of bad reputation

http://www.austlii.edu.au/au/cases/cth/FCA/2010/193.html

PRACTICE AND PROCEDURE: Application pursuant to ss 30 and 50 of the Bankruptcy Act 1966 – whether trustee should take control of respondent’s property – whether respondent should be restrained from departing Australia.

Evidence Act 1966 (Cth), ss 91(1), 97(1)(a), 100(1), 135.

[2009] FCA 1224

TAXATION – Income Tax and Penalty Assessments issued by Commissioner of Taxation – Allegedly false or misleading statements as to personal services by the appellant as to his income resulting in a tax shortfall – Whether the income received by a New Zealand incorporated company from an Australian company was mainly a reward for the appellant’s personal efforts or skills – Whether the aforementioned income constituted the appellant’s “personal services income” – Whether the New Zealand company was a “personal services entity” – Whether 80% of the appellant’s personal services income was from the same entity – Whether the appellant met the results test under s 87-18 Income Tax Assessment Act 1997 (Cth) – Whether an overseas company can be a personal services entity in relation to the assessment of personal services income of an individual – Whether the attribution of income paid to the New Zealand company by the Australian company as the appellant’s personal services income is contrary to the Australia-New Zealand Double Taxation Agreement – Whether the penalty assessment for intentional disregard of a taxation law was assessed correctly – Whether the Commissioner’s related penalty remission decision was attended with error such that the Court should reach its own conclusion on that subject – Held payments from Australian company to New Zealand company constituted part of the appellant’s “personal services income” – Held payments were an additional commission reward for services or skills provided to Australian company – Held New Zealand company was a “personal services entity” – Held appellant’s “personal services income” was not income from conducting a “personal services business” – Held New Zealand company can be a “personal services entity” in respect of Part 2-42 of the Income Tax Assessment Act 1997 (Cth) – Held NZ Double Taxation Agreement subjects the appellant to taxation in Australia in respect of the appellant’s “personal services income” pursuant to Part 2-42 of the Income Tax Assessment Act 1997 (Cth) – Held appeal allowed – Question as to whether possible by court order to increase the amount of an assessment on an appeal from an objection decision – Reserved for consideration after receipt of supplementary submissions

TAXATION – Goods and Services Tax – Whether the assessment of the GST net amount and related penalty assessment was excessive – Whether any of the items the subject of the claimed input tax credits were acquired by the partnership in carrying on an “enterprise” – Characterisation of the “enterprise” of the partnership – Whether the items the subject of the claimed input tax credits were of a private or domestic nature – Whether the statutory pre-conditions to the assessment of the base penalty were satisfied – Whether the Commissioner of Taxation properly exercised his discretion not to remit the base penalty – Whether the Commissioner of Taxation’s opinion that there was an avoidance of tax due to fraud or evasion was an error of law – Held GST assessment excessive – Held entitlement to claim tax credits in respect of forestry enterprise was an entitlement – Held no entitlement to claim tax credits in respect of accountancy practice and naturist retreat – Held Commissioner of Taxation’s remission decision was a error of law – Held appeal allowed

Evidence Act 1995 (Cth) ss 69(2)(b), 91(1)

[2009] ACTSC 5

CRIMINAL LAW – trial by Judge alone – aggravated robbery – accessory after the fact – act of assistance – fault elements of knowledge and intent– Criminal Code 2002 (ACT), s 717.

Evidence Act 1995 (Cth), s 91

[2004] NSWSC 278

WILLS AND ESTATES – forfeiture rule – whether object of discretionary trust receives benefit for purposes of rule – causal connection between beneficiary’s conduct and deceased’s death – admissibility of evidence of decision at criminal trial that accused was not guilty due to mental illness

Evidence Act 1995 (NSW), ss 91, 178

 [2005] NSWCA 174

Letter written to Police Minister by defendant imputing that plaintiff not a fit and proper person to hold gaming licence or to be associated with holder of such licence – Police Minister directs investigation into allegations made in letter – defamation action based on letter – defendant pleads defences of truth and qualified privilege – malice pleaded in answer to qualified privilege – - -

At trial plaintiff seeks to tender five judgments of Licensing Court and report of investigation into defendant’s allegations all rejecting those allegations, of which defendant was aware, as evidence of malice by defendant’s persistence in asserting truth of his allegations in face of their constant rejection by authorities – tender rejected by trial judge as unfairly prejudicial to defendant, as strength of findings in favour of plaintiff such that jurors unable to put them out of mind when considering defence of truth – Evidence Act 1995, s 135 – error by judge – - -

At trial plaintiff seeks to amend by adding to particulars of malice and supplying particulars of aggravated damages – judge rejects on principles of case management- similarity of issues in malice and aggravated damages – error by judge – - -

Judge rules that, after withdrawal of defence of truth and in absence of particulars of aggravated damages or of falsity, no issue of truth or falsity arose – discussion of relevance of truth and falsity in defamation – error by judge

[2001] FCA 237

PRACTICE AND PROCEDURE – Appeal against stay for want of prosecution – consideration of whether stay final or interlocutory – whether exercise of discretion miscarried – demonstrable error – consideration of case management practices.

[2003] NSWSC 508

SUCCESSION- WILLS, PROBATE AND ADMINISTRATION- rules of public policy – forfeiture by killing -application to have funds released to person accused of murdering testator – EXECUTORS AND ADMINISTRATORS – what constitutes administration being completed – personal liability of representative for release of funds to wrong beneficiary – EXECUTORS AND ADMINISTRATORS – rights, powers and duties – duty to ascertain the beneficiaries – duty where notice of possible forfeiture by a beneficiary – PROCEDURE – administration of estates – application to release funds to a possible beneficiary before estate administration complete – basis for a right of a beneficiary from an estate not fully administered – appropriation – interim distributions -whether beneficiary has a right to be paid where there is an undecided forfeiture question – PROCEDURE – administration of estates – summary relief requiring distribution by executor – when appropriate – EVIDENCE – CIVIL PROCEEDINGS – effect of a verdict in criminal proceedings on a factual question in civil proceedings – admissibility and significance of a conviction – EVIDENCE – onus of proof – presumption of innocence – role in proof of criminal or seriously wrongful acts within civil proceedings – whether applicable in litigation where whether such an act has occurred is not being decided.

[2004] NSWSC 606

SUCCESSION – Executors and Administrators – Proceedings by executors or administrators – Determination of questions in administration of estate – Nature of right of residence granted to husband by testatrix – Residuary estate bequeathed to son – Whether forfeiture rule applies to acceleration of son’s interest upon killing father – Son convicted of manslaughter – Whether certificate of conviction admissible – Whether son’s interest postponed for period of life expectancy of father – Whether late application for modification of rule under Forfeiture Act 1995 should be granted – Whether rule should be modified – Whether only effect of forfeiture rule to delay son’s entitlement