Application for Leave Integrated Planning Act – Environment and Planning – Courts and Tribunals with Environment Jurisdiction – Queensland – Planning and Environment Court and its Predecessors – Powers on Appeal – where judge in Planning and Environment Court allowed appeal in relation to the refusal of a development application by Mackay City Council – where appeal lodged with Court of Appeal against decision of Planning and Environment Court – where judge in Planning and Environment Court then made further orders with respect to hearing of questions concerning residential amenity issues – where judge proposed to rule on amenity question with the intention of excluding those matters from consideration by the Court of Appeal – whether in embarking on fresh hearing judge exceeded jurisdiction – whether judge failed to take into account relevant considerations – HELD: Application for leave to appeal granted; Appeal allowed; Orders of 4 February 2008 be set aside, and an order be substituted that any further hearing of the issues in dispute be adjourned pending determination of Appeal No 11897/07; First respondent to pay the costs of the applicants/appellants and the second respondent

General Civil Appeal – Procedure – Supreme Court Procedure – Queensland – Procedure under Rules of Court – Summary Judgment – where the appellant claimed that a liability owed to it by the first respondent was covered by an insurance policy issued to the first respondent by the second and third respondents – where the second and third respondents alleged that they had repudiated the contract of insurance for non-disclosure by the first respondent – where the second and third respondents obtained summary judgment against the appellant – where r 293(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld) required that no real prospect of succeeding be demonstrated before summary judgment be entered – whether a repudiation of the contract of insurance by the second and third respondents entitled the second and third respondents to summary judgment – Appeal and New Trial – Appeal – Practice and Procedure – Queensland – When Appeal Lies – By Leave of Court – Costs Orders - where the trial judge made an order as to costs – where s 253 of the Supreme Court Act 1995 (Qld) provided that no order as to costs only, which by law are left to the discretion of the judge, shall be subject to any appeal except by leave of the judge who made the order – where no such leave was obtained – whether the appeal was competent – HELD: That the appeal from the order of the learned primary judge made on 12 June 2007 by which the appellant's action was dismissed with costs to be assessed be allowed; Set aside the order of 12 June 2007 and in lieu thereof order that the second and third respondents' application for summary judgment be dismissed with costs to be assessed on the standard basis; That the appeal from the order that the appellant pay the second and third respondents’ costs of the successful application to set aside the default judgment be dismissed; That the second and third respondents pay the appellant’s costs of the appeal to be assessed on the standard basis

General Civil Appeal – Procedure – Supreme Court Procedure – Queensland – Procedure under Rules of court – Summary Judgment – where the appellants brought an action against the respondent for the recovery of a debt – where the respondent does not dispute the evidence of the debt adduced by the appellants – where the respondent sought to resist the appellants' application for summary judgment on the grounds of his entitlement to an equitable set-off against the debt – whether the claimed equitable set-off is a sufficient basis upon which an application for summary judgment can be refused – HELD: Appeal allowed; Orders of the Supreme Court set aside; Judgment for the appellants in the sum of $340,591.33 together with interest at the rate of 16 per cent from 20 September 2007; Respondent to pay the appellants' costs of the appeal and of the action to be assessed on the standard basis

Application for Leave s 118 DCA (Civil) – Appeal and New Trial – Appeal – Practice and Procedure – Queensland – When Appeal Lies – By Leave of Court – Generally – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the work was not completed – where the applicant seeks leave to appeal against the decision of the District Court under s 118(3) District Court of Queensland Act 1967 (Qld) – whether there was an error of law in the decision of the Commercial and Consumer Tribunal – whether the application for leave to appeal should be dismissed – where s 100 Commercial and Consumer Tribunal Act 2003 (Qld) requires an appeal of a decision of the Tribunal to be filed within 28 days after the decision takes effect – where the Tribunal’s decision took effect on 30 August 2006 – where the respondent sought leave to appeal on 10 August 2007 – where there is no power in the District Court of Queensland Act 1967 (Qld) or the Uniform Civil Procedure Rules 1999 (Qld) to extend the time limit – whether the primary judge’s implicit decision to give leave to appeal resulted in an error of law which ought to be corrected – Contracts – Building, Engineering and Related Contracts – Performance of Work – Remedies for Breach of Contract – Damages – Measure of – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the contract sum was $6,600 – where the work was not completed – where the respondent engaged another builder to complete the contract for $13,970 – whether the contracts provided for the supply of labour as well as materials – whether the right test was applied for the assessment of damages – Other Matters – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where three days after work commenced the applicant told the respondent he would not complete the work – where the applicant removed all his materials from the site – whether there was sufficiently clear acceptance of the applicant’s repudiation by the respondent by engaging another contractor to complete the work – HELD: Leave to appeal the order of the District Court made on 28 September 2007 be allowed; Such order be varied by substituting for “$9,587” in paragraph 3 thereof with “$4,370”; The following be substituted for paragraph 4 of such order: “The applicant Gerald James Wenn pay the respondent Café San Paul Pty Ltd’s costs of and incidental to the application for leave to appeal to be assessed on the standard basis on the scale of the District Court applicable to a claim of less than $50,000.”; No order as to costs of the appeal

General Civil Appeal – Appeal and New Trial – Appeal – General Principles – Interference with Discretion of Court Below – In General – Failure to Exercise Discretion – where the respondent was the subject of a continuing detention order under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the continuing detention order was reviewed in accordance with s 27 of the Act – where the primary judge on review rescinded the continuing detention order and made orders for the supervised release of the respondent – whether the conclusion that the risk posed by the respondent to the community could be adequately met by the supervised release of the respondent on the conditions imposed was one that was reasonably open to the primary judge on the evidence – Right of Appeal – When Appeal Lies – Error of Law – Particular Cases Involving Error of Law – Failure to Give Reasons for Decision – Adequacy of Reasons – where the primary judge was obliged under the legislation to give detailed reasons for the making of a supervision order in preference to a continuing detention order – whether the reasons given by the primary judge were adequate – HELD: Appeal dismissed

General Civil Appeal – Professions and Trades – Lawyers - Remuneration – where the appellant arranged for loans to be made to his clients from a litigation lender for the purpose of covering the costs associated with prosecuting their claims – where the loan moneys from the litigation lender were paid into the appellant's trust account and then drawn upon as required to meet the costs incurred – whether the loan moneys amounted to "disbursements" which "the client must pay, or reimburse, to the practitioner" within the meaning of s 48IC of the Queensland Law Society Act 1952 (Qld) - where under the retainer between the appellant and his clients it was agreed that the amount of GST payable upon the appellant's fees would be added to the clients' accounts – whether the appellant's right under the retainer to recover from the clients his GST liability is precluded by the operation of s 48IB and s 48IC of the Queensland Law Society Act 1952 (Qld) – HELD: Appeal dismissed with costs

General Civil Appeal – Procedure – Supreme Court Procedure – Queensland – Procedure Under Rules of Court – Pleading – Generally – where the plaintiff asserted an entitlement to an equitable interest on the basis of an alleged expectation created by the defendant – where the expectation was based on a deed as well as conduct and statements made before the deed was executed – where the deed was found to be void by operation of s 8 of the Land Sales Act 1984 (Qld) – where the trial judge accepted the arguments advanced on behalf of the defendants that contended that the deed could not be a source of any expectation giving rise to any equity in the plaintiffs – where the trial judge found that the plaintiffs did not plead a case which excluded reliance upon the deed – whether the plaintiff’s pleadings pleaded a case which excluded reliance upon the deed – whether the plaintiff’s case necessarily relied upon the Land Sales Act 1984 (Qld) as conferring any status upon them – Estoppel – Estoppel in Pais – Matters Against Which Estoppel Does Not Prevail – Statutory Provisions – where s 8 of the Land Sales Act 1984 (Qld) rendered invalid a deed assigning an interest in land – where the plaintiffs attempted to use the deed as a source of an equitable interest in the land – where the defendants argued that the plaintiffs were precluded from raising the estoppel to overcome the effect of the statute – whether the nature of the provision was such as to preclude the existence of the equity for which the plaintiffs contended – Appeal and New Trial – Appeal – General Principles – Points and Objections Not Taken Below – When Not Allowed to be Raised on Appeal – Questions Not Raised on Pleadings or in Argument – Generally – where the plaintiffs mounted an argument in the appeal that the defendant’s failure to inform the plaintiffs that a subdivision could not take place was productive of substantial loss – where the defendants objected on the basis that that case was not run at trial – whether the plaintiffs were allowed to run that argument on appeal – Interest – Where Equitable Relief or Fiduciary Relationship – where the plaintiff was granted equitable relief – where the relief was for breach of trust – whether compound interest should be granted in the circumstances – HELD: That the appeal be allowed and that the orders made by the trial judge be set aside; In lieu thereof order that: a) The first defendants pay the plaintiffs $145,759.81; b) The fourth defendant pay the plaintiffs $111,743.10; c) The claim against the second and third defendants be dismissed; That the parties make written submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No. 1 of 2005.

General Civil Appeal – Conveyancing – Relationship of Vendor and Purchaser – Breach of Contract – Deposit – What Constitutes a Deposit – where in accordance with a special condition of the contract, the deposit holder was to pay the deposit to the vendor immediately and without any breach of contract by the purchaser – whether the payment to the deposit holder was a "deposit" within the meaning of the term as defined under s 71 of the Property Law Act 1974 (Qld) – Statutes – Acts of Parliament – Interpretation – Rules of Construction – Presumptions as to Leislative Intention – Not to Invade Personal Common Law Rights – where the parties agree under a special condition to the contract to authorise the deposit holder to pay out the deposit money to the vendor immediately and without any breach of contract by the purchaser – whether s 384 and s 385 of the Property Agents and Motor Dealers Act 2000 (Qld) operate to invalidate this clause of the contract – HELD: Appeal dismissed; Appellant to pay the respondents' costs of and incidental to the appeal to be assessed on the standard basis

Sentence Application – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal Against Sentence – Appeal by Convicted Persons – Applications to Reduce Sentence – When Granted – Particular Offences – Offences – Offences Against the Person – Sexual Offences – applicant pleaded guilty to one count of maintaining a sexual relationship with his daughter with circumstances of aggravation – head sentence of seven years imprisonment – parole eligibility date not fixed – the complainant was between 13 and 17 when the offences occurred – the applicant procured the complainant to perform fellatio upon him ‘daily’ for a period of three years – where relevant mitigating factors – sentence was manifestly excessive – HELD: Application for leave to appeal against sentence granted; Set aside the sentences imposed and in lieu thereof order that a period of imprisonment of six years be imposed for count 1; a period of imprisonment of three years be imposed for count 3; and a period of imprisonment of two years be imposed for each of counts 2, 4, 5, and 6; All sentences to be served concurrently; The applicant be eligible for parole at 10 March 2010

Appeal against Conviction – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Particular Grounds – Misdirection and Non-Direction – General Matters – Presentation of Defence Case and Crown Case and Review of Evidence – where the trial judge allowed the admission of unparticularised evidence of uncharged acts of unlawful sexual activity by the appellant against the complainant – where the evidence was uncorroborated – where the trial judge directed the jury as to the dangers of such evidence and the need to scrutinise it with real care – whether such evidence was properly put to the jury as evidence that may be relied upon in establishing a contravention of s 229B(1) of the Criminal Code Act 1899 (Qld) – Unreasonable or Insupportable Verdict – Where Appeal Dismissed – where appellant convicted on one charge of maintaining a sexual relationship with a child under 16 years and acquitted on two counts of the rape of the same child – whether the conviction on the maintaining count is inconsistent and irreconcilable with the acquittals on the rape counts – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt – HELD: Appeal Dismissed

Sentence Application – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal against Sentence – Appeal by Convicted Person – Applications to Reduce Sentence – When Granted - Generally – where the applicant was convicted in the District Court for one count of grievous bodily harm and sentenced to imprisonment for 18 months – where applicant seeks leave to appeal to this Court on grounds that the sentence is manifestly excessive – where the applicant contends the learned sentencing judge made certain errors in fact finds on uncontradicted evidence – whether application should be allowed - Allow the application for leave to appeal; Allow the appeal and set aside the sentence imposed below; Substitute a sentence of 18 months imprisonment with a parole release date fixed at 16 May 2008; Declare that the applicant has served four days imprisonment under the sentence from 11 December 2007 to 14 December 2007