CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – APPLICATION TO SET ASIDE DEMAND – GENERALLY – where application to set aside statutory demand relating to costs order – where costs assessed in amount of $68,621.52 – where appearance entered on behalf of a shareholder of applicant – where appearance also entered on behalf of sole director of applicant – whether applicant had standing to bring application – where statutory demand posted to applicant’s registered address on 16 August 2011 – where evidence that applicant’s director received statutory demand on 19 August 2011 – where application and supporting affidavit filed on 9 September 2011 – whether originating process and supporting affidavit filed and served within time – whether applicant had an offsetting claim – whether some other reason why demand should be set aside

INSURANCE – CLAIMS GENERALLY – REFUSAL – GENERALLY – where plaintiff conducted business as a lender of short to medium term loans – where plaintiff was insured by defendants under successive mortgage indemnity and impairment policies – where a number of the plaintiff’s borrowers defaulted under their loans – where plaintiff sold property securing those loans and a loss resulted – where defendants refused to indemnify plaintiff for amounts representing interest and fees paid by borrowers to plaintiff – where policy excluded cover for fees or charges payable to the plaintiff and any amounts advanced “for” the payment of interest – where plaintiff required interest and fees to be pre-paid by borrowers – where borrowers at settlement directed the plaintiff to distribute amounts for pre-paid interest and fees from the sums lent by the plaintiff – whether plaintiff had advanced sums “for” the payment of interest and fees – whether defendants entitled to refuse indemnity for amounts representing interest and fees

INSURANCE – CLAIMS GENERALLY – where insurer delays in paying undisputed amounts that were payable under mortgage indemnity and impairment policies – whether breach of contract proven – whether damages should be assessed at rate of 10 per cent simple interest per annum

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where second respondent exercised jurisdiction as an adjudicator under the Building and Construction Industry Payments Act 2004 (Qld) (“the Act”) to decide that the applicant should make a progress payment to the respondent – where contract required the applicant to perform clear and grub works, topsoil stripping and placement at project site – where work actually performed was the excavation and removal of timber and topsoil from the site – whether the work carried out for which payment was sought was “construction work” – whether the work carried out fell within the exclusion under s 10(3)(b) of the Act

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR RELATING TO FACTS – where the appellant applied for a statutory order of review of the respondent’s decision to refuse his application for parole – where the appellant argued that the respondent’s decision was based upon a number of factual matters which did not exist – where the appellant argued that the primary judge erred in finding that the respondent’s decision was not based upon a failure by the appellant to respond to the parole board’s concerns in relation to his relapse prevention plan, the false premise that the appellant’s relapse prevention plan had not changed from previous parole applications, or a belief that the appellant displayed “addictive behaviour”, and that there was no denial of procedural fairness – where the appellant also argued that the primary judge failed to rule upon his argument that there was no evidence to substantiate a belief that the appellant was not “versed” in a relapse prevention plan – whether the primary judge erred in finding that this ground of review was not established

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING POLICY AND MERITS OF CASE – where the appellant argued below that the Board acted in accordance with policy and without regard to the merits of his case because they required him to be given a lower security classification and to remain in residential accommodation as a precondition for parole being granted – where the appellant argued that the primary judge did not rule upon his argument that the respondent failed to consider the merits of his relapse prevention plan, and that the primary judge did not refer in any substantial manner to his argument that his security rating was irrelevant – where the appellant argued the primary judge erred in finding that the respondent did consider the appellant’s submissions that he had been unfairly treated by management at Wolston Correctional Centre – where the appellant argued the primary judge failed to consider his argument that a favourable psychologist’s report demonstrated that the respondent failed to consider the merits of his case – whether the primary judge erred in finding that this ground of review was not established

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – BAD FAITH – where the appellant argued that his previous parole applications displayed a change in approach by the respondent in relation to relapse prevention planning and residential accommodation requirements, and varying emphasis on his breach history, which suggested that the respondent was acting in bad faith – where the primary judge found that the respondent had not changed its position but was being more explicit about the matters and that any change in emphasis was not sufficient to infer bad faith – whether the primary judge erred in finding that this ground of review was not established

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of arson and attempted aggravated fraud of his insurer – where the appellant's counsel at trial told him on numerous occasions that the prosecution case was not strong and he was likely to be acquitted even without an expert report gainsaying the expert opinions of prosecution witnesses as to the cause of the fire – where the appellant on appeal adduced an expert report disputing the prosecution expert evidence – where the appellant contended that had his lawyers at trial advised him to obtain an expert report and to call an expert witness he would have done so – whether the decision not to obtain an expert report was an informed decision made on the basis of competent legal advice – whether there has been a miscarriage of justice arising from the incompetent conduct of the appellant's legal representatives at trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where a juror claimed to be psychic and communicated her abilities to the speaker of the jury – where the trial judge discharged the juror because of the risk that she may be influenced by what she apprehended as another power instead of solely by the evidence before the court – where the trial judge found there was no evidence that any juror apart from the speaker had been told of her psychic powers or her conclusion about the case based on those powers – where the trial judge determined that there was no risk that the balance of the jury could not return a verdict according to the evidence – whether the trial judge erred in failing to discharge the whole of the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant argued that the trial judge erred in directing the jury that the appellant's account was a lie demonstrating a consciousness of guilt – where the appellant on appeal adduced an expert report supporting the appellant's account as to the cause of the fire and gainsaying the prosecution expert evidence – where the appeal was allowed – whether in the event of any re-trial this direction would be required