Cases and authorities

PARTNERSHIP [37]- Application for appointment of interim receiver to partnership- Question as to whether partnership existed- Partnership dissolved- Whether where partnership is dissolved there is presumption that receiver be appointed as matter of course- Prima facie case must be made out for appointment- Discussion of factors involved in appointment of receiver to dissolved partnership.

REAL PROPERTY: - Failure to complete contract for the sale of land - specific performance - defences to specific performance - impossibility - utility

CRIMINAL LAW - Crown appeal against sentence - sex offences outside Australia - multiple victims - multiple offences - whether sentencing judge failed to provide an adequate standard and level of punishment - whether sentence failed to adequately reflect the criminality of respondent's conduct, the elements of deterrence and the aggravating features of this offending

PROCEDURE - Costs and interest - Whether liquidation of plaintiff and delay should reduce interest - Apportionment of costs where plaintiff partially successful.

CONTRACT - repudiation - Signage Rights Deed created contractual licence for display of advertising for 10 years and cl.7 obliged Licensor, if the Licensor sold the land, to ensure that the purchaser entered into an agreement with the licensee in terms which preserved the licensee's rights and obligations - the licensor agreed to sell the land, and later transferred the land to a company associated with the purchaser, without ensuring that purchaser or transferee made any arrangement with the licensee - licensee treated this conduct as repudiation, accepted it and ended its use of the Signage - later about five weeks after transfer and three weeks after acceptance, licensor and transferee submitted form of Novation Deed which licensee refused to execute: HELD, the acceptance of repudiation was effective - Decision relates to instant facts and documents only.

LIABILITY - Employee of sub-contractor, a gyprock fixer, injured his back on building worksite where both contractor and sub-contractor were engaged in constructing gyprock partitions and ceilings – whether contractor so involved in injured respondent employee’s work, either directly or through his actual employer’s supervisor, as to be subject to a non-delegable duty of care to that employee - and whether that duty breached in the circumstances – whether TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47 distinguishable. - BREACH – challenge to factual findings upon which liability based – whether employee supplied with suitable equipment – whether causation made out. - DAMAGES – whether s151Z(2) Workers Compensation Act 1987 applied to reduce damages – whether, according to statutory formula, damages should be reduced by contribution contractor entitled to obtain from sub-contractor, if both found liable.

EQUITY – specific performance – circumstances in which specific performance will be ordered before any breach of contract.

Practice. - Reference by Court. - Adoption of referee's report. - Procedure followed by referee. - Requirement of natural justice. - Whether parties can re-agitate findings of referee.

Tenants in common in equal shares - resulting trust - presumption of resulting trust is rebutted - constructive trust - cross-claim under the Property (Relationships) Act - defacto relationship - plaintiff/cross-defendant had a series of strokes - defendant/cross-claimant performed role of carer - allowance made for need to provide education expenses for 10 year old son - plaintiff/cross-defendant provided the home for the plaintiff/cross-defendant and defendant/cross-claimant - defendant/cross-claimant made substantial contributions as homemaker and parent - allowance made for defendant/cross-claimant's legacy received by her.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – remuneration – payment claim under Building and Construction Industry Security of Payment Act 1999 – application for declarations and injunction to prevent payment claim from being submitted to adjudication on basis that payment claim was not made with respect to a reference date under the contract, or was made with respect to a reference date concerning which another payment claim had already been adjudicated – whether appropriate in principle for court to involve itself in such a question – STATUTES – ACTS OF PARLIAMENT – operation and effect of statutes – Act creating an obligation and providing means for securing compliance with that obligation – whether court intervention in the operation of that means of compliance permissible – TRADE PRACTICES AND RELATED MATTERS – consumer protection – submission by builder under building contract to proprietor of payment claim under Building and Construction Industry Security of Payment Act 1999 – whether submission of payment claim to adjudicator would be misleading and deceptive – whether submission of payment claim to adjudicator would be in trade and commerce

PRACTICE AND PROCEDURE - Application for interest to be paid on costs - Where costs are high and respondent on application was found to be liable to make payments in respect of costs but has failed to do so thus far - Where all matters including costs had been referred to a referee - Whether adoption of referee's report precludes a later application for interest on costs - Other discretionary factors considered - Interest on costs ordered.

EQUITY - equitable estates and interests - equitable mortgage - agreement that loan be "put against" home - RESTITUTION - recovery of money paid to discharge another's debt - when incontrovertible benefit - when obligation to reimburse arises - at law - in equity - COSTS - where party has measure of success but fails on issues left open to better position in related proceedings

Redetermination of life sentences for non-fatal offences - related sexual offences - pleas of guilty - applicant's conduct in custody - completed CUBIT program

CONVEYANCING – Vendor and purchaser – sale of units in unregistered plan – where area of units stated in registered plan differs from area stated in contract plan due to inclusion in latter of wallspace – whether there was a variation or amendment of the strata plan on registration which substantially and detrimentally affected the property to an extent other than minor such as to give rise to a right of rescission under special condition - whether any right of rescission had lapsed – whether special condition implicitly excluded standard condition 28 – whether difference in statement of areas was an alteration to the plan – if so, whether it was other than minor – rule in Flight v Booth – whether there was a misdescription or error in the contract – whether it so affected the subject matter that it might reasonably be supposed that the purchaser might not have contracted at all - whether there was evidence of reliance – damages not awarded as damages do not exceed the deposits for which the vendor must give credit – circumstances do not point to it being unjust or inequitable to permit vendor to retain forfeited deposits.

BUILDING AND ENGINEERING CONTRACTS: - adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) - security for payment - continuation of legal proceedings - INTERPRETATION: - general rules of construction of instruments

Crown appeal - plea of guilty - use of firearm - two offenders in car - victim shot - uncertainty as to which offender fired gun - co-offender's plea of guilty to robbery in company - judge declined to find that gun was used by or with knowledge of respondent - whether finding open after plea of guilty - joint criminal enterprise - whether knowledge of presence of gun implied in plea of guilty - timing of plea - application to withdraw plea - finding that plea entered at earliest possible opportunity - whether finding open - contrition - statutory requirement firstly to set non-parole period and then specify balance of term - whether necessary to determine non-parole period before total term - standard non-parole period - departure from standard non-parole period justified but not explained - Henry guideline for sentencing for armed robbery - offence and offender not within Henry profile - circumstances suggest more severe sentence than Henry guideline - sentence within Henry guideline - subjective circumstances - finding of special circumstances - rehabilitation - principles applicable to Crown appeals - Court's residual discretion in Crown appeals - appeal dismissed in exercise of discretion

Negligence - trip hazard - whether Council had actual knowledge of risk - whether reasonable response was to do nothing - back and elbow injury - whether percentage of a most extreme case excessive - whether adequate reasons for findings of economic loss - turns on facts - ND.

PROCEDURE – Leave to amend defence – Motor accident – Where defendant’s compulsory third party insurer admitted breach of duty – Where breach of duty admitted in defence – Where defendant unable to be interviewed until after defence filed – Leave sought to amend so as to deny liability and plead contributory negligence – Whether interests of justice required withdrawal of admission – Prejudice to plaintiff – Actual or presumptive – Whether adequate explanation for making of admission – Whether admission contrary to actual facts – Motor Accident’s Compensation Act 1999 s 81

CORPORATIONS - whether application for extension of time for compliance with statutory demand is out of time - meaning of "finally determined or otherwise disposed of" - irrelevant that appeal available

Appeal decision of Local Court Magistrate - Dog - Inclosed Lands Protection Act 1901 - Justice is a german shepherd

WILLS, PROBATE AND ADMINISTRATION: Forfeiture under public policy rule – principal beneficiary killing testator – acquittal in criminal proceedings on grounds of mental illness – scope and operation of Act – meaning of “offender” and “unlawful killing” - WILLS, PROBATE AND ADMINISTRATION: application under s 11 of the Forfeiture Act 1995 (NSW) – operation of Part 3 – conduct of offender – conduct of deceased – effect of the application of the rule on the offender or any other person. - EVIDENCE: Admissibility – acquittal in criminal proceedings on grounds of mental illness – admissibility in other proceedings to prove fact in issue – Evidence Act 1995 (NSW), ss 91 and 178.

EVIDENCE - relevance - statement by party of subjectively held intention as to contract formation - such intention not communicated to other party - whether statement may rationally affect assessment of whether contract made

Appeal decision of Costs Assessor - ss 208L & M of the LPA

TRADE PRACTICES - Consumer Protection - Whether misleading and deceptive conduct of HIH Insurance by misrepresentation overtaken by subsequent press statements to the contrary - Whether plaintiff's failure to heed press statements a novus actus interveniens - CORPORATIONS - Winding up - Appeal from liquidators' rejection of proof of debt - Whether claim for damages under Trade Practices Act 1974 (Cth), s 82 for inducement to enter on-market purchase of worthless HIH shares a debt due in a person's capacity as a member and postponed to all other creditors under Corporations Act 2001 (Cth), s 563A - EVIDENCE - Client Legal Privilege - Whether privilege in statement provided to solicitor for purpose of drafting an affidavit to which no reference made in the affidavit is impliedly waived by the reading of the affidavit

NEGLIGENCE – lessor’s duty of care to incoming tenant – residential premises – unsafe steps – content of duty of care – whether duty to put and keep the premises in a state of safe repair – whether duty to take reasonable care to avoid foreseeable risk of injury – dangerous defect – good building practice at time of construction – safety standards at time of tenancy agreement – obvious danger. (D)

INSURANCE - injury to employee - Claim by train guard injured on train - Public transport - Relationship between s 151E of the Workers Compensation Act 1987 (NSW) and Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) - Meaning of "caused by or arising out of" the use of public transport under s 121 of the Transport Administration Act 1988 (NSW). D

ENVIRONMENTAL LAW - PROCEDURE - Pleadings - Whether reasonable cause of action disclosed - Whether pleading otherwise acceptable - Whether summary dismissal of proceedings justified.

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Payment claims - Requirement of identification of work - Consequences of defecient identification - Whether payment claim a nullity - Whether, in absence of a payment schedule, a payment claim pruporting to identify the work can support a cause of action under s.15 of the Act - Whether summary judgment available.

BANKRUPTCY – motion for substitution of appellant – where claimant is assignee of bankrupt appellant’s rights in proceedings – whether trustee’s right to prosecute an appeal is unassignable – where the appeal relates to a claim for money or property by the bankrupt that would be vested in the trustee – election by trustee to prosecute or discontinue appeal – where communication of assignment of right to appeal is tantamount to an election – no discontinuance or abandonment – inability of assignee to pay costs – security for costs – inability of assignee to provide security – whether special circumstances exist. (D)

SUCCESSION [308] – Family Provision and maintenance – Failure by testator to make sufficient provision for applicant – Duty of testator – Duty to children – Application for adult son – No special principle governing – Test to be applied – Application of community standards.

PRACTICE AND PROCEDURE - civil penalty proceeding for compensation and disqualification orders - privilege against exposure to a penalty - application by plaintiff to adduce new evidence during presentation of its case in chief - where occasion for new evidence arose out of cross-examination, and defendants are protected by privilege from disclosure of their evidentiary case - discretionary considerations

CONVEYANCING [191]- Torrens system- Caveat- Extension- Whether caveat should be extended if lodged in breach of contract- Whether injunction sufficient to protect plaintiff's interest instead of caveat.

PROCEDURE - Amendment - late amendment of pleading during trial - whether triable case on proposed new particular - application rejected

MOTION FOR CONTEMPT - failure to comply with subpoena - applicant failed to comply with Pt 55 Supreme Court Rules 1970

PRACTICE AND PROCEDURE - claim for damages in negligence by child held in immigration detention - claim against Commonwealth of Australia and companies operating detention centres - application by Commonwealth for leave to amend Defence - application by Commonwealth for leave to rely upon statement of witness not served in accordance with order of Court - whether decision of Refugee Review Tribunal gives rise to issue estoppel in subsequent civil proceedings - model litigant obligations of Commonwealth - discretionary considerations under the Civil Procedure Act 2005

Criminal Law - Sentencing - Aggravated break, enter and steal - s.112(2) Crimes Act - Flexibility in sentencing - No error of law - Not manifestly excessive - Parity

Plea of guilty - Application to withdraw - Claim that facts disclosed no offence committed - Claim of overbearing claim of abuse of process - Claims rejected - Leave refused

Denial of procedural fairness - magistrate continues hearing after citing defendant for contempt and directing Sheriff’s officers to arrest and remove him from the court and place him in the cells - ruling that the defendant did not intend to participate further in the hearing - ruling not open on the evidence - order striking out defendant’s Grounds of Defence and refusal to grant leave to amend - issue to be added by proposed amendment already being litigated by both parties - no objection by plaintiff to amendment - refusal based on failure of defendant to amend in the early stages of the litigation - State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 applied.

LEGAL PRACTITIONERS – Solicitors – former client seeking to restrain from acting – when solicitor can be restrained – whether breach of confidence sole basis for intervention – whether inherent supervisory jurisdiction available after Prince Jefri – held, it is still available – test for intervention – objective perception of want of independence and impartiality necessitating removal – discretionary considerations

EVIDENCE - expert evidence - expert "safety consultant" - opinions no more than common sense, or speculation not based on training experience or study - report rejected

FAMILY LAW & CHILD WELFARE [161]- Application to quash orders of Children's Court- Director-General applied to Children's Court for child care orders- Court not satisfied with sufficiency of evidence to make order- Dismissed application- Whether superior court should exercise its supervisory or inherent parens patriae jurisdiction to deal with care orders- Parens patriae jurisdiction used in exceptional circumstances where other curial processes inadequate- Whether Children's Court correct to dismiss application because evidence insufficient- Child's welfare paramount- Court's duty is to adjourn rather than dismiss proceedings.

RESTRAINT OF TRADE – breach of confidence – trade secrets – confidential information – contract of employment – employee bound by contract for a period of six months from employee’s departure date within the States and Territories of Australia – whether the restraint is excessive, unreasonable and void – whether the restraint of trade is contrary to public policy and void or is justified by the special circumstances of the particular case – whether the restriction is reasonable having regard to the interests of the parties concerned – where restraint would prohibit the defendant from visiting, contacting or dealing with any former client during the relevant period of restraint – validity of restraint is judged at the time at which the contract is made – from what date does the restraint run – whether last day of employment was last day the defendant was required to work for the employer – whether “last day of employment” was the “departure date” of the defendant – whether the employer, by excusing the defendant from further attendance, accelerated the end date of the defendant’s employment – no payment in lieu of notice – restraint clause is triggered by termination of employment not by cessation of attendance – restraints are reasonable for the protection of plaintiff’s confidential information, and not unreasonable in the interests of the public – unnecessary to resort to the Restraints of Trade Act – no warrant to extend the contractual restraint beyond the term on which the parties agreed.

EQUITY – Remedies – Injunctions – Asset Preservation Order – in aid of potential cross-claim for contribution - in and of proposed third party proceedings under Family Law Act 1975 (Cth) to set aside financial agreement – against third party.

Child sexual assault - Delay between commission of offence and sentence - Rehabilitation

DAMAGES – Previous injury – Whether medical evidence revealed aggravation – Whether diminution in capacity to work – Threshold for award of damages for non-economic loss – Civil Liability Act 2002 - EVIDENCE – Credibility – Reliability of witness – Primary judge’s findings based on video evidence – Whether findings subject to appellate intervention

Limitation of actions - work accident - initial unfavourable advice about proceeding against occupier - evidence coming to light later - primary judge refuses, then later grants extension - principle in Itek Graphix - whether prejudice stemming from unidentified witnesses (ND)