Cases and authorities

ADMINISTRATIVE LAW - application for prerogative relief arising from decision of Transport Appeal Board - Plaintiff dismissed from employment with Rail Corporation NSW - Plaintiff made false statements in process of application for employment with Rail Corporation NSW - false statements concerning alleged previous employment and omission to reveal prior employment with Waterways Authority NSW and dismissal by that Authority for misconduct - grant of leave for Plaintiff to be represented in Supreme Court by person who was not legal practitioner - no error of law - relief refused

CORPORATIONS - winding up - application by ASIC for winding up on ground of insolvency - defendant ASX listed company - administrators appointed shortly before hearing of interlocutory application for appointment of provisional liquidator or receiver - whether proceedings should be adjourned

CORPORATIONS - winding up - creditors' voluntary winding up - fixing remuneration of liquidators - where committee of inspection does not pass resolution fixing remuneration - whether liquidator entitled to direction under Corporations Act 2001 (Cth), s511 - by whom should remuneration be determined

WORKERS’ COMPENSATION – Claim for common law damages – Whether worker entitled to commence within 6 months of injury – Legislative objective of delaying commencement of proceedings – Exception where liability denied – Whether employer had denied liability – Whether denial “unequivocal” – Workers’ Compensation Act 1987 s 151C

CONVEYANCING - termination of contract - whether contract for sale of land validly terminated - no question of principle

Vicarious liability

PROCEDURE – representation - solicitors – ceasing to act – effect of continuing to act after expiry of notice of intention to cease – further notice required - PROCEDURE - Supreme Court procedure - procedure where party is absent at trial - TRADE PRACTICES - consumer protection – misleading or deceptive conduct – representation as to future matter - CONVEYANCING – vendor and purchaser – deposit – recovery of deposit – where misrepresentation as to availability of finance.

Family Provision Claim by a daughter in respect of an estate the whole of which passed to her brother.Plaintiff's sister appointed executor. Thus all necessary parties to the action. Small estate and a legacy ordered in favour of the plaintiff. Defendant trustee's costs reduced because of unnecessary involvement in action given the role of the other parties.

No appeal to Supreme Court from Part 15A proceedings - relevant considerations for the granting of leave to appeal - decision on matters of practice and procedure.

CRIMINAL LAW AND PROCEDURE - SENTENCE - DRUG DEALING - WHETHER SENTENCES EXCESSIVE - PARITY

TORT - Negligence - Nuisance - Pedestrian slipping on mud on footpath - Whether lack of care for his own safety defeats claim in negligence - Whether person carrying out operations on adjoining land that caused the mud to escape liable in nuisance - Whether owner also liable - Whether owner should have known that nuisance occurring.

PROCEDURE - leave to appeal against denial of extension of limitation period to bring an action for noise-induced hearing loss claimant contends he suffered in the course of his employment between 1954 to 1978 - whether the absence of a particular witness was significantly prejudicial to the opponent - whether the primary judge failed to have regard to other available evidence.

PROCEDURE - leave to appeal - claimant contends he suffered continued negligence with respect to his employment between 1964 to 1973 resulting in hearing difficulties - whether extent of unavailability of evidence and witnesses regarding factual issues in dispute renders trial unfair were limitation period extended - whether claimant's delay in bringing action, once aware of his rights, adequately explained.

RECEIVERS - remuneration - approval of remuneration of Court appointed receiver

WILL PROBATE AND ADMINISTRATION - remuneration and costs of special administrator - whether costs of appointment of administrator pendente ite be paid by the unsuccessful party - remuneration and costs to be paid out of the estate

PRIVATE INTERNATIONAL LAW - Stay of Proceedings - Forum non conveniens - appeal from Master - whether proof of actual vexation or oppression required - whether vexation or oppression presumed where connecting factors show forum to be "clearly inappropriate" - whether in stay application court should discount potential vexation and oppression as conjecture - relevance of expiry of foreign limitation period - relevance of foreign defendants being insured in natural forum but not in local forum - appeal allowed and stay granted on condition that extension of foreign limitation period not opposed.

CORPORATIONS - winding up - termination of winding up - evidence usually required

CORPORATIONS - winding up - committee of inspection - application by liquidator for leave to enable two members of committee of inspection to accept a gift for their services rendered

NEGLIGENCE - workplace negligence - employer's duty of care - psychiatric injury - appointment as Team Leader - victimisation, harassment, humiliation, abuse by co-workers - actions and inaction of supervisor - vicarious liability of employer - foreseeability of risk of injury - preventative measures - enquiry - reliability of plaintiff's testimony - foreseeability of injury - reasonably practicable means - causation - EVIDENCE - business record - s69(3)(a) Evidence Act - discretion under s135. (ND)

CRIMINAL LAW AND PROCEDURE - SENTENCE - MANSLAUGHTER (3 COUNTS) - AND AGGRAVATED DANGEROUS DRIVING CAUSING GRIEVOUS BODILY HARM - ERROR IN ASSESSING SENTENCE AS IF ONE OFFENCE CAUSED THREE DEATHS - DISTINCTION BETWEEN MANSLAUGHTER AND OFFENCE CONTRARY TO s.52A OF CRIMES ACT - CROWN APPEAL - INADEQUACY OF SENTENCES - GROSS CULPABILITY OF OFFENDER - RESPONDENT RESENTENCED

PRACTICE AND PROCEDURE - application for summary judgment - money owed pursuant to guarantee - no real issue to be tried

PROPERTY - FAMILY LAW - de facto relationship - Property (Relationships) Act 1984 - statutory discretion to adjust property interests pursuant to s20 - where one partner continued to live rent-free in family property after separation - where subsequently asked to leave the property - where partner deferred instituting proceedings - time limit under s18 - discretion to extend time - forensic prejudice from delay - hardship - indemnity costs set aside - failure to accept settlement offer - offer made too late in proceedings. (ND)

COSTS - security for costs - where a corporate appellant is in liquidation - s1335(1) Corporations Act 2001 (Cth) - applicability to appeals - whether plaintiff includes appellant - Pt 51 r16 Supreme Court Rules - whether power to order security is engaged - special circumstances - mere impecuniosity - presence of a litigation funder - where co-appellant is solvent - highly likely that costs will be ordered against both appellants - refusal of discretion - delay. (D)

VICTIMS COMPENSATION - injury in the course of duty as a police officer - Victims Compensation Act 1987 - appeal to the District Court - global award - absence of transcript of judge's reasons - evidentiary void - s12D, s12E Police Regulation (Superannuation) Act 1906 - gratuity - construction of s12E - permanent impairment compensation - compensation for pain and suffering - rule against double compensation - evidentiary onus - where shown that money was paid it is for the recipient to show that the money was not received in compensation for the loss. (D)

CORPORATIONS - Application to set aside statutory demand - Where two demands for half the debt each were served on parties jointly liable for the debt - Whether a ground for setting aside the demands is that demands were in terms that debtors are severally liable as opposed to jointly - Where affidavit amending amount of claimed offset filed after 21 days - Corporations Act ss 459G, 459F, 459J - Held that claiming less than the actual debt is not a defect justifying the setting aside of a demand - Claimed offset is too small and does not affect demands - Affidavit filed after 21 days falls foul of principle in Graywinter - Payment of amount claimed in one demand will satisfy both.

Appeal on question of law from the Licensing Court - whether the Court had jurisdiction to deal with the application to remove an off-licence (retail) as an onconditional application - whether Court erred in exercising its jurisdiction to uphold a public interest objection to the application.

REVIEW OF DECISION BY REGISTRAR - REFUSAL OF EXTENSION OF TIME FOR APPEAL - SMALL CLAIMS DIVISION OF LOCAL COURT - STATUTORY LIMITATION ON AVAILABLE GROUNDS OF APPEAL - NO PROSPECT OF ESTABLISHING LACK OF JURISDICTION OR DENIAL OF NATURAL JUSTICE - GRANT OF EXTENSION FUTILE

EQUITY - charging clause in guarantee - claim by creditor for declaration of equitable interest in land - no question of principle

Insurance - application to join insurer as additional defendant pursuant to s6 Law Reform (Miscellaneous Provisions) Act 1946 - arguable case for indemnity under policy - was claim covered by insurance clause - did claim come within exclusion - meaning of "professional advice".

Charities - trust for teaching of Esoteric Christianity - whether charitable - effect of Charitable Trusts Act 1993 - test for validity of gift to charity not whether the trustees are acting in accordance with the trust but how they ought to perform it.

LOCAL COURT - INSTITUTION OF PROCEEDINGS BY COURT ATTENDANCE NOTICE - AMENDMENT SOUGHT IN LOCAL COURT SUBSEQUENT TO ISSUE OF SUPREME COURT SUMMONS - PREMATURE - SOME RELIEF GRANTED BY CONSENT - BALANCE SUMMONS STRUCK OUT

CRIMINAL LAW - Crown appeal against sentence - murder and maliciously inflict grievous bodily harm - assessment of the objective seriousness of the offence - weight given to subjective circumstances - whether there was a failure to accumulate sentences - whether the finding that the respondent had not thought of the possibility that the shotgun might be discharged was inconsistent with the verdict of the jury

CRIMINAL LAW - applicant seeking leave to appeal against sentence of life imprisonment - murder - whether sentence manifestly excessive - excess weight placed on maintenance of innocence where no community protection imperative - uncertain prospects of rehabilitation applicant maintains innocence

appeal against severity of sentence - maliciously inflicting grievous bodily harm whilst in company - plea of guilty - special circumstances and reduction in non-parole period - favourable subjective circumstances of applicant - subjective factors giving rise to the offence - principles of parity in sentencing co-offenders - co-offender charged with less serius offence - whether parity considerations in sentencing apply to disparities in charging process - whether sentence imposed was manifestly excessive - planned, unprovoked and vicious offence

Criminal law - sentence - deemed supply of cocaine and cannabis - utilitarian value of the plea - strength of the Crown case - erroneous reference to the maximum penalty - error as to the wrong maximum penalty.

CRIMINAL LAW - appeal against conviction and sentence - sexual intercourse without consent and maliciously inflict actual bodily harm - unreasonable verdict - exclusion of evidence - miscarriage of justice

APPEAL - fresh evidence - additional evidence - requirements for in appeal from conviction for contempt of Court - EVIDENCE - circumstantial - repetitive conduct - EVIDENCE - fresh evidence - additional evidence - requirements for in appeal from conviction for contempt of Court - ND

PROCEDURE - Supreme Court Procedure - Power of Attorney executed by wrong principal by mistake - Whether attorney should be appointed tutor of incommunicant principal to make application for alteration of the instrument under the Conveyancing Act 1919, s 163G or to confirm power to do an act under the Powers of Attorney Act 2003, s 31 - Whether Court should exercise inherent power to rectify the instrument - Whether antecedent contract necessary - Whether the power to rectify extends to deeds poll

CORPORATIONS – Winding-up – Application to stay or terminate winding-up of defendant company – Company’s total liabilities substantially exceed total assets – Where evidence as to company’s financial position is incomplete and otherwise unreliable – Corporations Act s 482 – Held that ability to meet current liabilities does not suffice to justify the order – Application dismissed.

CONTRACTS - Illegality - Champerty - Suit by litigation funder seeking to enforce agreement which defendant alleges is champertous - Contract to fund litigation in return for percentage of litigation proceeds - Litigation conducted in name of individual plaintiff who held chose in action on trust for company - Funding agreement entered into by administrator of company which was beneficially entitled to the cause of action - Agreement terminated and new agreement made with legal owner of chose in action - Administrator consented to direction for payment of share of proceeds of judgment to litigation funder - Whether new agreement within statutory exception to champerty - Whether litigation funder had legitimate interest in new agreement by reason of preceding enforceable agreement with administrator - Construction of new agreement - Held new agreement enforceable.

Equity. - Trusts. - Real property purchased by parties as joint tenants. - Source of funding of purchase price. - Death of one joint tenant. - Whether legal title reflects beneficial interests of parties. - Whether interest of any party was held on either an express trust or a constructive trust for one or more of the other parties. - Family Law. De facto relationship between Plaintiff and First Defendant. Respective contributions of Plaintiff and First Defendant to acquisition, conservation and improvement of property and in capacity of homemaker. - Whether interests of those parties should be adjusted.

MORTGAGES - remedies of the mortgagee - unregistered second mortgagee of Real Property Act 1900 land - availability of power of sale out of court - whether section 103 Conveyancing Act 1919 permits Court to make order for sale - whether Court has equitable jurisdiction to make order for sale - whether service of notice under section 57(2)(b) Real Property Act or section 111(2)(b) Conveyancing Act a precondition for exercise of Court's power of sale - whether Court can make order for sale in absence of first mortgagee - whether Court can make order for sale of entire interest in land, rather than of the land subject to the interest of the first mortgagee - need for evidence of value of property - need for evidence of amount owing to first mortgagee - matters to be provided for in order for sale - whether unregistered second mortgagee of Real Property Act land entitled to order for possession and writ of possession - whether such a mortgagee entitled to specific performance of covenant to deliver possession upon default - APPEAL AND NEW TRIAL - admission of further evidence - whether order for summary judgment is a final order - whether special circumstances required before further evidence admitted on an appeal from summary judgment - PENALTY - clause in mortgage agreeing to accept lower rate of interest if interest promptly paid - whether a penalty - PROCEDURE - Supreme Court procedure - power to make orders in Chambers - power to make orders on basis that reasons will be delivered later

Family Provision. Application by daughter omitted from will. Order for modest legacy. No matter of principle.

PROCEDURAL FAIRNESS – negligence action – injury suffered while getting off exercise bike during physiotherapy – inconsistent versions from plaintiff and physiotherapist – credibility conflict – issue of the capacity of the physiotherapist to handle the plaintiff – procedural unfairness – where trial judge’s finding lay outside the particulars and the matters raised at trial – where cross-examination was insufficient to raise the issue of weight discrepancy – order for new trial. (ND)

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether Deed for Expert Determination by Neutral Expert was terminated - Deed required expert to visit subject property for a view - Gates to property padlocked limiting view to exterior - Whether entitled to terminate for failure of expert to carry out a viewing - Expert suggested parties consider settlement - Expert considered reports by experts for both parties as required under deed - Whether entitled to terminate for breach of term that expert act as an expert and not as an arbitrator - Whether entitled to terminate for breach of term that expert notify any circumstance adversely affecting his capacity to act independently or impartially - Unnecessary to decide whether estopped from asserting a failure to take a view or whether relief from termination should be granted for unconscionable conduct - No other matters of principle

PRACTICE AND PROCEDURE - Appeal from Master - Transfer of proceedings from District Court to Supreme Court - Leave to proceed against a company in liquidation - Where defendants in District Court proceedings claim a set-off against debt sought to be recovered by liquidator - Grounds of appeal discussed -Discretion exercised anew - Corporations Act ss 500(2), 553C - Master's decision upheld.

EQUITY - interlocutory injunction - whether serious questions to be tried - where balance of convenience lies - relevance of potential hardship to third parties - CORPORATIONS - rights of members - class rights - distinction between variation of rights of class of members and variation of composition of class of members - ESTOPPEL - whether unambiguous representations made - whether relied upon - CONTRACT - "process contract" - whether formed - whether legal relationships intended