Cases and authorities

CRIMINAL LAW - sentence appeal - robbery with offensive weapon and wounding - whether error in assessing the relevance of the applicant's objective case - whether failure to give proper weight to guilty plea

PROCEDURE - Costs - Whether widow residuary beneficiary in application by children of the deceased under the Family Provision Act 1982 should have an order for costs out of the estate - Executor represented and seeking to uphold the will - Draft orders containing costs order in her favour agreed in by other parties

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - contested proceedings for probate - whether discovery to be ordered

EVIDENCE – Expert evidence – expert witness code of conduct – where late affidavit complies with expert witness code but earlier does not – affidavit evidence – whether expert’s affidavit is “report” or “oral evidence” – held, it is “oral evidence” – dispensing with strict requirements of code.

CORPORATIONS - examination by liquidator - whether court should entertain application for payment made by examinee before examination complete - whether evidence of co-operation by liquidator with outside party indicates arguable case of abuse of process - whether s.536 is appropriate vehicle for abuse of process claim against liquidator - s.536 procedure discussed

FAMILY LAW & CHILD WELFARE - Child welfare other than under Family Law Act 1975 - adoption - application for consent dispense orders with respect to Korean natural parents and Korean guardian of child - whether consent of natural parents to be dispensed with - "reasonable inquiry" for the purpose of deciding whether to make consent dispense order - whether consent dispense order with respect to Korean guardian necessary - application of Immigration (Guardianship of Children) Act 1976 (Cth) to child who enters Australia with intending adoptive parent

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve status quo and property pending determination of rights - Mareva injunctions - Other matters - Order to pay money into Court.

Defamation - comment by a stranger - question whether the matter published was published as a statement of fact or as comment - if as comment, whose comment - if not the stranger's words, not the stranger's comment. Defamation - damages.

CONTRACT - life insurance policy - insured suffered mental illness - payments by insurer stopped after 2 years - whether insurance policy had been amended so as to limit payment of benefits to 2 years - whether intent of the parties objectively ascertained was that the variation took effect - whether variation made in accordance with Life Insurance Act (1995) (Cth). - ESTOPPEL - whether insurer estopped from asserting the variation of the policy - whether there was an implied representation that there were no significant limitations or restrictions on payments under the policy. - TRADE PRACTICES - whether insurer's conduct in providing a statement which did not itself refer to the 2 year limitation applying to payments made in relation to a mental illness was misleading or deceptive - whether insurer was in breach of the Trade Practices Act 1974 (Cth) for failing to advise the insured that the insurance policy had been so amended

EVIDENCE - PRACTICE AND PROCEDURE - Review of Registrar's decisions - nature of review - whether and to what exent nature of hearing de novo - subpoenas and notices to produce - setting aside - relevance - test of relevance - onus of establishing relevance - access - confidentiality - whether access should be limited to legal representatives - relevant considerations.

BUILDING AND CONSTRUCTION - progress payments - Building and Construction Industry Security of Payment Act - claim for interlocutory injunction pending hearing of claim for declarations that purported adjudication void and of no effect - serious question to be tried - plaintiff's ability to seek setting aside of any judgment obtained under the Act not prejudiced - balance of convenience favours defendant - interlocutory injunction refused

COSTS - apportionment - whether apportionment should be made reflecting success and failure of parties on particular issues - whether result of cross-claim should be included in apportionment - whether results of subsequent judgments in proceedings should be reflected in apportionment - indemnity costs - whether indemnity costs should be awarded - whether oral Calderbank offer effective - whether subsequent judgments would interrupt effect of indemnity costs - no question of principle

Power to increase period for an appeal - special circumstances - threshold question of prohibition.

PRACTICE AND PROCEDURE - Adjournment - relevant precedent under appeal in Federal Court - whether trial should be adjourned pending outcome of appeal in Federal Court.

Limitations of actions - Limitation Act 1969 s 60G, s 60I - Knowledge of plaintiff as to injuries, their nature and extent and connection with the defendant's act or omission - whether extension would result in significant prejudice to the defendant.

Prerogative relief - whether Commission had jurisdiction to determine claims for relief under s 106 of the Industrial Relations Act - claims were no more than to damages for breach and termination of a contract - dispute over terms of contract - claims to vary contract if terms as asserted by claimants - and even if contract as alleged by opponents - open to find unfairness - no sham in the proceedings - no presumption Commission would fail to recognise limitation in jurisdiction if it arose - inappropriate to parse out possible aspects not within jurisdiction - relief declined.

NEGLIGENCE - police officer trips on pothole in driveway of police station on the way to police car - driveway in poor condition - whether different test because the employer was the State of New South Wales - whether budgetary constraints precluded finding of negligence - whether police officer guilty of contributory negligence

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Need to fund litigation - Whether funds available to party from other sources.

EVIDENCE - admissibility of business records - admissibility under s 1305 of the Corporations Act - admissibility of judgment - discretionary exclusion of evidence - no issue of general principle

CORPORATIONS - application by ASIC for declarations of contravention of various investor protection provisions - court invited to make orders by consent on basis of statement of agreed facts - whether agreed facts warrant making of declarations - whether court should give effect to parties' agreement as to penalty

REAL PROPERTY - CONTRACT - TITLE - The obligation in an "open contract" to transfer land carries implied term that land shall be free of encumbrances - SPECIFIC PERFORMANCE - Obligation to execute further deed - how performed.

PROCEDURE [76] - Supreme Court procedure - Jurisdiction and generally - Jurisdiction - Overriding purpose - Matter sought to be relied on late in proceedings - Whether reliance ought be allowed.

Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all information concerning his financial and material circumstances. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claim of Defendant. Notional estate. Importance of not interfering with reasonable expectations in relation to property.

Production of documents and information - meaning of "produce" as used in s21 Road Transport (General) Act 1999 and cl 63 Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999 - whether failure to produce documents and information is offence of strict liability or absolute liability - whether Proudman v Dayman "defence" available.

EVIDENCE [24] - Admissibility and relevancy - Facts relevant to facts in issue - In general - Facts of too slight a relevance to assist Court.

PROCEDURE [566]- Costs- Winding up proceedings- Just and equitable ground- Whether should depart from usual rule that costs come out of assets.

EVIDENCE - admissibility of documents and discretionary exclusion - creditor communications - application of exclusionary criteria enunciated in ASIC v Rich [2005] NSWSC 491 - no issue of general principle

APPEAL - parties bound by conduct at trial - COMPULSORY ACQUISITION - no question of principle - EVIDENCE - agreement between experts defining issues - whether binding on Court - D

PROCEDURE - interlocutory proceedings in which costs reserved - reserved costs not dealt with in the order finally disposing of the proceedings - reserved costs orders forgotten - lengthy delay -courts discretion as to costs

EVIDENCE - expert opinion evidence - admissibility of forensic accounting expert's supplementary evidence - no issue of general principle

CORPORATIONS - application by ASIC for declarations of contravention of various investor protection provisions - court invited to make orders by consent on basis of statements of agreed facts - whether agreed facts warrant making of declarations - whether court should give effect to parties' agreement as to penalty

Application to set aside default judgment - dismissal order made by Registrar (by consent or unopposed) - defendant brings application for review - attempt to turn review into a fresh hearing of application relying on different material - denial of natural justice - the nature of the review process and the admission of further evidence - it is received to facilitate the review process.

CONTRACT - interpretation of building and construction contract AS4300-1995 - whether statutory declaration produced by builder in support of progress claim was false - effect of falsity of statutory declaration - whether power of superintendent to certify progress claim extends beyond termination of contract - whether builder had accrued right to progress payment - whether termination was lawful - whether show cause notice adequate - whether there was a substantial breach - COSTS - personal costs order against company director and shareholder under s148B of the District Court Act 1973 (NSW) - factors relevant to discretion to make costs order against a non-party

Costs - Bullock or Sanderson order - general discretion as to costs - plaintiff liable to pay first defendant's costs - first defendant's costs increased because of additional hearing time due to second defendant's conduct - whether second defendant to pay the increased costs - ND.

CONTRACT - fraudulent purchase of car - finance obtained for purchase of car through two separate car dealers from two separate financiers - whether valid contract between the fraudulent purchaser and vendor - whether a contract formed between the financier and vendor evidenced by invoice and payment of the amount of the invoice - whether exclusion clause in contract excluding "all warranties and conditions" effectively excluded warranty as to title - EVIDENCE - further evidence - whether certificate of conviction of fraudulent purchaser in relation to the transaction should be tendered on appeal under s75A of the Supreme Court Act 1973

CONSTITUTIONAL LAW - whether Chapter III of the Commonwealth Constitution prevents the conferral of criminal jurisdiction on the Industrial Relations Commission - CRIMINAL LAW - criminal standard of proof - whether applied - OCCUPATIONAL HEALTH AND SAFETY - appeal against acquittal - whether s197A of the OHS Act properly applied - Occupational Health and Safety Act 1983, s15(1), s33(2), s53 - ADMINISTRATIVE LAW - privative clause - inviolable restraint - jurisdictional error - error of law on the face of the record

ENVIRONMENT AND PLANNING - Existing use rights - Whether use of land was an "existing use" within meaning of s 106(a) Environmental Planning and Assessment Act 1979 - Characterisation of use of land - Level of particularity with which use to be identified - Whether use prohibited under Local Environment Plan - Construction of definition of "dwelling house" in LEP - Single structure containing two domiciles with shared common internal walls - Whether land being used for purpose of one or more "dwelling houses" as defined - Whether definition of "dwelling house" confined to detached housing - Whether definition of "building" in s 4 Environmental Planning and Assessment Act applicable

NEGLIGENCE - employee - non-delegable duty of care - injury occurring on premises of third party in Thailand - casual act of negligence - training in safety and risk assessment - causation. D

CONSTITUTIONAL LAW - whether Chapter III of the Commonwealth Constitution prevents the conferral of criminal jurisdiction on the Industrial Relations Commission - application of the Kable doctrine. - CRIMINAL LAW - criminal standard of proof - whether applied - OCCUPATIONAL HEALTH AND SAFETY - appeal against acquittal - proper construction of ss 50, 53 of the OHS Act - whether s197A of the OHS Act properly applied - ADMINISTRATIVE LAW - privative clause - inviolable restraint - jurisdictional error - error of law on the face of the record

UNCONSCIONABILITY - family owned and operated company in perilous financial condition - directors of company unaware of extent of existing liability to financier - financier concerned that existing securities unenforceable - whether financier acted unconscionably in shoring up security position when business requested further financial accommodation - ECONOMIC DURESS - whether 'illegitimate pressure' was exerted by financier on the business - whether a finding of economic duress should be available where conduct complained of was not unlawful or unconscionable

COSTS – Order for security for costs – Dismissal of appeal for failure to comply – Dismissal for want of prosecution – Supreme Court Act 1970 s 46(1) – Supreme Court Rules 1970 Pt 51 r 24 – Uniform Civil Procedure Rules 2005 r 42.21(3)

SUCCESSION [4]- Two wills- Later will made when capacity of testatrix questionable- Need for will to be proved in solemn form and parties adversely affected to be cited- Whether testatrix had capacity at time of making later will.

SUCCESSION - Family Provision and Maintenance - Failure by testator to make sufficient provision for applicants - Able-bodied adult son and daughter - Widow with independent means succeeding to matrimonial home by survivorship - Net estate in excess of $1.6 million before costs at trial - Legacies to children of $50,000 each.

CORPORATIONS [96]- Director's remuneration- Director did substantial work as employee- Whether director entitled to remuneration for work done as employee. CORPORATIONS [144]- Interlocutory application for preservation of company's assets prior to oppression suit- Articles incorporated Table A of Companies Act 1961- Articles required provision of audited balance sheets to members- Whether Articles construed at date they are entered or by statutory requirements from time to time. CORPORATIONS [288]- Company trading profitably- Whether provisional liquidator should be appointed.

CRIMINAL LAW - appeal against sentence - supply of drugs - money laundering - possessing a firearm - whether sentencing judge erred in respect of the discount for the plea of guilty

Contract - Purchase of hotels - Contractual warranty that information attached as annexure was true and correct, complete and accurate and not misleading in any respect for period specified - Proper construction of warranties - Interpretation of words "sales" and "gross profit percentage" - Principles of construction - Suggested inconsistency as between (1) United Kingdom and High Court of Australia decisions and (2) two particular High Court decisions, as to width of admissible background which would have been reasonably available to the parties - Constructive knowledge principle - Finding that subject information was being warranted as being accurate as information contained in particular document - Whether contractual warranties were breached - Finding that warranty was that information was accurate as a record of the key performance indicators produced within the system operated by vendors - Causation - Post hoc ergo procter hoc - Purchaser claims that purchase price was determined by a formula comprised of one variable and one constant [variable being EBITDA for the hotels, constant being an earnings multiplier] - Purchaser claims as damages the difference between the value of the hotels as warranted and their true value to the purchaser - Test said to include element of subjectivity - Principles applicable as to quantum of damage - Novation - Sale contracts identifying purchaser as Macquarie Bank as promoter of defendant - Defendant incorporated after date of sale contracts - Corporation unable by adoption or ratification to obtain benefit of a contract purporting to have been made on its behalf before it came into existence - Whether purchaser succeeded to novated rights and obligations - Proper construction of interrelated contractual documents

CONTRACT: - construction - partnership/joint venture agreement - rights and duties of the parties