Cases and authorities

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - execution against land under the Torrens system - effect of amendments made to Real Property Act in 1976 - whether writ issued after contract for sale of land is entered affects interest of the purchaser in that land - circumstances in which sheriff can, by sale under writ of execution, sell more than the interest of the judgment debtor in the land - ability of Court to protect by interlocutory injunction interest of purchaser under contract of sale, against possible sale by sheriff under a writ, at a time before the sheriff has effected any such sale - construction of section 112 Civil Procedure Act 2005 - form of interloctuory injunction - JUDGMENTS AND ORDERS - enforcement - execution against land under the Torrens system - effect of amendments made to Real Property Act in 1976 - whether writ issued after contract for sale of land is entered affects interest of the purchaser in that land - circumstances in which sheriff can, by sale under writ of execution, sell more than the interest of the judgment debtor in the land - ability of Court to protect by interlocutory injunction interest of purchaser under contract of sale, against possible sale by sheriff under a writ, at a time before the sheriff has effected any such sale - construction of section 112 Civil Procedure Act 2005 - form of interloctuory injunction

CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - breach of contract - whether termination justified - CONTRACTS - contract formation - exchange of counterparts subject to a condition - whether contract entered - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - provisions as to time - extension of time limited by Notice to Complete - extension by implication from conduct - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - parol evidence rule - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - condition precedent requiring event to happen within a particular time - whether such a condition precedent need say expressly that that time is of the essence - EQUITY - remedies - specific performance - proof that plaintiff ready willing and able to perform

CONVEYANCING - land titles under the Torrens System - caveats against dealings - further caveat claiming same interest as previous caveat - whether of no effect - whether leave to lodge can be granted retrospectively - whether leave to lodge a further caveat should be granted - whether charging clause in building contract creates caveatable interest - whether words in charging clause limiting charge to extent of any court order mean no charge in absence of order - balance of convenience in caveat cases

ROAD TRANSPORT - offence of taking part in race between vehicles on a road or road-related area contrary to s.40(1)(a) Road Transport (Safety and Traffic Management) Act 1999 - whether offence confined to planned or organised races - whether offence extends to impromptu or unplanned street racing - whether absence of approval of Commissioner of Police for race constitutes an element of the offence or an exception or proviso under s.417A Crimes Act 1900.

Criminal law - sentencing - manslaughter - excessive self defence - plea of guilty.

PROCEDURE - costs - where plaintiff, having elected to press interlocutory applications, later agrees to dismissal upon the giving of undertakings previously proferred but not accepted by him

Practice and Procedure - Discovery - Case management - Civil Procedure Act - Uniform Civil Procedure Rules

EQUITY - remedies - injunctions - Mareva injunctions - approach to grant of Mareva relief - whether prima facie cause of action - whether risk of dissipation - relevance of strength and quantum of potential prima facie claim - CONVEYANCING - Vendor and Purchaser - position of parties after completion - merger - whether damages may be claimed after completion for failure to convey unencumbered title.

EVIDENCE - proper scope of re-examination - whether matter the subject of re-examination arose out of cross-examination, or out of prior evidence

REAL PROPERTY - EASEMENTS - imposition of easement by court - drainage easement - reasonable necessity - whether easement reasonably necessary for effective use and development of plaintiffs land - whether proposed use or development of dominant land reasonable - where grant of some easement reasonably necessary for proposed development - where three courses for creation of easement involving different servient properties - where council requirement for development consent included acquisition of drainage easement which would not interfere with trees - where particular proposed easement would interfere with trees - REASONABLE ATTEMPTS - whether plaintiff required to make all reasonable attempts to obtain easements over alternative course - whether plaintiff had demonstrated that all reasonable attempts had been made to obtain easement over alternative course - COMPENSATION - whether defendant could be adequately compensated for imposition of easement - adequacy of monetary compensation for intangible losses - where servient owner intends to sell - factors relevant to assessment of compensation - COSTS - whether s 88K(5) requires indemnity costs order as of course in favour of defendant.

PROCEDURE [112] – Supreme Court procedure – Practice under Supreme Court Rules – Evidence – Other matters – Commercially sensitive information in affidavit – Order for restricted disclosure – Relevant considerations.

Appeal from costs assessor - ambit of appeal - natural justice - deed relied on as costs agreement - executed by others as purported agents for defendant - plaintiff performs legal services - costs assessor finds that defendant did not agree to pay plaintiff's costs - no legal liability because of expiry of relevant limitation period - assessment is not an action in a court.

EQUITY [334] - Equitable remedies - Injunctions - Interlocutory injunctions - Serious question to be tried - Probability of success - Injunction in support of claims in trespass to goods and detinue - No case that plaintiff has possession or immediate right to possession of goods.

CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order for cancellation of certificate of title and issue of new certificate - Certificate of title cannot be located after all possible inquiries.

Industrial accident - Contributory negligence - Assessment of damages

CRIMINAL LAW AND PROCEDURE - SENTENCE - JUVENILE OFFENDER (13 YEARS) - SERIOUS SEXUAL OFFENCES PERPETRATED ON (HALF) SIBLINGS AGED 5 AND 7 - DEALT WITH AT LAW - RELATIVELY SHORT PERIOD OF CUSTODY - NO ERROR IN ASSESSMENT BY JUDGE AT FIRST INSTANCE

Appeal rights in relation to orders under s 2 of the Costs in Criminal Cases Act 1967 - statutory interpretation - meaning of word "trial" in s 2 of that Act - does word "trial" include "committal proceedings" - does s 2 authorise the awarding of costs if defendant discharged after committal proceedings.

EVIDENCE - facts excluded from proof - whether certificate under section 128 Evidence Act 1995 can be given concerning evidence in re-examination - PROCEDURE - miscellaneous procedural matters - whether certificate under section 128 Evidence Act 1995 can be given in relation to evidence in re-examination

Jurisdiction of Consumer Trader and Tenancy Tribunal of NSW - does Tribunal have jurisdiction to make orders binding the Commonwealth of Australia.

Second appeal by plaintiff - sufficiency of reasons - issues not decided - increase in the quantum of the verdict and costs ordered on an indemnity basis.

CORPORATIONS [20] - Constitution and legal capacity - External litigation - In general - Appearance in court by company - Who may appear.

PRACTICE AND PROCEDURE - applications for leave to adduce additional evidence and amend pleading - discretionary considerations - no issue of general principle

CRIMINAL APPEAL - appeal by Crown against sentence - plea of guilty to manslaughter - objective gravity of the offence - young offenders - whether the trial judge gave excessive weight to subjective factors

ADMINISTRATIVE LAW - Particular persons and bodies - Ombudsman - Immunity of - Where applicant for position in Ombudsman's office appealed decision to appoint another person - Whether immunity extends to matters of internal administration - Ombudsman Act 1974, s32, s35A - Government and Related Employees Appeal Tribunal Act 1980, s20 - STATUTES - Interpretation - Maxim - Generalia specialibus non derogant - Discussion - Purposive Construction - Interpretation Act 1987, s33

EVIDENCE - admissibility of expert opinion evidence - scope of valuation expertise of forensic accountant - whether opinions based on expertise - no issue of general principle

Local Government - sale of land by council for unpaid rates - whether duty of care owed by council to landowner - whether statutory cause of action available - whether liability in negligence - statutory interpretation.

Succession. Family Provision. Claim by widow. Marriage lasted nine years. Financial and material circumstances of Plaintiff. Defendants acknowledge that Plaintiff has been left without adequate provision for her proper maintenance. A beneficiary who asserts a competing claim has a duty to place before the Court as fully and and as frankly as possible all information concerning his financial and material circumstances.

Criminal Law - Sentencing for Hinder Police Investigation

EQUITY [103] - Trusts and trustees - Constitution and classification of trusts in general - Implied trusts - Constructive trusts - Independent of intention - Particular cases - Mother transfers titles of land to son to facilitate borrowing by him on the basis that he will retransfer titles to her when mortgages discharged.

Small business policy - alleged inconsistency between policy and earlier letter - consensus as to exclusion - construction of policy and rectification.

PROPERTY - ownership and possession - equipment leased by plaintiff and sub-let to defendant - claim for possession of equipment made by administrator of defendant company - issue of fact - superior right to possession.

SENTENCING - deemed supply of not less than a large commercial quantity of a prohibited drug - s25(2) Drug Misuse and Trafficking Act 1986 - plea of guilty - Form 1 offences - supply of a single tablet of ecstasy - having possession of an amount reasonably suspected of being unlawfully obtained - standard non-parole period - s21A, s54B(2) Crimes Sentencing Procedure Act 1999 - aggravating factors - mitigating factors - sentencing principles in Way - middle of the range of objective seriousness - special circumstances - accumulated assets. (ND)

ESTOPPEL - Previous decision as to knowledge of State Rail Authority at a particular time - Whether estoppel as to knowledge at a later time - Admissibility of evidence of events at earlier time relevant to question of knowledge

CORPORATIONS [219]- Winding up- Small proprietary company- Provisional liquidator appointed- Breakdown in relationship between directors- Mistrust between directors sufficient to wind up on just and equitable ground. EQUITY [32]- Charge- Specific performance of agreement to create charge- Director of company loaned personal funds to company- Director asserted that loan secured by equitable fixed and floating charge over company's mortgage book- Whether conversations between directors created agreement- Whether mortgage book too variable an asset to attract fixed charge- Discussion of whether specific performance may be granted where content of purported agreement too vague. SUCCESSION [104]- Revocation of probate- Executors were business partners of testator- Executors not co-operating- Estate not fully administered- Testator taken to consent to any conflict arising because of appointment of business partners as executors- Testator's choice of executors not lightly set aside- Borderline case- Revocation granted where one of two executors removed and no real opposition to revocation or choice of new administrator.

INSURANCE - home warranty insurance policy - construction - whether building contract entered into during policy period - whether building owner entitled to indemnity - CONTRACT - rectification of insurance policy - whether common intention established - PROCEDURE - application for judgment under Pt 18, r 3 on defendants’ admissions - whether plaintiff entitled to judgment

CORPORATIONS [72]- Charge- Deceased estate loaned money to company to discharge debt to third party- Loan secured by registered charge- Charge previously held to be void ab initio under Corporations Act, s 267- Whether leave under s 267(3) to enforce can nonetheless be granted nunc pro tunc- Discussion of test for insolvency. EQUITY [14]- Subrogation- Deceased estate loaned money to company to pay out company's debt to bank- Bank's loan secured by registered charge- Estate obtained registered charge- Estate's charge subsequently declared void- Clear intention that estate would receive some form of security for loan- Whether estate entitled to be subrogated to bank's security- Whether estate obtained all security it bargained for- Distinction made between charge that is void ab initio and one that becomes void. EQUITY [32]- Oral charge- Content of charge contained in subsequent deed- Whether oral charge merged in deed. PROCEDURE [490]- Leave to re-open and set aside orders- Certain issues canvassed in defence and submissions at previous hearing- Court disallowed ventilation of issues due to limited time- Orders of previous hearing not yet taken out- Unfair to shut out defendant/cross-claimant for failing to argue issues previously.

PROCEDURE - Uniform Civil Procedure Act - late filing of affidavit - whether affidavit to be read - significance of matter being granted an expedited hearing, and of earlier directions for filing of affidavits - EQUITY - equitable remedies - specific performance - plaintiff ready willing and able to perform - onus - interaction between plaintiff's onus of proof and rules for pleading in Uniform Civil Procedure Rules - PROCEDURE - Uniform Civil Procedure Act - application for adjournment to enable other party to deal with evidence filed late - significance of expedited hearing - significance of pre-trial directions

CRIMINAL LAW - application for leave to appeal against sentence - cross-appeal by Crown - s 7(1A), Criminal Appeal Act - charges of supply prohibited drug - enter dwelling with intent - maliciously inflicting GBH - offences linked in time - whether sentence on drug charge manifestly excessive - whether concurrence of sentence on the other two charges appropriate - whether accumulation of those sentences on sentence for drug charge appropriate - whether overall sentence appropriate to reflect total criminality - whether Court should intervene when error shown in individual sentences but overall sentence appropriate

CORPORATIONS - REGISTRATION - REINSTATEMENT - FARM DEBT - Company deregistered for failing to file annual returns - Company a "farmer" under the Farm Debt Mediation Act - mortgagee seeks to reinstate registration of company - whether application to reinstate is "enforcement action" under Act - whether notice of "enforcement action" required - PREJUDICE - INJUSTICE - If company reinstated, would be wound up as insolvent forthwith - insolvent company does not have benefit of Farm Debt Mediation Act - whether reinstatement would cause relevant injustice or prejudice.

Family Provision. Application by a widow left a life interest in family home. Remainder interest to charities. Order for sale and legacy to plaintiff in lieu ofd life estate.

ASSESSMENT OF DAMAGES - Civil Liability Act - non-economic loss when injured party has limited appreciation of that which has been lost - extent and nature of gratuitous care services provided by family members - whether benefits received under Disability Services Act should be taken into account when assessing damages for future accommodation and care.

Family Provision. Application by three children of deceased's first marriage. Estate passes to de facto partner of 16 years. Orders for legacies in favour of plaintiffs.

PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Warrant for arrest for disobedience of subpoena - Circumstances in which warrant will issue although subpoena not personally served.

Order for medical examination - discretionary power - relevant considerations and onus - evidence from expert that such examination would have an adverse impact on the plaintiff's health - expert not cross-examined - finding to be made on competing pieces of paper - defendant's experts not preferred - failure to discharge onus.

CRIMINAL LAW - Crown appeal against interlocutory judgment - whether evidence should be admitted as tendency and/or coincidence evidence

AGENCY - contractual - no common law duty of care to prevent economic loss to principal - NEGLIGENCE - contractual agent owed no duty of care to prevent third party making dishonest use of document - D

Negligence - council's approval of development and building applications - council's issue of s 149 certificates - land within zone of noise affectation in ANEF - purchasers of land from developer - discussion of duty of care owed by council to purchasers in relation to grant of approvals - whether council in breach of duty of care - whether in breach of duty of care in relation to issue of s 149 certificates - whether defence of good faith under s 149(6) made out - losses claimed included that paid more for land than true value - whether causation of loss established - whether later draft or proposed ANEF with less affectation meant no loss suffered - whether interest properly included in damages. D