Cases and authorities

Criminal Practice & Procedure - Judge Alone trial - mental illness defence - alternative of substantial impairment by abnormality of mind - compliction of drugs taken before stabbing.

TRUSTS AND TRUSTEES - Plaintiff claims a beneficial interest in property forming part of deceased estate on the basis of either a resulting or constructive trust - Whether money contributed to the acquisition of a weekend lease from the Crown was part of cost acquiring title in fee simple - Whether plaintiff and deceased had a common intention that the former have a beneficial interest in property - Whether plaintiff acted to her detriment in reliance upon this common intention - Held that common intention need not extend to quantum of beneficial interest and plaintiff had a beneficial interest under a Grant v Edwards constructive trust - SUCCESSION - Wills - Family Provision - Application by de facto wife - Family Provision Act s 7 - Provision made.

PROPERTY- Strata plans - Strata Management Statement provided that "owners" of commercial lots in strata building must not use lots as fast food outlets - Lots used by lessees as fast food outlets - Proper construction of Statement - Whether obligation in Statement imposed upon lessees or proprietors only - Whether lessees in breach of covenant contained in s 28W(2)(b) of Strata Schemes (Freehold Development) Act 1973 - PROCEDURE - Whether leave should be granted to raise point not taken in court below

Application for indemnity costs - offer of compromise - prima facie right to indemnity costs - subject to Court's discretion - suggestion that plaintiff's case changed after offer - whether realistic assessment of plaintiff's case showed change "on the cards" - later Calderbank letter - entitled to indemnity costs.

COSTS - FRAUD - INDEMNITY COSTS - Testamentary dispositions propounded by defendant were found to be forgeries - not an issue at trial whether the defendant was party to the fraud - defendant on notice prior to commencement of proceedings that the plaintiff had expert evidence that the deceased's signatures were forgeries - whether defendant acted reasonably in necessitating the plaintiff's proceedings.

The plaintiff was found to have elected to affirm the contract - finding of fact - no error.

TAXES AND DUTIES - Pay-roll Tax - Representatives of stockbroker providing financial planning services - Commission, brokerage and fees shared with stockbroker - Representatives required to follow detailed procedures - Stockbroker not obliged to provide clients or office facilities - Expenses borne by representatives - Finance houses instructed to pay trail commissions relating to clients to Bridges when representatives became proper authority holders - Representative businesses valued at 2.5 times annual trail commissions - Representative businesses bought and sold by proper authority holders - No fixed hours, no sick leave, holiday leave or other leave for representatives - Representatives free to operate as employees of family companies and trusts - Representatives or family companies or trusts free to employ others - Representatives had power to delegate portions of their activities - Whether representitives were employees as such - Whether representatives were deemed employees under relevant contracts under Pay-roll Tax Act 1971, s 3A(1)(b) in providing Bridges with work related services - Whether exempt under s 3A(1)(f) for work in relation to services performed by two or more persons - Whether deemed wages limited to labour content

CHARITIES [52]- Will written in foreign language- Testator left estate to two churches- In original translation estate was to be applied "along the lines of a trust/foundation"- Correct translation only made reference to "foundation"- True construction of will meant that estate was to pass as an outright gift. SUCCESSION [153]- Will written in foreign language- Original will and translation attached to letters of administration- Court can look to original to ascertain meaning and intent.

CONTRACT - whether purported notice of termination of lease valid - meaning of "alteration" - whether proposed work constituted alteration of Retail Complex - no question of principle

COSTS

STAY OF EXECUTION ON CONDITIONS

PRACTICE AND PROCEDURE - adoption of referee's report - relevant principles - whether referee erred in finding fiduciary duty case not open on pleadings - whether referee erred in construction of contract - DAMAGES - defective building works - whether appropriate measure of damage is cost of rectification or diminution in value - whether referee erred in finding rectification not reasonable - whether referee erred in finding no diminution in value

Plaintiff’s imputation unreasonably rejected by jury - verdict set aside and new trial ordered - plaintiff’s imputation rejected by second jury - whether judgment should be entered that, as a matter of law, the imputation was in fact conveyed - whether issues of imputation being conveyed and defamatory of the plaintiff should be tried by the same tribunal - Whether a third trial should be ordered where two juries had made the same unreasonable finding - heavy burden on appellant - whether jury’s verdict should be allowed to stand notwithstanding appellate court’s view that, had there been only one trial, there should have been a new trial - Application by plaintiff before second trial to add imputations to his Statement of Claim that could and should have been pleaded in the first trial - not pleaded in first trial in order to obtain maximum tactical advantage - whether it facilitates the just, quick and cheap resolution of the real issues in litigation to permit a plaintiff to plead imputations in second trial after he has failed to obtain that advantage in the first trial - New pleading practice in defamation litigation of pleading imputations in the words of the matter complained of, rather than (as was previously the practice) in order to identify the act or condition attributed to the plaintiff by the publication giving rise to the defamation - whether compliance with SCR Pt 67 r 11(2)

TORT - NEGLIGENCE - Solicitors' failure to pursue plaintiff's cause of action for failed surgical treatment against his medical professionals leading to limitation period being exceeded with further delay resulting in limitation period not being extended - DAMAGES for loss of benefit of cause of action - Measure of damages when x-rays said to be indispensable to success of action - Whether instead discount of cause of action to take account of reduced prospects of success from lost x-rays should have been greater than 55% - Damages for economic loss and for vexation and distress.

PROCEDURE - Application of Civil Liability Act 2002 as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 to re-trial. - LIABILITY AND DAMAGES - Appellant unsuccessfully sought damages when he caught his foot in raised concrete lip and fell while carrying a ladder in a driveway between two blocks of flats - Whether risk reasonably foreseeable - duty of care of occupier to invitee on domestic site for occupier's benefit as compared to highway authority's duty of care to pedestrian - whether new trial should be ordered because of failure by trial judge to disclose process of reasoning.

ADMINISTRATIVE LAW - merits review - compliance with jurisdictional requirements - Travel Agents Act 1986 - ADMINISTRATIVE LAW - merits review - based on evidence before Tribunal - ND

LIMITATION OF ACTIONS - extension of limitation period - amendment of statement of claim to limit claim to later period - amendment must prevent reliance on earlier acts or omissions - amendment cured prejudice - D

Criminal Law - Practice and Procedure - Application for evidence to be given by two overseas witnesses using videolink - witnesses unwilling to attend Australia - whether use of the procedure would be a breach of s 80 of the Constitution - whether it would result in an unfair trial - relevance of Crown's refusal to give undertaking as to costs thrown away if trial aborted due to failure of the procedure to prove effective and fair - application granted and directions made.

Alleged error in finding that the plaintiff had failed to prove the suffering of loss - the finding was one of fact based on credibility and reasonably open to the Magistrate - no error in point of law.

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - discharge, breach and defences to action for breach - whether contract repudiated - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - mortgages, charges and encumbrances - transfer by mortgagee exercising power of sale - concerning what breaches notice under section 57(2)(b) Real Property Act 1900 or section 111(2) Conveyancing Act 1919 is required - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contracts - one party obliged to provide evidence to the reasonable satisfaction of the other concerning a particular fact - nature of obligations imposed - WORDS AND PHRASES - "reasonable satisfaction" - DEEDS - delivery - how established - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contracts - when compliance with one provision of a contract is a condition precedent for performance of another provision of that contract - CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - matters arising between contract and conveyance - if transfer is to someone other than the purchaser, when does standard form of contract require purchaser to give a written direction to effect such a transfer - CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - matters arising between contract and conveyance - payment of deposit - when deposit paid "unconditionally" - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contracts - principles for construction - construction of clause conferring contractual power to terminate - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - discharge, breach and defences to action for breach - termination pursuant to contractual power - construction of particular clause conferring such a power

PRACTICE AND PROCEDURE - Costs - Dispute arising from appointment of arbitrator - Where action settled - No trial on the merits - Where communication between solicitors should have resolved the issue - Failure to agree due largely to plaintiff imposing unreasonable conditions - Held that proceedings were unreasonably brought by the plaintiff - Plaintiff to pay defendant's costs.

BUILDING AND CONSTRUCTION - where alleged that referee incorrectly calculated reference date under s 13(4) - whether basic and essential requirement of service of payment claim includes compliance with s 13(4) - whether failure to comply with s 13(4) renders adjudication determination void

CRIMINAL LAW - Appeal - Sentence - s52A(3)(c) Crimes Act 1900 - Dangerous Driving Occasioning Death - Dangerous Driving Occasioning Grievous Bodily Harm - Aggravating factors - s21A(2)(g) and s21A(2)(m) Crimes (Sentencing Procedure) Act 1999 - Whether trial judge erred in considering harm caused by offences - Whether trial judge erred by considering that there were multiple crimes - CRIMINAL LAW - Sentencing - s52A(1)(c) and s52A(3)(c) Crimes Act 1900 - Dangerous Driving Occasioning Death - Dangerous Driving Occasioning Grievous Bodily Harm - Objective factors - Driving whilst licence suspended - Where intoxicated - Where warned by passenger - Where driving erratically in a narrow compass - High Prospects of rehabilitation - Unlikely to re-offend - Where offender voluntarily returned to Australia with knowledge of likelihood of custodial sentence - Guilty plea

CRIMINAL LAW - Appeal - Against Conviction - s61JA of the Crimes Act 1900 - Aggravated Sexual Assault in Company - Whether verdict unreasonable - Identification Evidence - Alibi Evidence - Whether jury properly instructed

CRIMINAL LAW - Appeal - Against Conviction - s61JA of the Crimes Act 1900 - Aggravated Sexual Assault in Company - Joint criminal enterprise - Where aggravating factor was use of offensive weapon, a knife - Whether sufficient evidence that Appellant was party to agreement to use knife - Whether open to jury to find element of aggravation - CRIMINAL LAW - Appeal - Against Conviction - s61JA of the Crimes Act 1900 - Aggravated Sexual Assault in Company - Joint criminal enterprise - Directions to Jury - Whether erroneous - Whether adequate - Whether onus of proof properly stated - Whether verdicts reasonable

SENTENCING - malicious wounding - excessive self defence - short non-parole period imposed - head sentence excessive - head sentence reduced

BUILDING AND CONSTRUCTION - defective or incomplete work - no damage for defective or incomplete work sustained while contract is on foot and contractor is required to complete the work - termination by agreement - can be ab initio or release from future performance only - implied term that the parties' rights are governed by provisions in the contract relating to completion despite the termination of it - failure to meet contractual standard - evidentiary onus on contractor to prove the contractual standard has substantially been complied with - breach by contractor - evidentiary onus on contractor to prove no damage suffered - assessment of damages for rectification costs - costs of new work required to achieve conformity with contractual requirements - undertaking of the new work must be reasonable - intention to rebuild or to rectify the work is generally not relevant - suspension of the work to be carried out under a contract - s 27 of the Building and Contruction Industry Security of Payment Act 1999 (NSW) - no suspension if payment under s 15(1)(b) of the Act is conditional upon the payment of a bank guarantee - PRACTICE AND PROCEDURE - appeal proceedings - raising a claim for the first time in the notice of appeal - principles in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 apply - TRADE PRACTICES - misleading and deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) - adequate causative link required between conduct and damage suffered. D

Negligence - causation - onset of persistent tinnitus - multiple possible causes - medical evidence inconclusive - whether finding on the balance of probabilities open - Non-economic loss - section 151G of the Workers Compensation Act 1987 - "a most extreme case"

FAMILY LAW - De facto Relationships - orders sought pursuant to s 20 of the Property (Relationships) Act 1984 - treatment of loans by parents of one of the parties - orders made.

CORPORATIONS - winding up - application by liquidators for approval under s.477(2B) to enter into contracts not to be performed within three months

Corporations Law. Application to set aside demand under s459Gof the Corporations Act. Consideratrion of whether breaches of the Retail Leases Act led to a debt or a claim for damages. Demand set aside.

Sale of sofa - photograph in catalogue - parties appear in person before Tribunal - on appeal plaintiffs allege error by reason of failure to find an implied term - avenue of appeal provided by s67.

PROCEDURE - inferior courts - examination summons in the Local Court - whether implied obligation to use information obtained through that process only for the purpose of the proceedings - PROCEDURE - Supreme Court procedure - consideration of scope of implied obligation concerning information and documents obtained through compulsory pre-trial procedures - PROFESSIONS AND TRADES - lawyers - whether lawyer to be prevented from acting for a judgment creditor in an examination summons on the basis that information so obtained might be used for other proceedings

Sentence. No question of principle.

Criminal Practice & Procedure - serious drug offences - assistance to authorities, including against corrupt police - extent of discount - whether sufficient - limitation under s23(3) that sentence not disproportionate to offence - s6(3) Criminal Appeal Act 1912 - whether more lenient sentence warranted.

CRIMINAL LAW - appellant shot victim who broke into appellant's premises - EVIDENCE - whether trial judge erred in admitting evidence of silencer not proved to have been used in the commission of the offence - SUMMING-UP - whether trial judge's directions concerning self-defence were capable of causing a miscarriage of justice - SELF-DEFENCE - whether jury's verdict was unreasonable - SENTENCING - whether sentence manifestly unreasonable.

Sentence. No question of principle.

Sentence. No question of principle.

CONSTITUTIONAL LAW [150]- Permanent commissions of inquiry- Police Integrity Commission- Scope of powers- Legislation focused on the investigation of police misconduct- Whether investigation of police misconduct is on foot- Whether evidence before Commission includes evidence of conduct of people who are not police- Whether Commission empowered to form opinions and make assessments about police and other misconduct- Whether Commission required to report to Parliament on matters before Commission- Whether Commission authorised to report on conduct of non-police parties unconnected with police misconduct. WORDS & PHRASES- "Affected person"- "Other misconduct"- "Police misconduct".

Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for his proper maintenance. Statements by Deceased concerning conduct of Plaintiff and her reasons for excluding him from her will. Competing claim of Defendant.

EVIDENCE - facts excluded from proof - client legal privilege - need for proof of dominant purpose - in situation of possible joint privilege, dominant purpose of benefiting whom? - EVIDENCE - facts excluded from proof - client legal privilege - whether privilege exists in solicitor's own file note when he acts for himself in litigation

EQUITY [335][338]- Interlocutory injunction- Plaintiff runs in vitro fertilisation medical clinic- Legal relationship between clinic and defendant doctors unclear- Doctors established rival clinic- Doctors using patient information taken from clinic's database- Plaintiff asserts misuse of information on various bases- Test whether plaintiff has arguable case only just satisfied- Much of damage to plaintiff, if any, already occurred- In circumstances limited injunction granted to restrain defendants using information for certain purposes.

Meaning of "owner" for purposes of Motor Accidents Compensation Act 1999 - definition of "injury" under Act - was crane being "driven" at relevant time - did injury occur as a result of, or was it caused during the use or operation of the crane by defect in the crane.

Catchwords: BUILDING AND CONSTRUCTION - Whether the claim was a payment claim, whether failure to allow the time required before applying for adjudication was a substantial breach of natural justice, whether failure to serve application for adjudication was a breach of natural justice, and whether ceasing action in one jurisdiction indicates abandonment of rights at general law. - The claim set out all the requirements under the Building and Construction Industry Security of Payment Act 1999, thus it was a payment claim. Failure to allow time required was a substantial breach of natural justice. - Held: Adjudication Determination set aside.

Admissibility of a statement of a person now deceased "shortly after" - Evidence Act 1995 s 65(2)(b) and s 65(2) (c)

PROCEDURE - costs - consent orders - no determination on the merits - pursuit by applicant of notice of motion after satisfactory explanations given by respondent - applicant's claims otiose and ill-conceived - order for costs on indemnity basis against applicant