Cases and authorities

PROCEDURE - costs - substantive order made without opposition - no determination on the merits - whether conduct of fifth defendant in allowing proceedings to be initiated and pursued was unreasonable - whether second, third and fourth defendant complicit therein

CORPORATIONS - winding up - examination of officers - statutory right under s.597(14) to inspect "written record made under subsection (13)" - s.597(13) contemplates order for making of written record and requirement that examinee sign it - where latter imposed but former not explicitly made - whether, having regard to actual course of events, words spoken included or implied order for making of written record - meaning of "order" in the particular context

PROCEDURE - Costs - Application to have informal document declared to be a will under s 18A of the Wills, Probate and Administration Act 1898 - Application opposed unsuccessfully - Calderbank offer by plaintiff - Matters requiring investigation justifying rejection of offer - Informal document without residuary estate although all assets disposed of - S 46C(2) of the Wills, Probate and Administration Act 1898 requires debts to be met in the order outlined in Pt 2 of Third Sch - Cl 6 from assets specifically disposed off by will, rateably according to value - Under the informal document the highest valued asset, a house, passed to the successfull plaintiff - An order for her costs out of the estate would require her to bear the lion's share of the order

defamation - Sydney Morning Herald, 5-6 January 2002 - two imputations defamatory of plaintiff found, pursuant to Defamation Act s7A, to have been conveyed, and defamatory of the plaintiff - whether plaintiff is entitled to award of damages, and if so, in what amount - defence of qualified privilege (s22) - damages in respect of the publication interstate - interstate defences - whether defendant's conduct in publishing imputations was reasonable in the circumstances - proper journalistic practice - matter of public interest - defence of contextual truth - contextual imputations found to have been conveyed, and to be defamatory of the plaintiff - contextual imputations substantially true - the seriousness of each imputation pleaded by plaintiff balanced against seriousness of facts, matters and circumstances that establish the truth of the contextual imputations - reputation of plaintiff - assessment of compensatory damages - aggravated damages

MENTAL HEALTH - protected persons - application by son of protected person for payment of his children's school fees out of estate - evidence of past payment of school fees but whether from trust or protected person's estate not clear - whether the Protective Commissioner has power under the Protected Estates Act 1983 to make such payments - whether evidence sufficient to show that protected person had entered into an engagement to pay the fees from her estate. - STATUTES - interpretation - Protected Estates Act 1983 s 28(1)(a) - meaning of "engagements".

LANDLORD AND TENANT - lessee's obligation to repair - whether damages for breach of covenant to repair are "due ... pursuant to this lease" - whether provision allowing lessor to make good defaults of lessee and to claim interests on moneys "due ... pursuant to the lease" contains implied term for reimbursement by lessee of money outlaid by lessor in making good

Rates paid pursuant to declaration by council as to category - concession that land had been incorrectly categorised - moneys had and received - jurisdiction of Local Court - moneys paid under mistake - areas of challenge available where decision is made in Small Claims Division.

CORPORATIONS - administration - examinations under Part 5.9 - whether examinations to be undertaken for impermissible purposes - whether abuse of process - whether three day time limit in rule 11.5(2) may be extended - CORPORATIONS - deed of company arrangement - deed administrators defer consideration of claimants claim - whether court should review administrators' decisions

Contract. Specific performance of deed. Parties entitled to judgment against each other for $250,000. Stay of execution upon judgment until party breaches terms of deed. Whether parties or either of them is in breach of deed. Commercial or marketing strategy or other transaction. Business name. Requirement for registration.

LOCAL GOVERNMENT - Whether RTA required consent of local council under s 138(1) of Roads Act 1993 to carry out road work - Whether ss 64 and 72 authorised RTA to carry out road work without need to obtain council consent - Whether exemption in Schedule 2 clause 5 from need to obtain consent applied to RTA - STATUTORY CONSTRUCTION - Construction that would promote underlying object or purpose of Act - Whether recourse to extrinsic material permissible - Interpretation Act 1987 ss 33, 34

NEGLIGENCE - Personal injury - Occupiers' liability - Breach of duty of care - Nature and extent of owners corporations' statutory duties of maintenance and repair - Resident injured when glass in front door of building shattered over his arm - Whether owners corporation of building under a duty to inspect and replace glass in accordance with current safety standards - Whether s 62 of the Strata Schemes Management Act 1996 imposed on owners' corporation duty to inspect common property over and above that of occupier at common law

petition to the Governor of New South Wales - review of convictions - referral to Court of Criminal Appeal to be dealt with as an appeal - 2000 New South Wales Police Integrity Commission inquiry - 2003 Royal Commission investigation of corrupt conduct by police in Western Australia - concession by Crown - convictions a miscarriage of justice

application for bail pending determation of appeal to the High Court of Australia

WILLS - FRAUD - FORGERY - Whether the signatures of the deceased on a will and codicil were forgeries - whether a solicitor and his wife had falsely attested to the signatures.

Loan Deed - finance for a development - additional payment - whether additional payment was a profit-share - development did not proceed - whether advances before teh Deed were referable to the Deed - retrospective nature of the Deed - estoppel by deed - ambiguity - parol evidence rule - penalty interest.

Crown appeal - sexual intercourse with child aged 12 - failure to reflect objective gravity of offence.

previous District Court trial declared to be a nullity - appeal against District Court decision of 20 May 2005 refusing a stay of proceedings - further proceedings stayed until Crown pays the costs incurred by the applicant in relation to previously aborted trial

Criminal law - sentence for murder - effect of self-defence, provocation and intoxication not reaching level to reduce offence to manslaughter - mitigating factors - objective seriousness of offence.

Criminal Practice & Procedure - child almost 18 years charged dangerous driving causing death - s52A(1)(c) - whether should be dealt with summarily or according to law - construction s31(3) Children (Criminal Proceedings) Act 1987 - duty to give reasons - s31(4).

Criminal Practice & Procedure - appeal from Magistrate dismissing charges under Migration Act 1958 - migration assistance - proper construction s276(1) and (2) and s281(1) Migration Act - objects of Act - s283(1) Act - meaning of "directly or indirectly represent" that he is a migration agent - error of law.

Negligence - Conveyancing transaction - Heritage affectation - Duty of care - Causation

Family Provision. Application under the Family Provision Act by two children of deceased. Children abandoned by mother at a young age and estate left to charities. Orders for provision by way of legacy.

INSURANCE - Contribution - Whether defendant's policy covered claim paid by plaintiff - Whether insured's liability arose from and was in relation to activities of the NRL - claim dismissed.

Review - conditional grant of leave to amend - discretionary powers of amendment - interests of justice, otherwise order and special circumstances.

CORPORATIONS - Managed Investment Schemes - Registered scheme - Application to wind up managed investment scheme on just and equitable grounds - Orders sought included appointment of liquidators to take responsibility for winding-up and conferral of powers similar to those of a company liquidator - Scheme was already being wound up pursuant to a members' resolution - Current responsible entity having difficulties with obtaining documents from, inter alia, the previous responsible entity - Orders sought in order to facilitate winding-up - Corporations Act s 601FS, 601ND, 601NF - Held that appointment of proposed liquidators not necessary - Statute does not provide for conferral of corporate liquidator powers on entity winding up a registered scheme.

CONVEYANCING - vendor and purchaser - contract for sale of land - notice to complete given and contract terminated - notice valid despite an obligation of the vendor outstanding that was required to be cured before completion - plaintiff entitled to forfeit deposit - no relief under s55(2A)

Interlocutory Injunction - Vendor - Purchaser

PRODUCT LIABILITY - Sale of Goods - Merchantable quality - causation - no novus actus interveniens when plaintiff's horses poisoned by contaminated chaff from supplier in circumstances where plaintiff aware of rumours of possibility of contaminated product but not notified - Whether proper inference drawn from facts - Admissibility of evidence.

Succession. Family Provision. Claims by two adult daughters. Deliberate estrangement of each Plaintiff from Deceased. Statements by Deceased. Financial and material circumstances of each Plaintiff. Whether either plaintiff has been left without adequate provision for her proper maintenance. Significance of estrangement to community expectation. Estrangement is relevant to exercise of Court's discretion.

Review of decision of Registrar - security for costs - purported address given contrary to rules - restriction on power where mis-statement is made without intention to deceive - inherent jurisdiction.

PRACTICE AND PROCEDURE: Costs - plaintiff's claim dismissed for non-appearance - application by defendants for order for costs against plaintiff's solicitor - Legal Profession Act - Pt 52A of Rules - whether claim had a reaonable prospect of success - inaction by solicitor - exercise of discretion.

Family Provision. Application under the Family Provision Act by a partner of the deceased of 30 years. Held de facto relationship with deceased. Order for provision made.

Application by defendants for dismissal of the Summons on the basis that the commencement of the proceedings was in breach of an order made dismissing previous proceedings - Whether the proceedings concern any cause of action or the whole or any part of any claim for relief in the earlier proceedings

Family Provision. Application under Family Provision Act by son of deceased who suffers severe disabilities. Estate left to son and daughter equally and comprises a house and no other assets. Son given a life interest over his sister's share. Discussion of costs in these matters and the duty on legal practitioners to settle such matters if at all possible.

Forfeiture of assets - application for variation of restraining order in respect of funds arising from a murder suspect selling her version of events to the media while under police investigation - variation granted to permit funding of legal representation.

SENTENCING - pleas of guilty to multiple offences of break, enter and steal and break and enter with intent to steal - offences directed at small business premises in country towns - application of principles in Pearce v The Queen (1998) 194 CLR 610 - error in treating as aggravating factor under s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 the fact the offences were committed in company - applicant re-sentenced in accordance with Pearce principles.

Just terms compensation - land zoned for waterfront industrial use - whether land could be treated as having been zoned for residential use - meaning of 'proposal' in s56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 -contaminated land - whether contractual right to remediation could be taken into account in determining value of land at the date of acquisition

Contract - party liable to pay fees - did the relevant documentation disclose a principal liable to pay the fees - no error.

CONTRACT [90] - General contractual principles - Illegal and void contracts - Contracts illegal by statute - Particular statutes - Property, Stock and Business Agents Act 2002 - Agreement to carry on business of real estate agents in partnership - One partner does not hold licence as real estate agent.

CIVIL PROCEDURE - where representative proceedings brought for recovery of petrol licence fees - whether proceedings ought to continue as representative proceedings - whether proceedings ought to be dismissed, struck out or stayed - whether the proceedings statute barred by Recovery of Imposts Act 1963 (NSW) - whether no cause of action disclosed - whether proceedings "trafficking in litigation" - whether proceedings abuse of process - whether plaintiff entitled to order for discovery to ascertain details of members of represented class

PRACTICE AND PROCEDURE - referee's report - whether report ought to be adopted - whether referee failed to apply legal standards to established facts - whether referee predetermined agreed issues - whether patent misapprehension of fact - DAMAGES - where damage awarded for negligent design and construction - appropriate measure of damages - whether cost of rectification or diminution of value correct method of assessment - Bellgrove v Eldridge applied

PRACTICE AND PROCEDURE - reference - whether referee's report should be adopted - whether referee's assessment of compensation and damages so flawed as to require rejection - where referee rejected methods of assessment proposed by experts and adopted "total cost" method without consulting parties - whether defendant denied procedural fairness - TRADE PRACTICES - where referee found representation misleading or deceptive - where representation alleged that no assignment of contract - where no effective assignment - whether representation misleading or deceptive - PRACTICE AND PROCEDURE - application for leave to amend - whether plaintiff entitled to amend statement of claim - whether defendant prejudiced by amendment - whether amendment embarrassing

[SECURITIES] - Whether Crop Lien granted to the Bank pursuant to the Liens on Crops and Wool and Stock Mortgages Act 1898 is 'preferential' or has priority over claim for losses on liquidation of foreign currency positions in relation to cotton crop - [CONTRACT] - Identity of contracting parties for forward sales of cotton and currency positions or contracts - identification of terms - nature of the various transactions - Whether breach of warranty - Whether cotton grower required to indemnify cotton merchant for amount it is required to pay the Bank under the Crop Lien - [TRADE PRACTICES] - Whether representations made - Whether reasonable grounds for making representation - Whether misleading or deceptive (s 51A - s 52) - [DUTY OF CARE] - Whether cotton merchant owed a duty of care to cotton grower - scope - whether duty breached - [CONTRACTS REVIEW] - Whether currency contracts should be declared void or varied in whole or in part - [DAMAGES] - whether cotton grower entitled to damages - measure of damages

PRACTICE AND PROCEDURE - Continuation of anti-suit injunction - Application to set aside service for lack of jurisdiction - Whether plaintiff seeks relief which might be granted in proceedings for the administration of an estate of a person domiciled in NSW - Asset in issue is a bank account in the name of the deceased - Injunction restraining defendant from continuing foreign proceedings seeking entitlement to bank account - Plaintiff executor contends that bank account is beneficially owned by third party - Defendant later commenced proceedings in the forum under Family Provision Act - Supreme Court Rules Pt 10 r 1A(p) - Held that court had jurisdiction at the time service was ordered - Injunction is necessary to protect the administration of the estate - Injunction continued.

Plaintiff's car skidded on road - hit embankment and overturned - council road works - whether loose gravel on bitumen surface - varied evidence from plaintiff's witnesses to support yes - defendant's witness said no - evidence that had previously said he could not remember - whether admissible as prior inconsistent statement - admissible - evidence of plaintiff's witnesses not put to defendant's witness - was put to defendant's witness that he had no real recollection - whether failure to comply with rule in Browne v Dunn - no failure - whether judge's finding of loose gravel on road appealably in error - not in error - whether causation of loss of control established - causation established - whether erred in apportionment for contributory negligence - no error. D

EVIDENCE [83] - Facts excluded from proof - On grounds of privilege - Other cases - Settlement negotiations - Where Court likely to be misled if evidence not adduced.

Reasons - alleged non-compliance with statutory provisions - reasonable opportunity to present case - quantum meruit - errors in admissibility of evidence and fact finding.

TRUSTS AND TRUSTEES - Discretionary family trust under control of plaintiff's father - Farm property purchased by trustee - Plaintiff ran farming business on property - Expenses were paid by trustee, trustee accounted for business in its books and plaintiff received wages - Plaintiff claims that common intention with father was for plaintiff to own property beneficially - Constructive trust - Equitable charge - Whether common intention that plaintiff be beneficial owner established - Whether there was detrimental reliance by the plaintiff - Held plaintiff failed to establish common intention or detrimental reliance - Plaintiff's claim dismissed - Trustee entitled to possession.

Costs - Calderbank offer - whether s198D of the Legal Profession Act extends to costs in the Court of Appeal (D)