Cases and authorities

LIMITATION OF ACTIONS - application for extension out of time - Limitation Act 1969, s 60C - determining issues of causation on final basis as opposed to determining whether the applicant could prove facts which demonstrated reasonable prospects of success at a final hearing. (D)

SUCCESSION - Wills, Probate and Administration - Probate and letters of administration - Whether informal document in will kit lacking attestation by any witness should be admitted to probate under the Wills, Probate and Administration Act 1898, s 18A - Proper construction of the document

PRACTICE AND PROCEDURE - Interlocutory application for an injunction against former employee - Junior sales employee in a real estate agency - Balance of convenience favours the defendant - RESTRAINT OF TRADE - Employer and employee - Term in employment contract restraining former employee from working for a competitor, or soliciting clients or prospective clients of the plaintiff - Covenant is prima facie too wide to be reasonably necessary to protect the plaintiff's legitimate business interests - Limited injunction ordered.

REAL PROPERTY - land under the Real Property Act 1900 - caveats against dealings - order for removal of caveat - caveator served at address for service nominated in caveat but does not appear

PROCEDURE [113] - Supreme Court procedure - Practice under Supreme Court Rules - Judgments and orders - Order dismissing proceedings - Effect - Whether proceedings can be brought again.

VENDOR AND PURCHASER - BREACH OF CONTRACT - DAMAGES - MITIGATION - CAUSATION - Purchaser did not wish to proceed with contract for sale of land because of commercial risks - purchaser rescinded for vendor's failure to complete in accordance with Notice to Complete - whether purchaser can recover as damages profits of the venture which it had decided it did not wish to undertake - relationship of causation of loss and mitigation of damages discussed.

BUILDING & CONSTRUCTION - Whether the decision of an Adjudicator should be set aside for failure to take into consideration material in the Adjudication Response - failure to give proper and adequate reasons - failure to value the work - resulting in a breach of natural justice, or failure by the Adjudicator to bona fide exercise power. - HELD: Proceedings dismissed - Adjudicator did value the works, give appropriate reasons, did not fail to take into account part of submissions. There was no breach of natural justice. There is no question of there being no bona fide exercise of power.

PROCEDURE - Supreme Court procedure - power to require admissions to be made - whether appropriate to be used in an application that a party not be heard on the ground that it is in contempt - PROCEDURE - contempt, attachment and sequestration - application to not hear a party found to be in contempt - whether appropriate to use section 82 Supreme Court Act to require admissions in such an application

False imprisonment - wrongful arrest - failure to inform of reasons for arrest - malicious prosecution

CRIMINAL LAW - sentence - guilty plea to offences of - engaging in money laundering - obtaining money by deception - making a false instrument - using a false instrument - obtaining a valuable thing by deception - whether the sentencing judge erred in failing to order concurrent sentences in respect of some of the charges - whether the applicant has a justifiable sense of grievance - disparity between applicant's sentence and that of another offender in relation to the same criminal enterprise - whether the sentencing judge gave inadequate weight to the applicant's pleas of guilty and assistance to authorities - whether fraud sentence manifestly excessive

CRIMINAL LAW AND PROCEDURE - SENTENCE - ATTEMPT TO IMPORT NARCOTIC (MDMA) - OFFENDER AGREES TO ACT AS "POST BOX" FOR ONWARD DISTRIBUTION - INTERCEPTION BY AUTHORITIES - NO RECEIPT BY OFFENDER - ISOLATED OFFENCE - RANGE OF SENTENCES - ASSESSMENT OF CRIMINALITY - WHETHER SENTENCE AT FIRST INSTANCE EXCESSIVE

CORPORATIONS - management and administration - leave granted in previous proceedings for person to intervene in litigation to enforce company's rights - whether court has jurisdiction to grant leave to that person to cease to exercise the leave previously granted - PROCEDURE - Supreme Court proceedure - whether notice of motion can be filed and determined in proceedings which have been dismissed

CORPORATIONS - winding up by the court - liquidator's claim for order under s.588FF that party to pre-liquidation transaction with the company pay money to the company - other party to transaction seeks leave to proceed with cross-claim seeking order declaring transaction void ab initio - whether cross-claim of any utility - whether leave to proceed with cross-claim should be granted

CRIMINAL LAW: - Sentence - murder of adult, abduction and sexual assault of child - offender with history of paedophilia - whether offences against child relevant to criminality of murder - whether life sentence appropriate

APPEAL - interlocutory rulings of trial judge on evidence - whether leave to appeal should be granted - EVIDENCE - interlocutory rulings of trial judge on evidence - whether leave to appeal should be granted - D

Appeal decision of Local Court Magistrate - extend time for service - statement of claim

NEGLIGENCE - suspected severance of accessory nerve during surgery - nature and extent of subsequent duty of surgeon to patient - whether breach of duty. DAMAGES - assessment pursuant to Civil Liability Act 2002 - whether 5% discount extends beyond allowance for future loss of earning capacity - s 16 of Act.

Family Provision. Claim under the Family Provision Act by a de facto partner. Application out of time and a distributed estate. Held no special circumstances under s28(5)(d) and proceedings dismissed.

PRACTICE AND PROCEDURE - Application to extend caveat or for an injunction - Interest in land claimed on the basis of option to purchase - Dispute as to authenticity of alleged option - Delay - Undertaking as to damages from company with nominal paid up capital - Extension of caveat and injunction refused - No question of principle.

CORPORATIONS - winding up - statutory demand - setting aside - allowable evidence - allowable amendments to application

PRACTICE AND PROCEDURE - Interlocutory injunction to restrain dealings with a bank account - Account contained proceeds from an alleged fraud practised on plaintiff - Strength of prima facie case that defendant implicated in the fraud - Strength of prima facie case that plaintiff relied on alleged misrepresentations - Balance of convenience - Plaintiff's negligence - Injunction not continued.

application for leave to appeal against severity of sentence - plea of guilty - maliciously inflicting grievous bodily harm with intent so to do - malicious damage - affray - prior criminal record - parity - comity - assessment of totality of the criminal conduct - applicant subject to parole revocation at the time of offence - also subject to sentence to be served by way of periodic detention - accumulation of sentences

TRESPASS - trespass to land - trespass to goods - lien agreement - dispute over amount of debt - seizure of chattels - police in attendance - police duty to prevent a breach of the peace - non-interference in a civil dispute - trespass by arresting police officers - invitation of police onto premises - implied licence to enter - aiding and abetting acts of trespass - negligent failure to prevent a breach of the peace - ASSAULT - common assault - assault occasioning actual bodily harm - lawfulness of arrest - s352 Crimes Act 1900 - legislative history of s352 - interpretation of ss352(1)(b) and s352(2)(a) - reasonable suspicion - occupier's right to protect property - serious indictable offence - notification of grounds of arrest - false imprisonment - dismissal of assault charge - malicious prosecution - exclusion of evidence. NEGLIGENCE - performance of police duties - whether duty of care to prevent breach of the peace (D)

WORKERS COMPENSATION - Employee assaulted outside his home - Whether injury occurred in the course of employment - Whether at the time of assault employee carrying sum of money for purpose of paying wages - EVIDENCE - Appeals - Question of law - Circumstances in which finding of fact can reveal error of law - Conflicting evidence concerning source of the sum of money - Employee's primary evidence regarding source of money altered as a result of cross-examination - Whether evidence as accepted by primary judge could properly base his finding of fact that employee had money on him when assaulted - Whether primary judge's conclusion of fact involved a form of rationalisation in order to enable a finding in employee's favour which was otherwise unsupported by evidence

NEGLIGENCE - forklift accident in the course of employment - breach of duty of care - failure to provide safe working equipment / safe system of work - damages with respect to future loss of income - s126 Motor Accidents Compensation Act 1999 - "cushion" award - most likely future circumstances - stated intention of plaintiff to retire. (ND)

CORPORATIONS [72]- Creation of charge- Charge created in favour of executors- Executors were also directors of chargor- Whether charge created "in favour of" ... "relevant persons"- Whether charge void. SUCCESSION [255][257]- Co-executors- Appointment of receiver to company by one co-executor- Acted without consent of the other- Whether one co-executor can bind all- Discussion of when executors become trustees. WORDS & PHRASES- "In favour of".

PROCEDURE [558] - Costs - General rule - Costs follow the event - Co-defendants - General principles - Bullock orders and Sanderson orders - Relevant principles - PROCEDURE [574] - Costs - Departing from the general rule - Orders for costs on indemnity basis - Relevant considerations - Calderbank letter and other offers of compromise - Hopelessness of plaintiffs' case - Whether plaintiff's conduct reasonable.

PRACTICE AND PROCEDURE - Contempt of court - Alleged failure to comply with court orders - Alleged breach of order that defendant provide accounts kept in accordance with another order - Statement of Charge that defendant failed to provide "any" of the accounts stipulated - No case to answer submission - Whether evidence that defendant prepared such accounts - Meaning of "accounts" as distinct from "records" - Construction of orders - Whether provision of "some" accounts suffices - Plaintiff's evidence not capable of proving statement of charge beyond reasonable doubt - Charge dismissed.

CORPORATIONS - alleged agreement to grant a charge - whether interlocutory injunction should be granted - no question of principle

Sentencing for contempt of court - various breaches of orders of Supreme Court restraining offender from certain conduct - wilful and repeated breaches over an extended period of time - favourable subjective features.

Leave to revoke election and to commence proceedings - evidentiary deficiencies - no question of principle.

MORTGAGES - Priorities - First registered mortgage and later unregistered mortgage - Unattended refinance - Second mortgagee took mortgage without notifying first mortgagee - Money deposited in account with the first mortgagee to close account - Second mortgagee had notice that authority to close the account was not in conformity with first mortgagee's procedures - Where correspondence handled by junior clerk - Mortgagors made further drawings - Whether subsequent advances can be tacked to first mortgagee's security - Whether second mortgagee can be subrogated to first mortgagee's rights - Whether constructive notice, actual notice, or knowledge attributable to the first mortgagee is required for the rule to be applicable - Held that there was no actual notice prior to letter revealing second mortgage - The rule in Hopkinson v Rolt is based on equitable fraud and actual notice of the second mortgage is required.

PRACTICE AND PROCEDURE: - pleading - application to file amended statement of claim, join additional defendant - whether tenable causes of action - allegation of fabrication of evidence by police - claims in negligence, misfeasance in public office (as well as false imprisonment, malicious prosecution) - witness immunity principle - immunity of police from action in negligence arising from investigation - whether those immunities applicable

COSTS - probate - successful application for revocation of probate - defendant executors not discharging onus of proof of testator's capacity - whether they should pay costs personally - whether testator was cause of the litigation

Building dispute in Consumer, Trader and Tenancy Tribunal - whether builder permitted to join his company as co-plaintiff - finding by Tribunal that company not a party to the contract - cross claim against the company still on foot - whether Tribunal erred in refusing application - jurisdiction of Tribunal - meaning of "building claim" under s49A of the Home Building Act 1989 (NSW) - whether legal services supplied by homeowner to builder gave rise to a building claim - whether law firm of which homeowner was a partner could be joined as defendant - collateral contract - whether there was a contract collateral to a contract for the supply of building goods and services.

Appeal determination of Costs Review Panel - indemnity for costs

CORPORATIONS - charge given by Australian company to New Zealand company - subsequent deregistration of New Zealand company - subsequent winding up of Australian company - whether deregistration effected extinguishment of any debt owing to New Zealand company - common law principles concerning dissolved corporations considered - displacement thereof by New Zealand statute law - whether sufficient evidence that debt satisfied - whether register of charges should be rectified - direction that liquidator need not take account of charge

ADMINISTRATIVE LAW - administrative review of conduct of the Registrar of the Workers Compensation Commission of NSW in forwarding a medical report to an approved medical specialist - contrary to arbitrator's purported ruling

Section 48K Home Building Act 1989 (NSW) - jurisdiction

Local Court decision - certorari - "fit and proper person" s 18(1)(c) Driving Instructors Act 1992

[CONTRACT] - Construction of interest clauses in Contract for Sale of Land

MEDICAL NEGLIGENCE - infant with seizures - breach of duty by paediatrician - proper history taking - delay in diagnosis - advice of paediatric neurologist - obligation of hospital to provide appropriate treatment - obligation of hospital to explain all reasonable treatment options - should particular drug have been used by hospital. CAUSATION - did delay in diagnosis cause adverse outcome - would parents have accepted medical advice - would earlier administration of drug by hospital have produced a better outcome.

CRIMINAL LAW AND PROCEDURE - SENTENCE - ELEMENT OF OFFENCE TREATED AS ADDITIONAL AGGRAVATING FACTOR - PARITY WITH CO-OFFENDERS - LONG PRISON TERM CONTRASTED WITH WHOLLY NON-CUSTODIAL PUNISHMENTS - LONG DELAY IN OFFENDER BEING TRIED OWING TO FINDINGS OF UNFITNESS TO BE TRIED - SIGNIFICANT MENTAL HEALTH ISSUES

Variation of Orders.