Cases and authorities

Motorcycle accident - Unknown defendant - Quadriplegia care requirements - Past care costs - Future care costs

CONTRACT - misrepresentation by vendor in sales brochure as to size of property - standard contract for sale of land - contract affirmed by purchaser after discovering misrepresentation - subsequent failure to complete by purchaser not caused by misrepresentation - whether vendor entitled to rely on Notice to Complete and terminate contract - entitlement to damages for breach of contract - TRADE PRACTICES - s42 Fair Trading Act 1987 (NSW) - whether misrepresentation misleading and deceptive conduct - effect of word "approximately" in representation - effect of disclaimer on representation - whether conduct in "trade or commerce" - whether causation established - whether conduct of representee so unreasonable as to sever the chain of causation - damages for misleading and deceptive conduct - PROPERTY - EQUITY - s55(2A) Conveyancing Act 1919 (NSW) - deposit forfeited by vendor after failure by purchaser to complete contract - whether proper to exercise statutory discretion to order the deposit to be returned - factors relevant to exercise of discretion

CONTRACTS - Sale of Land - Construction - Termination - s 55(2A) Conveyancing Act - Completion subject to council approval of development plans - Purchaser entitled to rescind if conditions of approval not reasonably acceptable to it subject to any dispute being referred to arbitration - Whether purchaser entitled to rescind - Whether purchaser had elected to affirm the contract - Whether parties had abandoned arbitration - Purchaser's claim for repayment of deposit - Deposit as an earnest for the purchaser's performance of contract - Held that purchaser repudiated contract and vendor is entitled to keep deposit.

Determination made by costs assessor is binding on all parties to the application - possible need for legislative amendment.

No question of principle

CORPORATIONS - Winding up - Oppression - Just and equitable ground - Plaintiffs are class B shareholders with no voting rights - Defendant company and director - Director manages company - Company entered into transactions benefiting defendant director - Proceeds of sale of land lent to related parties of director - Undisclosed loans to related parties - Related party transactions concealed from shareholders - Concealment of new and hazardous business venture controlled by defendant- Accounts not audited - New constitution removing requirements for annual general meetings and auditing of accounts - Director caused company to oppose winding up order despite legal advice that it was inevitable - Whether company affairs conducted in a manner oppressive or prejudicial to, or contrary to the interests of class B shareholders - Winding up by consent - S 233(1)(a), s461(1)(k) of Corporations Act - Held that winding up would have been ordered and the plaintiffs had been successful in the proceedings - Held that plaintiffs are entitled to costs. - PRACTICE AND PROCEDURE - Costs - Whether director should indemnify company for costs incurred in defending proceedings - Whether company funds had been improperly expended - Discretionary power as to costs - S233(1)(j) of Corporations Act - S 76 Supreme Court Act - Held that defendant director acted unreasonably in causing company to defend winding-up application - Held that defendant company liable for costs up to appointment of provisional liquidator - Director defendant liable for costs up to and including this hearing - Director defendant to indemnify company for its liability to the plaintiffs and for costs and expenses incurred in defending proceedings up to appointment of provisional liquidator.

NEGLIGENCE - duty of care owed to player in paintball game - whether evidence sufficient to establish breach of duty of care - whether evidence sufficient to establish causation - TRADE PRACTICES - whether breach of section 74(1) of the Trade Practices Act 1974 - implied warranty that materials supplied are fit for their purpose - whether evidence sufficient to find materials supplied for paintball game not fit for their purpose - whether evidence sufficient to establish causation

NEGLIGENCE - liability of employer - psychiatric injury - alleged ingestion of faecal material by employee during course of employment - whether employer negligent for failing to provide employee with protective apparel - special susceptibility or vulnerability to psychiatric injury - reasonable foreseeability of psychiatric injury due to perceived ingestion of faecal material - APPEAL - findings of fact - error - no basis to disturb trial judge's findings

Taxation - PAYG instalments not remitted by company - directors liable to pay unremitted amounts as penalty - notice before action required - if company put into liquidation/administration within 14 days, penalty remitted - notices given as to amounts for periods 1 and 2 - then notice given as to amount for period 3 - companies put into liquidation/administration within 14 days of last notice - whether penalties remitted as to amounts for periods 1 and 2 - operation of s 222AOG Income Tax Assessment Act 1936 - penalties not remitted.

Practice and procedure - Indemnity Costs - Need for Commercial List litigation to be tied to Overriding Purpose Rule - Identified issues - Defendant claiming to 'put the plaintiff to proof'

PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Proposed amendment may be futile but covers same subject matter as recent amendment made without objection.

EVIDENCE - admissibility - evidence of settlement negotiations - party under cross-examination gives answer disclosing protected communication between persons in dispute - whether that disclosure represents "offer" to consent in terms of s.131(2)(a), (b) or (c) which other parties may then accept

EVIDENCE - admissibility of documents and discretionary exclusion - creditor communications - adoption of exclusionary criteria to handle bulk tender - ASIC v Rich [2005] NSWCA 152 distinguished

Criminal law - appeal against sentence - Henry guideline - no inbuilt allowance for an early plea - discount for plea of guilty - 25% discount - utilitarian value of the plea - strength of the Crown case - manifestly excessive sentence - starting point for sentence - sentence imposed on co-offender - parity.

APPEAL - indemnity costs - offer of compromise made by defendant at trial pursuant to Pt 19A District Court Rules - court's discretion as to costs - s.76 Supreme Court Act - COSTS - appellant ultimately successful on appeal but unsuccessful on issue of contributory negligence - whether appellant entitled to entirety of their costs

WILLS - mental capacity - effect of ill-health grief and dissension in the family - onus - evidence - test for capacity - effect of age having regard to modern medicine

Ambit of appeal from proceedings in the Tribunal - no appeal from decision whether to grant or refuse application for rehearing.

PRACTICE AND PROCEDURE - mediation - court's power to order referral to mediation where a party opposes mediation - duty to mediate in good faith - discretionary considerations - civil penalty proceedings

Limitation Act 1969 - Finding of "person under a disability" - appeal dismissed - Extension of time - Leave to appeal refused - Practice and Procedure - Pleading of Limitation Act 1969 - Order for trial of separate issue.

LAND AND ENVIRONMENT- Devlopment consents for subdivision of land - Whether consents had lapsed - Under Environmental Planning and Assessment Act, consent lapsed unless "building, engineering or construction work relating to" development was "physically commenced" upon land to which consent applied - Whether expression "building, engineering or construction work" was capable of including survey work and/or geotechnical investigation work - Whether survey work and/or geotechnical investigation work carried out by respective appellants was, in fact, engineering work and whether it was "physically commenced" - Relevance of whether work was "merely preparatory" - Whether work in each case "related to" approved development - STATUTORY CONSTRUCTION - "Relating to" - Ambit in context of reference, in lapsing provisions of Act, to work "relating to" the development

Property Law - Equity - Licensing - Liquor Administration Board- Rights to Poker machine entitlements regulated by Gaming Machines Act 2001 - Equitable/beneficial interests in poker machine entitlements - Whether outgoing lessee/licensee can bind incoming lessee/licensee in relation to poker machine entitlements - Former lessee, business operator and holder of hotelier's licence surrenders lease and contracts to sell hotel business to new lessee/transferee of hotelier's licence - Complex of contractual provisions between former lessee and new lessee whereunder former lessee seeks to preserve alleged title to property rights in respect of poker machine entitlements - Lessors protect themselves with complex of contractual provisions between themselves and new lessee - Former lessee seeks relief against lessors and against new lessee who still holds hotelier's licence - Former lessee claims that new lessee is constructive trustee of poker machine entitlements for benefit of former lessee - Former lessee also claims relief in contract - Former lessee seeks to sell poker machine entitlements to outside third-party holder of hotelier's licences - Claim to orders that new lessee obliged to deal with poker machine entitlements to direction of former lessee by making application to Liquor Administration Board for transfer of entitlements to purchaser of entitlements from former lessee - Claims of former lessee upheld in very urgent circumstances

CORPORATIONS - winding up - application based on alleged non-compliance with statutory demand - demand not stated to be under Corporations Act and omitting much required content - held not "statutory demand" - in any event served long before start of s.459C(2)(a) period

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - pleading of probate actions - PROCEDURE - Supreme Court procedure - pleading - in probate action

Family law application under Property (Relationships) Act 1984. No matter of principle.

COSTS - DISCRETION - The Plaintiffs unjustifiably commenced proceedings against the Defendants - the Defendants cross claimed against a third party - neither the Defendants nor the third party should have been put to the expense of the proceedings - scope of discretion as to costs discussed. - COSTS - LITIGANT IN PERSON - Held: a litigant who chooses not to obtain legal representation should not be given any special consideration in the making of costs orders.

Criminal law - appeal against sentence - ongoing supply of prohibited drugs - limited discount for plea of guilty - strength of the Crown case - utilitarian value of the plea of guilty - established retail operation - future retail activity - setting of a trap by undercover police - whether sentence manifestly excessive - opportunistic crime - planned activity - quantity of drugs supplied

Sentence - armed robbery - Henry guideline - irrelevance of strength of Crown case to utilitarian value of plea.

SENTENCING - plea of guilty to offence of being a trustee fraudulently disposing of property contrary to s.172 Crimes Act 1900 - error in having additional regard to Applicant's abuse of a position of trust as an aggravating factor under s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 - no error in declining to find "special circumstances" - sentence not manifestly excessive - no other sentence was warranted in law and should have been passed for purposes of s.6(3) Criminal Appeal Act 1912.

Criminal law - appeal against sentence - aggravating factor - aggravating factor was an element of the offence - manifestly excessive sentence - Henry guideline - starting point.

Criminal law - appeal against sentence - aggravating factors - manifestly excessive sentence - threatened use of violence - record of previous convictions - without regard to public safety - offence a planned activity - Henry guideline judgment - starting point - less severe sentence is warranted.

Sentencing - aggravating factors - elements of crime - double counting. Backdating commencement of sentence when there has been pre-sentence custody. Criminal Appeal Act s 6(3) - when another sentence in substitution for that imposed is warranted in law.

Sentence - multiple offences aggravated break, enter and steal - failure to give due weight to subjective matters.

EVIDENCE - Expert Evidence - Admissibility - s76 and s79 Evidence Act 1995 - Where expert first formed opinions based on information not disclosed in report - Whether sufficient for admissibility that expert report discloses facts and reasons asserted as basis for the opinion - EVIDENCE - Judicial Discretion to admit or exclude Evidence - s135 Evidence Act 1995 - Where trial judge did not analyse probative value of evidence - Whether fundamental error - EVIDENCE - Judicial Discretion to admit or exclude Evidence - s135 Evidence Act 1995 - Expert report - Weight to be given to fact that facts and reasons asserted as basis for the opinion were not the basis upon which the opinions were first formed

CORPORATIONS- winding up - nine companies with same directors and shareholders - intermingled affairs - application by liquidators for order that assets of companies "be pooled" and all creditors be paid from pool without regard to which of companies was indebted - application based on s.511 - no attempt to invoke provisions under which majority can bind minority - no showing of unanimous consent

CORPORATIONS - voluntary administration - deed of company arrangement - applications for order terminating or setting aside deed and order setting aside resolution of creditors - plaintiff was not creditor when resolution passed, deed executed as applications initiated - whether standing achieved by taking subsequent assignment of part of a creditor's debt

Maximum costs in personal injury damages matters - cross-claim for statutory contribution - legal services provided in connection with the cross-claim are not legal services provided in connection with a claim for personal injury damages.

CRIMINAL LAW - sentencing - appeal by offender against sentence - convicted on plea of guilty - Customs Act s.233B(1)(d) knowingly concerned in importation of commercial quantity of MDMA (ecstacy) 34.4kg in 480,000 tablets - offence of possession of trafficable quantity 52.1 grams taken into account - 18 years, non-parole 12 years - no prior connections - consideration of - nature of participation of applicant and place in heirarchy compared to other participants - statement of reasons for fact finding where applicant gave evidence - discount for plea of guilty - discount for offer of assistance which prosecuting authorities did not accept because regarded as unreliable - parity - severity - sentence affirmed.

NEGLIGENCE – employment – school classroom – teacher suffered injury when, on rising from chair while working at computer table, her foot was caught in a loose cable – consideration of facts relating to history of teacher’s complaints to School Principal – Principals’ decision on action to be taken and degree of remoteness of risk – held risk was foreseeable and foreseen and there was breach of duty as response to foresight of risk was not reasonably adequate – judgment for damages to be assessed by District Court.

PRACTICE - confirmation of informal service

EQUITY [185] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Liability for breach of trust - What constitutes a breach of trust and who may be liable - Accessorial liability - Form of orders.

CORPORATIONS - winding up - application for appointment of provisional liquidator - strongly arguable case of insolvency - breakdown in relationship of directors and shareholders

Sentence - break and enter with intent - threaten to cause injury to a judicial officer intending to influence that person in his conduct as a judicial officer - nature and seriousness of offence involving judicial officer.

CRIMINAL LAW: Appeals against conviction - murder (3) - evidence of appellants at trial alleged to have been concocted by them jointly - whether evidence amounted to lies demonstrating consciousness of guilt - use which might be made of those lies against each appellant - admissibility of evidence of a statement by one of the deceased - effect of ruling upon that evidence by judge in previous trial

appeal against severity of sentence - break, enter and commit a serious indictable offence - second offence of same nature in aggravated form - additional offences taken into account - attempting to drive vehicle without consent of owner - larceny - pleas of guilty - special circumstances - Aboriginal heritage - drug dependence - whether aggregate sentence is manifestly excessive - whether adjustment in the aggregate non-parole period reflects special circumstances - prospects of rehabilitation

PRACTICE AND PROCEDURE - summary judgment - strike out of grounds of defence - pleading general issue - triable issues - principles for exercise of summary judgment - evidence of belief in no defence - whether belief can be inferred.

Employer's claim for indemnity for worker's compensation benefits paid to worker injured by negligence of third party - s151Z Workers Compensation Act - ceiling of amount of damages worker could have recovered from third party - claim to $104,000 - arbitrator found damages $240,000 - component of non-economic loss of $46,000 - order for limited rehearing in District Court as to that component - could not affect result in employer's claim - hypothetical question - judge should have declined to entertain it.

NEGLIGENCE - isolated step - obvious hazard - everyday risk - failure to alert pedestrians - reasonable care for the safety of an invitee to commercial premises - Wyong Shire v Shirt calculus - temporary glare - distraction of injured person - causation.(ND)