Cases and authorities

Possession of land - miners' cottages - Pottery Estate Lithgow NSW - ground leases - nature of tenancies - Landlord and Tenant (Amendment) Act 1948

Family Law. Application under Property (Relationships) Act 1984. Application fails as relationship was between same sex partners and relationship ended before commencement of the Property (Relationships) Legislation Amendment Act 1999. - Equity - claim for a constructive trust based upon principles in Baumgartner v Baumgartner. Orders for a constructive trust.

Costs

TORTS - negligence - personal injury - duty of care - plaintiff injured when diving from bridge into river estuary - water of unknown and variable depth - design of bridge - warning or prohibitory signs - "obvious risk" - contributory negligence - apportionment between defendants - WORDS AND PHRASES - "roads authority" - "obvious risk"

EQUITY - subrogation - defendant guarantors - plaintiff creditor - plaintiff creditor takes additional security via a second mortgage - mortgagee owes equitable duty to act conscionably towards mortgagors - depreciation in value of mortgaged property - first mortgage exhausts proceeds from sale of property - position of second mortgagee requested to agree to a discharge of its mortgage during alleged market downturn - summary judgment to be ordered for plaintiff on General Steel principles

Restraint of trade - contract of employment - whether there was consideration for a restraint clause in a written contract entered into after many months of employment pursuant to an oral contract - discussion of problems of consideration where an oral contract of employment is replaced by a written one introducing a new term - relevance of Award requiring writing - whether consideration was provided by the avoidance of a "practical disbenefit" of possible invalidity of the existing contract.

Criminal law - appeal against sentence - plea of guilty - armed robbery - whether sentencing judge erred in finding aggravating factors - whether weight given by sentencing judge to community expectations and prevalence of armed robbery offences - whether sentence imposed unduly severe.

COSTS - appeal from LEC - costs of appeal [2004] NSWCA 163 - respondents filed submitting appearance in CA and each party to pay own costs: SCR Pt.52A r.12. - Costs of issue in LEC remitted to LEC. ND

Misleading or deceptive conduct - the fact that a person to whom a representation is made has doubts about the accuracy of the representation does not of itseslf negate a claim. Misleading or deceptive conduct - reliance by a corporation upon conduct constituted by a representation - the fact that a person who holds the majority of the voting shares in the corporation is not convinced by the conduct does not mean that the corporation does not rely upon the conduct.

COSTS - offers of compromise - Calderbank offers - relevance of Calderbank offers to offers of compromise made under the District and Supreme Court Rules - courts' general discretion as to costs - COSTS - indemnity costs - Calderbank offer made prior to trial but not renewed or revived between trial and appeal - whether party is entitled to indemnity costs extending from the trial to appeal proceedings in the absence of a fresh offer of compromise

PRACTICE AND PROCEDURE - motion for summary dismissal - jurisdiction of Supreme Court - whether plaintiff entitled to pursue general law remedies in respect of indemnity under Part 6A of Home Building Act - whether plaintiff "The Commonwealth" for the purpose of s38(c) of Judiciary Act

REAL PROPERTY - Torrens System - Indefeasibility of title - Exceptions - Fraud - In personam rights - Right of Carriageway - Unregistered easement - Agreement with previous owner - Purchaser acknowledges easement in contract - Whether unsigned term forms part of the contract - Solicitor's power to contract - Real Property Act 1900 s 42 - Conveyancing Act s 23C(1)(a) - Whether contractual term amounts to a declaration of an express trust - Whether unenforceable for want of signature - Equitable interest under a constructive trust - Bahr v Nicolay (No. 2) considered and applied.

Practice and Procedure - Service of process - Service out of jurisdiction - Application for leave to proceed before Supreme Court of New South Wales - Principles - Arbitral Award made in New York - UNCITRAL Arbitration Rules - Arbitral Award constituting "foreign award" pursuant to the International Arbitration Act 1974 (Cth) - Parties to Arbitral Award both parties to Convention on the Recognition and Enforcement of Foreign Arbitral Awards - Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea - No destructive tension between personal service effected on defendant under the Supreme Court Rules and service under Treaty - Treaty provisions held to be permissive

Privilege against self-incrimination, order requiring statement of assets and liabilities, abrogation of privilege by implication contested with need for express language.

Costs - Related proceedings appropriate to be heard together

LANDLORD AND TENANT - rent review clause - whether lessor obliged to initiate a market rental review each three years - whether, when lessor has not initiated market rental review in the third year, a clause providing for fixed percentage increases in subsequent years applies

Administrative Law - CTTT - Procedural matters - Telephone hearing - No denial of procedural fairness.

Criminal law - importation of ecstasy tablets - being knowingly involved in importation - Customs and Police surveillance -controlled delivery - intercepted telephone calls and recorded conversations - extent of importation process - whether verdict reasonable or supported by evidence.

INSURANCE - causation - proximate cause - CONTRACTUAL CONSTRUCTION - presumed intention of parties - use of dictionaries. (D)

Parole - refusal by Parole Board to grant application for direction - decision superceded by subsequent decision - directions irrelevant - psychological report - conclusions disputed by applicant - mere dispute over opinion not basis for direction

PARTNERSHIP - generally - whether partnership formed - CONTRACTS - illegal and void contracts - whether partnership in "business of a pharmacist" between pharmacist and non-pharmacist prohibited by Pharmacy Act 1964 - whether composite business should be viewed as made up of core elements central to "business of a pharmacist" and other elements - effect of statutory prohibition on formation of partnership

REAL PROPERTY - easements - extinguishment and modification under s 89 (1) (c) Conveyancing Act 1919 - easements for recreational purposes - onus of proof of no substantial injury - meaning of "substantial" -types of effect of extinguishment or modification which count as an "injury" - whether s 89 (1) (c) looks at different types of effects of extinguishment or modification when applied to an easement, to those which can be looked at when s 89(1) (c) is applied to a restrictive covenant - whether court has jurisdiction to order that a modification or extinguishment take place by an instrument which obliterates existing easements and creates new ones which are in substance a modification and partial extinguishment of the old ones - effect of the existing easement being defeasible in certain circumstances - effect of only a small percentage of the existing easement being affected - effect of easements "protecting" the servient tenement by in practice making development of it which is inconsistent with the easement impossible

Allowance for future holidays - interim payment of verdict ordered - future case management ordered to commence immediately - other questions to be the subject of written submissions.

Possession of land - dispute as to payment of interest

CRIMINAL LAW - Sentencing - Appeal against severity of sentence - Application of guideline decision in R v Henry (1999) 46 NSWLR 346 - Discount for early plea of guilty - Significance of utilitarian value of plea - Discount for admissions and assistance to authorities - Assessment of objective seriousness of offence

Sentencing - severity appeal - culpable driving offences - relevance of general deterrence where offender has a mental disorder - no finding of "special circumstances"

Work injury damages - application of Chapter 7, Part 2, Division 2 Workplace Injury Management and Workers Compensation Act 1998 - Workers Compensation Act 1987 Part 5 - Schedule 6 Part 18C cl 8- injury prior to 30 June 1987 - new claim matter. (D)

Negligence - employer liability to indemnify - s3(1)(b) Employees Liability Act - independent contractor - employment status - deemed employment -Schedule 1 Cl 2(1) Workplace Injury Management and Workers Compensation Act - non-delegable duty of care - contributory negligence - Law Reform (Miscellaneous Provisions) Act 1946- motor vehicle insurance - contractual indemnity - costs - Sanderson order. (D)

CONTRACT - Unilateral mistake - Unconscionable conduct in knowingly taking advantage of another party's mistake - Rectification. - COSTS - Indemnity basis - More than unconscionable conduct must be established. - EVIDENCE - Credibility of witnesses - Failure to testify - Rule in Jones v Dunkel (1959) 101 CLR 298 applies. ND

NEGLIGENCE - existence of common law duty of care - foreseeability - assessment of damages - whether damages should be assessed under Motor Accidents Act 1988 or under common law - contribution between tortfeasors - whether 'just and equitable' under s5 of the Law Reform (Miscellaneous Provisions) Act 1946 - whether contribution under common law damages should be capped by maximum liability under the Motor Accidents Act 1946 - EVIDENCE - admission of fresh evidence - whether evidence as to financial problems of council admissible on appeal

COSTS - Special circumstances when costs do not follow the event - Smallness of the judgment sum, particularly where it does not repersent money to be received by a plaintiff, is capable of constituting special circumstances - Berrico Estate Pty Ltd v Andersen [2003] NSWCA 23 applied. ND

Workers compensation - decision of Arbitrator - appeal by way of review to Deputy President - appeal to Court of Appeal for error in point of law - references to frank injury and nature and conditions claim - whether error in saying Arbitrator had found a frank injury - Arbitrator found injury suffered on particular date - no error - whether error in finding that there was a reasonable amendment in the Arbitrator permitting a nature and conditions claim - no question of amendment - claim unchanged - injury found - no error - whether error in conducting review without transcript of oral evidence before Arbitrator - transcript unavailable - Deputy President considered she could properly review Arbitrator's decision - absence of transcript does not mean new hearing - assuming there was a discretion, no error shown in exercise of discretion. D

CRIMINAL LAW - armed robbery - appeal by Director of Public Prosecutions - failure of Respondent to give evidence in accordance with undertaking given at time of sentencing

Criminal Law - Summary Proceedings - Mental Health - Availability of mental condition treatment diversionary option.

Succession. Family Provision. Claim by adult son and two infant grandchildren. Intestacy. Son entitled to one half of estate. Son and grandchildren resided in house of Deceased. Whether son has been left without adequate provision for his proper maintenance. An applicant seeking accommodation must offer evidence of the nature of desired accommodation and the cost thereof. Whether infant grandchildren were dependent upon Deceased. If so, whether there are factores which warrant the making of the application. Whether claims of infant grandchildren are subsumed in claim of their father. Competing claim of Defendant.

Interest - from what date should s94 interest run, when the plaintiff's claim is in the nature of equitable compensation, arising from a proprietary estoppel.

interlocutory judgment - question as to what extent and at what rate the amount of damages available for investment is likely to be dissipated

SENTENCE - leave to appeal against the severity of the sentence - whether sentence imposed was manifestly excessive - whether Court should intervene to impose a lower sentence - whether there was error in the treatment of plea of guilty - whether there was error in the dealing with the principle of general deterrence - whether there should have been a finding of special circumstances - whether this Court should itself consider special circumstances - whether relatively low intelligence of applicant taken into account.

STATUTORY INTERPRETATION - Liability of Nominal Defendant dependent upon whether accident occurred on a "public street" under Motor Accidents Act 1988 or equivalent definition of "road" in the Motor Accidents Compensation Act 1999 - possible relevance of statutory purpose and legislative history - was area "used by the public" - meaning of term "used by the public" in relevant legislation - comparative meaning of "open to the public" in the relevant legislation - relationship between openness and usage - relevance of fact that private property and that though usage not permitted measures to prevent it quite ineffective - Jones v Dunkel inference - differential treatment of relevant witnesses by trial judge.

APPEAL - PROCEDURE - Application for leave to appeal - That application dismissed - Claimant claims to have appeal as of right - What procedural steps are open.

DEFAMATION - discharge of jury - whether counsel's address entitled the trial judge to discharge the jury - where counsel addressed the jury that the ordinary reasonable reader would read the matter complained of with the presumption of innocence in mind - Republication of defamatory hearsay - adoption - relevance of publisher's intention - whether error of discretion - appeal dismissed. (D)

PROCEDURE - Supreme Court procedure - proceeding with case in absence of defendant - Part 34 Rule 5 Supreme Court Rules - CONVEYANCING - relationship of vendor and purchaser - breach of contract - repeated breaches by purchaser - delay in purchaser completing causes expiry of development consent - purchaser or one of its related companies having demolished cottages on land subject of contract - appropriateness of order for specific performance - time to allow for completion to occur - manner of service of order for specific performance

Dismiss statement of claim - claim under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998

Easetments - creation under s.88K of the Conveyancing Act 1919 - whether the Court has power to utilize s.88A so as to order the creation of an easement in gross in favour of a Council - easement for drainage - nature of an easement - construction s.88A and s.88K - whether liberal construction of s.88K required because it is beneficial legislation conferring a power on a Court - whether expressions such as "land that will have the benefit of the easement" have a technical legal meaning and indicate the existence of a dominant tenement.

Criminal Law - Traffic Offences - Use of a hand held mobile phone - When criminal.

WILLS PROBATE AND ADMINISTRATION - construction of will - rectification

CONTRACTS [249]- Auctioneer acknowledging then rejecting highest bid- Knocking down property to next highest bidder- Whether highest bid in law has right to have auctioneer sign contract. EQUITY [341]- Injunctions- Point of law arising on interim injunction application- Normally to be decided. PROFESSIONS & TRADES [41]- Auctioneers- Auctioneer acknowledging bid- Later treating bid as rejected- Whether permissible. STATUTES [131]- Regulations- Whether regulation to control conduct of auctions creates contract between bidders.