Cases and authorities

PERSONAL INJURY - footbridge in park blocked off by plastic mesh - plaintiff running for train at night - did not see mesh - fell and was injured - whether insufficient illumination - whether fact plaintiff not keeping proper lookout meant no duty of care - hazard created when defendant could have used more visible means of blocking footbridge - was duty of care - breach of duty of care - CONTRIBUTORY NEGLIGENCE - whether finding of contributory negligence open - DAMAGES - claim to buffer because injury could disadvantage plaintiff on open labour market - whether prospect of pecuniary loss from disadvantage established - no buffer. D

Conspiracy to defraud - Elements of the offence - Written directions to Jury

Agreement with council - construction of notices given under the agreement - whether notices sufficient for purpose of the agreement - whether notice of termination invalid

SUCCESSION [164]- Wills- Rectification- Principles involved- Mistaken view of extent of estate insufficient.

Appeal - reliability of audit - questions of admissibility of evidence and whether or not there was supporting evidence for findings - decision reasonably open on material.

CONTRACT - SPECIFIC PERFORMANCE - COURT SUPERVISION - Consent orders for specific performance made - vendor refuses to complete on trifling grounds and purports to issue Notice to Complete. - HELD: Notice to Complete invalid as issued without Court's approval while performance of contract under Court's supervision. - EXECUTION OF DOCUMENTS - In what circumstances order for execution of documents by Registrar should be made.

CRIMINAL LAW: - Application for leave to appeal against sentence - armed robbery - sentence accumulated upon existing sentence - whether sentence and non-parole period reflect principle of totality

Sentencing - Detaining without consent with intent to obtain advantage in circumstances of special aggravation - serious objective criminality - juvenile when offence committed - due proportionality of all components of sentence with those of co-offender - co-offender sentenced for other offences - effect of partial concurrency and partial cumulation of sentences

BUILDING & CONSTRUCTION - INJUNCTION - PRACTICE AND PROCEDURE - Progress payments - Building & Construction Industry Security of Payment Act - ex parte application to restrain filing of adjudication certificate - application brought at last possible moment - discretion to refuse application and leave applicant to apply to set aside judgment - policy of Court to refuse last minute ex part applications.

Leave to appeal decision of Local Court Assessor Small Claims Division - jursidiction

INTERLOCUTORY INJUNCTION - Plaintiff claims interlocutory injunction restraining Defendant from drawing on bank guarantee, claiming equitable set-off against rent due under lease - whether serious question to be tried - balance of convenience - no question of principle.

Injunctions - Interlocutory - Continuation of order restraining construction - apprehension of risk of danger to railway tunnel - damages not an adequate remedy - balance of convenience

CONTRACT - Whether letter between the parties constituted a binding agreement - Intention to execute formal contract - Construction of letter - Whether language indicated intent to be contractually bound - Objective test applied taking into account surrounding circumstances - Absence of prescribed documents under s 52A Conveyancing Act relevant to the factual matrix.

PRACTICE AND PROCEDURE - application for leave to amend cross-claims - Barnes v Addy (1874) LR 9 Ch App 244 - whether cross-claims properly plead case of knowing and dishonest assistance in breaches of fiduciary duty - whether pleading of knowledge sufficiently set out material facts as to knowledge - no issue of principle

Denial of procedural fairness before Tribunal - reasonable opportunity had to deal with questions of joinder and order for payment of money - legal representative allows orders to be made on an undefended basis - extension of time - futility and explanation for delay.

Evidence - opinion evidence - expert evidence - translation from a foreign language - whether reasons for opinion of witness required for admissibility

Conviction appeal - importation of heroin concealed in guitar - sufficiency of evidence of knowledge - circumstantial case - whether verdict unreasonable - indictment - accused charged as accessory - Crown case actually that he was principal using innocent agent - indictment not amended - whether allegation that agent was principal offender mere surplusage - effect of Criminal Code - sentence appeal by Crown - sentence manifestly lenient - offender resentenced

Re-sentencing

Criminal law - Sentencing - Crimes (Sentencing Procedure) Act s 44 - Discount for utilitarian value of plea - Reduction of non-parole period

CRIMINAL LAW & PROCEDURE: - accessory to a charge of malicious wounding in company - crime organised from withiin prison - whether sentence manifestly inadequate - remorse - delay - previous convictions - special circumstances and non-parole period

Criminal law - Sentence - Postponement of sentence

NEGLIGENCE - Leave to appeal - Was claimant, "Territory", liable for injuries suffered when opponent road his motorcycle trail bike around a blind corner upon off-road track occupied by the Territory into a pile of dirt and rubble of which the Territory was aware - Whether Territory as occupier of the land breached a duty of care to opponent by failing to erect a warning sign - Whether there was a failure to consider at all whether the alleged breach of duty caused the injury.

Stay of order pending appeal - dispute over whether development consent required for telecommunications facility - Council brought proceedings in Land and Environment Court - Optus went ahead and erected facility - held development consent required - proceedings adjourned so application could be made for development consent - but order preventing use of facility in the meantime - whether order to be stayed - balance of convenience - use illegal and Optus went ahead at its own risk - Council had benefit of judicial decision also giving it collateral advantage of allaying concerns, even if ill-founded, about electromagnetic emissions - stay refused. ND

CORPORATIONS - winding up - members voluntary winding up - application to terminate winding up after discovery of asset previously overlooked - asset of long term nature

trial by judge alone - special verdict - not guilty by reason of mental illness - conditional release - supervision of Mental Health Review Tribunal

Construction of deed - No question of principle.

CONTRACTS [218] - Particular parties - Principal and agent - Relations between principal and third persons - Other cases - Agent participating with principal in transactions involving breach of trust - Knowing receipt of proceeds of breach of trust - CORPORATIONS [19] - Constitution and legal capacity - Contracts - Other matters - Engagement of solicitors and accountants by one of two directors in proceedings brought at the instance of the other - Ratification by general meeting - Whether effective - CORPORATIONS [291] - Winding up - Liquidator - Appeal from liquidator's decision - Rejection of proof of debt - Nature of proceedings - EQUITY [1] - General principles - Rules and maxims of equity - "Unclean hands" - Corresponding common law maxims relating to illegal conduct - Respective operation of defences of illegality and of unclean hands - Principles relating to application of clean hands doctrine - 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 - Breach of fiduciary duties - Conflict between duty and interest - Duty not to profit from position - Remedies - EVIDENCE [144] - Burden of proof, presumptions, and weight and sufficiency of evidence - Generally - Sufficiency - Standard in civil proceedings - When fraud alleged - Whether "clear and cogent" proof required - Whether "actual persuasion of its occurrence or existence" necessary before Court can find fact proved - EVIDENCE [216] - Witnesses - Cross examination - When permitted and in general - By whom - Evidence of witness proposed to be contradicted by adversary.

PRACTICE & PROCEDURE - determination of separate questions - after unsuccessful application for determination of separate questions in proceeding to invalidate deed of company arrangement, plaintiffs take new proceeding seeking recovery of debt on basis that deed is ineffective - whether it is appropriate to make orders for determination of separate questions in new proceeding

Extension of time to commence proceedings, ss 60G and 60I Limitation Act 1969 (NSW) - Voyager/Melbourne collision

Criminal Law - Sentencing - discount on account of assistance - failure to fulfil undertaking to give evidence - Crown appeal - proportion of discount referrable to future assistance

SENTENCING - Suspended sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s.12(3) - Operation - Revocation of good behaviour bond - Whether original sentence should be given effect from the date of revocation or the original date when sentence was imposed.

CRIMINAL LAW - application for leave to appeal against sentence - attempted sexual intercourse without consent - indecent assault (4) - offences committed by hairdresser upon female clients - challenge to findings of fact by sentencing judge - challenge to structure of sentences

ADEQUACY OF REASONS - Obligation of trial judge to give adequate reasons - Content of obligation - Credibility of witnesses involved - Retrial.

CONTRACT - interpretation - incorporated property joint venture - challenge to the construction placed upon terms of settlement of a dispute between two of three individuals who conducted certain real estate development projects - was there interpretation ambiguity in the contract justifying resort to extrinsic evidence - extrinsic evidence inadmissible but in any event itself not supporting contrary interpretation.

NEGLIGENCE - Duty of care - Laneway in poor state of repair - Conditions obvious - Whether Council responsible for poor condition of laneway - Whether Council was negligent in not carrying out temporary repairs - Allocation of Council funds. - NEGLIGENCE - Duty of care - Whether duty of care in user of laneway to other users.

DEFAMATION - Defamation Act 1974 (NSW), s.13 - Defence - Test to be applied - Meaning of "Not likely to cause harm" - Irrelevance of whether harm was in fact occasioned - "Grapevine effect" - Republication - Relevance of content of publication. - DEFAMATION - Reputation - Relevance of reputation of plaintiff to s.13 defence - Knowledge of reputation of plaintiff. - DEFAMATION - Onus. - DEFAMATION - Damages - Whether harm was actually occasioned.

WORKERS' COMPENSATION - Statutory interpretation - Recovery actions under s 151Z(1)(d) of the Workers' Compensation Act 1987 (NSW) - Whether a recovery action may be brought against the Nominal Defendant - Whether the Motor Accidents Compensation Act 1999 (NSW) denies the availability of such recovery actions - Applicability of Nominal Defendant v Australian Associated Press [1982] 1 NSWLR 127 - Whether s 37 of the Motor Accidents Compensation Act 1999 (NSW) is a code for the recovery of damages from the Nominal Defendant - Liability of the Nominal Defendant under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Availability of the Motor Accidents Authority Fund to pay liabilities of the Nominal Defendant arising from a recovery action - Effect of policy considerations. D

Police - use of sniffer dog - indicated prohibited substance in pocket - put nose on pocket - "bunting and ferretting" - followed by police searching pockets and finding substance - admissibility of evidence of search by police - (by majority) dog's actions were not a search - no findings upon dog's actions amounting to a trespass to the person - or on formation of reasonable suspicion - remission for further hearing - (in dissent) dog's actions were a search and a trespass to the person - no remission as to formation of reasonable suspicion. D

INSURANCE - Double insurance principle - Whole insurance burden borne by one insurer - Right to contribution from other insurer - Right to contribution only arises where each insurer is liable for same risk. - INSURANCE - Workers Compensation Act 1987 (NSW), s.151B(1)(b) - Operation - Discharge of statutory liability also discharges liability of employer to pay damages - Where employee receives workers compensation payment liability for damages does not arise - Therefore the workers compensation insurer has no right to contribution from motor vehicle third party insurer. - INSURANCE - Motor Accidents Act 1988 (NSW), s.9(a) - Operation - Exclusion of liability to pay compensation under the Workers Compensation Act.

ENVIRONMENTAL PLANNING - STATUTORY INTERPRETATION - clause in State Environmental Planning Policy No. 5 applying policy to land on which development for the purpose of dwelling-houses is permitted - whether policy applies to land on which development for the purpose of dwelling-houses is permitted under a local environmental planning instrument notwithstanding the presence of words in that instrument qualifying or limiting the circumstances in which dwelling-house development is permitted. (D)

CONTRACT - parol evidence rule - whether regulatory benchmarks admissible as parol evidence - formation of contract - whether plaintiff acted so that defendant reasonably entitled to believe that plaintiff assented to position put by defendant in e-mail - frustration - where third party in breach of obligations to defendant - whether contract between plaintiff and defendant frustrated - whether frustrating event can have retrospective operation - TRADE PRACTICES - ss 51AC, 52 Trade Practices Act 1974 - unconscionable conduct - misleading and deceptive conduct - where defendant entered into agreements with third party - where plaintiff not told of existence or terms of agreements with third party - whether plaintiff misled - whether unconscionable for defendant not to tell plaintiff of precise terms of agreements - whether statutory limit in s 51AC(9) exceeded - determination of contract "price" for purposes of statutory limit - RESTITUTION - unjust enrichment - recovery of money had and received on a failure of consideration - change of position - quantum meruit - whether defendant provided services for plaintiff or plaintiff's clients - whether services intended to be provided gratuitously - whether change of position defence made out - quantification of quantum meruit claim EVIDENCE - where defendant made assertion in e-mail - inferences - inference to be drawn from plaintiff's failure to respond to e-mail - whether plaintiff's failure to respond to e-mail an admission of allegations made in e-mail - content of applicable foreign law - whether assumption to be made that principles to be applied by foreign court in deciding whether an illegal agreement is enforceable same as principles to be applied by this Court - where no proof of any applicable provisions of relevant foreign legislation

Corporations. Statutory demand. Must be signed by or on behalf of creditor. Affidavit accompanying demand. Must be made by the creditor or a person with the authority of the creditor. Non-compliance constitutes "some other reason why the demand should be set aside". Genuine dispute as to existence or amount of the debt. Whether entirety of the debt was payable at time when demand was served.

Family provision claim - claim by daughter and grandson - close relationship between deceased and plaintiffs - special care provided by grandson - adequate provision.

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination void - s 22(4) - whether s 22(4) applicable - whether compliance with s 22(4) a fundamental requirement of Act - meaning of "valuation" of construction work in s 22(4) - application of Brodyn v Davenport [2004] NSWCA 394

Criminal law - sentencing - manslaughter - aggravated robbery.

SUCCESSION [316]- Family Provision- Widow- 17 year marriage- Long period of separation- Section 86 deed executed- Widow's claim fails- Executors distributing estate to themselves without notice- Consequences.

Criminal law - sentencing - manslaughter

Relief against justices - Order in the nature of mandamus sought against a magistrate refusing to resentence an offender following the revocation of a community service order

appeal against severity of sentence - s25(1) Drug Misuse and Trafficking Act 1985 - methylamphetamine - plea of not guilty - youth and rehabilitation prospects - statistical evidence