Cases and authorities

Appeal decision of Local Court Magistrate - summary judgment - Building Construction Industry Security of Payment Act 1999 (NSW)

CORPORATIONS [230]- Winding up- Application to convert creditors' voluntary winding up to winding up in insolvency- Who should be notified of application.

CRIMINAL LAW - Sentencing - manslaughter - mother kills autistic son when suffering major depressive illness - s9 bond - whether inadequate - CROWN APPEAL - Court's discretion - double jeopardy - Crown's failure to seek custodial sentence at first instance - respondent's progress in rehabilitation since given bond

Sentencing - robbery in company - applicability of guideline judgment - whether manifestly excessive

Sentence - Crown Appeal - Defrauding the Commonwealth - Impact of imprisonment of mother on invalid son - Whether suspended sentence justified - Importance of general deterrence.

Vendor and purchaser - Law Society form of contract - five parcels of land - supply of four of the parcels not a taxable supply for GST purposes - supply of fifth parcel was a taxable supply - contract said sale was a taxable supply - cl 13.9 of contract provided for vendor to pay purchaser one-eleventh of price if sale not a taxable supply - how clause operated when sale partly a taxable supply - clause not construed distributively, with apportionment of GST which would have been payable if supply of all parcels were taxable supply - contract took all or nothing approach and did not operate unless sale not at all a taxable supply. D

INSURANCE - Motor Vehicle Comprehensive Insurance - appellant claimed loss of vehicle by theft - "If your vehicle is stolen and not found, we will pay you the agreed value." DCJ found "not satisfied ... that the plaintiff company was not, by one, or both of its directors, compliant in the plan to have the vehicle stolen" - consideration whether any special requirement under Briginshaw where plaintiff alleges a negative, declining to find the negative implies that the plaintiff was involved in a crime - held, there is not. Findings of District Court were not set aside.

CRIMINAL LAW - Appeal against conviction - Plea of guilty - Application to withdraw plea dismissed by District Court judge - Principles applicable on appeal.

Family Law. - De facto relationship. - Disputed date of commencement and disputed date of termination of de facto relationship. - Adjustment of interests of parties in property. Respective contributions of parties. - Defendant during relationship acquired substantial assets by inheritance. - Effect of those assets upon claim by Plaintiff. - Caution should be exercised in applying to a claim by a de facto partner under section 20 of the Property (Relationships) Act 1984 (New South Wales) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Commonwealth). - The Property (Relationships) Act looks to past contributions whereas the Family Law Act looks also to present and future needs. - In exercising its discretion under section 20(1) of the Property (Relationships) Act the Court should not be diverted from the clear words of the statute.

Criminal Law - Sentence for conviction of the charge of supply prohibited drug and taking into account the matter on the form 1 of driving whilst licence was suspended

Sentence appeal - inducing children to participate in child prostitution - attempting to pervert the course of justice - accumulation of charges - significance of utilitarian discount for pleas of guilty where accumulating sentences - significance of prior good character - special circumstances where accumulating sentences - appeal allowed - sentences reduced

PROCEDURE - Costs - Respondent ordered to pay one third of appellant's costs - Order stayed for further argument - District Court Rules 1973, Pt 39A, r25(4) on costs where plaintiff does better than offer of compromise - Inapplicable to costs of appeal - Appeal costs governed by Supreme Court Act 1970, s 76(1)

CONVEYANCING [136]- Torrens Act- Caveat- Whether properly addressed lapsing notice needs to be received by caveator- Real Property Act 1900, s 74N.

[CONTRACT FOR SALE OF LAND] - Whether the plan attached to the contract is part of the contract - Falsa demonstratio non nocet - Whether maxim applies - Whether the stated area in the deposited plan attached to the contract amounted a contractual warranty - Whether the plaintiff's right to sue for breach merged on completion - [DAMAGES] - Whether damages should be assessed as at time of breach, as at time of discovery of breach, or as at date of trial - [TRADE PRACTICES ACT] - Whether reliance was placed upon misrepresentation - Quantum of damages

EMPLOYMENT - workplace injury - appellant experienced pain in L arm and shoulder while placing bag of goods in shopping trolley - employed at check-out handling high rate of customers including some heavy goods - negligence alleged related to high rate of handling and handling technique - Trial Judge found that causation by alleged breaches of duty was not proved by medical evidence - no error shown, appeal dismissed.

Application under Family Provision Act - Master ordered legacy of $250,000 - on appeal by executrix/beneficiary, legacy reduced to $60,000 - applicant entitled to trial costs out of notional estate - no basis for arbitrary ceiling on amount of costs - whether appellant's costs should be paid by respondent or come out of the notional estate - discussion of cases - approach as to trial costs extended to appeal - costs out of notional estate. D

BUILDING AND CONSTRUCTION - Progress payments - Building and Construction Industry Security of Payment Act - Progress claim - Meaning of "construction work to which the claim relates" - Whether it is the work required by the contract, the work for which payment is claimed, or each item of work for which payment is claimed

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Progress claim - Adjudicator's determination - Grounds for judicial intervention - Calculation of progress payment - Meaning of "amount calculated in accordance with the terms of the contract" where contract provides for certification by superintendent - Discretion.

TRADE PRACTICES - Fair Trading Act 1987 (NSW), s.42 - Trade Practices Act 1974 (Cth), s.52 - Contravention of either section does not require an intent to mislead or deceive - A corporation or individual that merely passes on false information supplied by another does not necessarily contravene s.42 or s.52 - Whether one who conveys a false representation makes that representation or acts as a mere conduit is a question of fact in each case - The question to be determined in each case is whether the conveyer of the false representation would be regarded by the relevant section of the public as adopting it - An employee acting within the scope of his or her employment may be liable for breach of s.42 of the Fair Trading Act and of s.52 of the Trade Practices Act.

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Adjudication certificate - Consequent judgment - Grounds for judicial intervention - Whether certiorari available - Grounds on which purported determination void - Natural justice - Error of law - Reference dates - Effect of termination of contract or cessation of work - Home Building Act - Effect of absence of licence - Exercise of discretion - Whether other relief available in respect of judgment, including stay of execution.

TORT - Whether duty to prevent harm brought about by the unlawful behaviour of a third party - Assault occuring in TAB agency - Occupier failing to control third party's continued presence on the premises - Scope of duty - Difference between error of judgment and negligence - impossibility of physical removal of threat without police assistance - Whether police should have been summoned - Causation. D

APPREHENDED BIAS - apprehension of bias by reason of prejudgment - long trial - discretionary evidentiary rulings against defendants, prior to determination of admissibility of plaintiff's documents - whether exercise of discretion involved prejudgment of ultimate question of admissibility of documents - whether comments in judgments on evidence gave rise to reasonable apprehension of bias by prejudgment

Appeal decision of CTTT

Defendant's Calderbank offer - indemnity costs - Notice to Admit Facts

CONTRACT - Claim for commission - Whether plaintiff's endeavours resulted in defendant's purchase of the property - No question of principle.

Criminal Law - sentencing - enter dwelling house in circumstances of aggravation - good prospects of rehabilitation.

CONTRACT- breach of contract - contract regarding development of land - where term of contract entitled plaintiff to fee of $3.45m upon obtaining gazettal of an amendment to the zoning of the land - term required land to be re-zoned in accordance with document entitled Amended Zoning Application or so that uses on rezoning substantially the same as allowed by the Application - time limit adhered to - whether wording of instrument ultimately gazetted allowed uses substantially the same as the uses which would have been allowed under the AZA - ESTOPPEL - estoppel in pais - representations by parties - whether alleged consent or acquiescence to draft amendment by defendant induced plaintiff to prosecute the rezoning application - whether defendant precluded from denying compliance with contractual term due to conduct alleged

Criminal law - sentencing - supply commercial quantity of methylamphetamine - ongoing supply of methylamphetamine - relevance of strength of Crown case to plea of guilty - accumulation of sentences - "special circumstances"

Sentencing - Crown appeal on ground sentences manifestly inadequate - order that sentences be served by home detention - respondents husband and wife - two infant children - no relatives in Australia - hardship on children justified order - outweighed need for deterrence. D

Parity of sentences, age of offenders, relative culpability, lack of remorse

JUDGMENTS - Request for withdrawal of - Ultimate finding of court not addressed in grounds of appeal - Possibility of finding was apparent to the parties - COSTS - Both parties partially successful - Bear own costs - ORDERS - Security for - Mortgage over property - Priority of

NEGLIGENCE - Failure to provide safe system of work - Whether lighting inadequate - Obscured puddle of water - Slip resulting in injury - No error by primary judge - EVIDENCE - Lack of detail - Poor English - Insufficient evidence regarding precise state of lighting - Defendant not required to establish level of illumination - Plaintiff's onus remains - Evidence - Expert evidence - Whether opinion ought to have been accepted - Evidence not specific to facts of case

WILL - solicitor's duty to take reasonable care to give effect to the client's intentions - whether beyond solicitor's retainer to check instructions given for a previous will - whether further enquiry should have been made as to ownership of property being disposed of - evidence as to usual practices of a solicitor

Costs - whether order for solicitor/client costs pursuant to District Court rules inconsistent with provisions in Pt 11 Div 5B of Legal Profession Act 1987 - not inconsistent - whether inconsistent with provisions in Pt 11 Div 6 not argued - Calderbank offer made pending appeal - whether should bring enhanced costs on appeal - no enhancement. D

NEGLIGENCE - OCCUPIERS LIABILITY - workplace - entrant (carpet cleaning contractor) attended to clean carpets in building recently transported bodily to new site - builder's foreman directed entrant to attend for work at 7.30 am before building was opened and gave him keys to front door - front door accessible by stairs - when he arrived there were mounds of wet mud at the foot of stairs - while carrying equipment he stepped over mound of mud and his foot slipped on mud on lowest stair. District Court awarded damages. Consideration of: duty of care of occupier in control of a workplace: assumption of exercise of reasonable care by entrant: contributory negligence of entrant: development of personal responsibility in negligence law: significance of entrant's knowledge of a danger [40] "It remains the law that allowance must be made for inadvertence and that an occupier owes a duty of care even to careless entrants." Held: decision on liability should not be disturbed. - DAMAGES - contentions that there were errors in assessment of damages, which related to factual questions, were rejected.

LIQUOR LAW - Licensing - Liquor Administration Board - Poker Machine Entitlements - Board's Approval of Transfer - Whether Board erred in finding that hotel owner had no financial interest in the hotelier's licence - Whether financial interests exhaustibely defined - Whether entitlements a species of property separate from the hotelier's licence - Whether hotel owner will hold any remaining poker machine entitlements on expiry or earlier determination of lease of hotel on a resulting or constructive trust for the current lessee

INTEREST - where amounts overdue prior to termination of contract - where contract stipulated interest rate payable on overdue amounts - where contract subsequently terminated - whether interest should be charged on overdue amounts at contractual rate or Schedule J rate after termination - whether termination brought an end to obligation to pay interest at the contractual rate - where judgment creditor also entitled to future rental instalments at date of termination - whether interest should be charged on damages for loss of future rental instalments at contractual rate or Schedule J rate - COSTS - indemnity costs - where offer of compromise served - where result in favour of judgment creditor substantially more favourable than offer of compromise - where testing process after offer of compromise made - SCR Pt 52A r 22(4) - whether effect of testing process such that order for indemnity costs should not be made

CORPORATIONS - SECURITIES - RECEIVER AND MANAGER - APPOINTMENT - Whether a secured creditor may properly appoint a receiver to a debtor's property in order that the creditor may realise its own property.

PROCEDURE [111] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents - Application to set aside - Sufficiency of forensic purpose to justify production.

ASSOCIATIONS AND CLUBS - incorporated associations - winding up - order for winding up made by registrar ex parte on proof of non-compliance with statutory demand applicable to company - separate winding up jurisdiction under Associations Incorporation Act - Corporations Act not applicable to winding up application and order affecting incorporated association - no power of registrar to exercise Supreme Court's jurisdiction to make such order

PROCEDURE [111] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents - Application for access - Whether documents relate to matter in issue in proceedings.

CRIMINAL LAW - appeal - importation of a prohibited import - quantity not less than trafficable quantity - whether trial judge erred in imposing a non-parole period that he had previously reasoned should be the head sentence - whether sentence excessive in all the circumstances

Crown appeal - inadequacy of sentences, use of Form 1 matters, offences committed while subject to community service order, special circumstances, delay in sentencing.

Murder - defence of mental illness.

Vendor and Purchaser - Existence of a contract - Whether a valid exchange occurred - Authority of agent to change contract so as to have identical counterparts - Intention of parties - Post-contractual conduct indicating existence of contract. - +Misleading and deceptive conduct - Whether purchaser entitled to rescind for misrepresentation - Whether representations made - Whether reliance upon alleged misrepresentation - Claim for repayment of deposit - Vendors claim for liquidated damages.Agent and Principal - Whether agent made false and misleading representations to induce principal to enter into contract - Whether agent owed duty to assess reasonableness of price paid - Whether agent negligent.No question of principle.

Appeal from Small Claims Division of Local Court - denial of natural justice - rejection of tender of statement not filed in accordance with practice note - denial of hearing - misconceived appeal.

Application for costs by successful defendant in criminal proceedings in Local Court refused - Exercise of discretion - Failure to give adequate reasons for the decision - Obligation on counsel to request adequate reasons - No error of law