Cases and authorities

Arbitration - Commercial Arbitration Act 1983 (NSW) - Application for leave to appeal from Award - Principles - Insurance - Reinsurance Treaty - Whether risk covered by policy was a Trade Credit risk within class of business reinsured under Reinsurance Treaty

Tendency evidence - admissibility - civil action

Criminal Practice & Procedure - malicious wounding with intent - whether sentence excessive - whether sentences on other counts inadequate - or should have been accumulation (gaol assaults) s7(1A) Criminal Appeal Act 1912 - whether power to adjust sentences not the subject of appeal.

Criminal Practice & Procedure - Crown appeal against sentence - indecent assault - stepdaughter - single count - whether can add to minimal findings of trial Judge on facts.

Family Provision. Claim by a son of deceased's brother. Estate of deceased left to a close friend of deceased. Legacy ordered for plaintiff.

COSTS - whether facts and circumstances of the case warrant the making of an order for costs other than on a party/party basis - INDEMNITY COSTS - whether indemnity costs arise by reason of (1) lack of reasonable prospects of success, (2) contentions made during trial which were groundless and prolonged the hearing, (3) failure to accept offer of compromise

Leave to appeal decision of Local Court Magistrate - Small Claims Division - Assessment

PRACTICE AND PROCEDURE - where leave to amend cross-claim sought - where amendment to cross-claim seeks to join cross-defendants - whether amendment raises claim that is obviously futile - whether amendment raises claim that is premature - whether amendment should not be permitted on discretionary grounds - where risk of relitigation - CORPORATIONS LAW - construction of s 197(1) Corporations Act 2001 (Cth) - whether majority view in Hanel v O'Neill (2003) 48 ACSR 378 plainly wrong - s 233 Corporations Law - statutory interpretation - whether legislature intended s197(1) to re-enact in substance, and with same effect, s 233(2) of Law - whether legislature intended s 197(1) to replace s 233(2) with provision of opposite effect - whether legislative intention that s 197(1) achieve some other purpose - meaning of "entitled" in s 197(1), (2) of Act.

PRACTICE AND PROCEDURE - INTERNATIONAL ARBITRATION - proceedings for enforcement of international arbitral award - where plaintiff seeks order that there be no discovery until preliminary question resolved - where defendant alleges that plaintiff performed contract in manner illegal in place of performance - where defendant says that enforcement of award based on that contract is therefore contrary to Australian public policy - whether defendant in claim for enforcement of international arbitral award can raise defence where facts relevant to illegality of performance said to have been raised and argued before and subject to decision of arbitrator - s 8(7)(b) International Arbitration Act 1974 (Cth) - whether Court should hear questions separately.

DEFAMATION - imputations - capacity - form - whether imputations differ in substance

Family Provision. Application by former wife for provision. Deceased severs joint tenancy shortly before death and his interest passed to second wife. Small estate leading to sale of only asset. Orders apportioning costs and outstanding mortgage.

[CONTRACT] - Claims that the first defendant breached certain sale warranty clauses of a Share Sale Agreement with the first plaintiff whereby he sold to the plaintiff shares in an insurance broking company - Construction of clause in Agency Agreement requiring broker to transfer to insurer "money paid" to it by insureds - Provision for adjustment of purchase price reliant upon certain figures shown in "Specified Accounts" - Whether 'substantial performance' of Share Sale Agreement sufficient to trigger operation of clause adjusting puchase price - Whether Share Sale Agreement contained an implied duty to co-operate in the doing of acts necessary to the performance by the parties of fundamental obligations under the contract. - [TRADE PRACTICES] - Claims that the first defendant engaged in misleading and deceptive conduct by making representations in respect of the status of the relationship between the subject company and the insurer - Whether reliance by first plaintiff on representations.

EQUITY - unilateral mistake - whether elements exist - unconscionable dealing - intervention by equity even though affected party may have given consent - party affected by profound deafness and unfamiliarity with business and financial affairs - also heavily reliant on husband nearing death - dependence transferred to daughter who took unconscionable advantage

Appeal against conviction - attempt to obtain possession of prohibited import - verdict unreasonable - Crown Prosecutor's address - application for leave to appeal against sentence.

CRIMINAL LAW: Application for leave to appeal against sentence - attempting to possess prohibited imports - trafficable quantity of heroin - whether head sentence and non-parole period manifestly excessive.

Application of section 59 Crimes (Sentencing Procedure) Act 1999 - meaning of 'court'

CRIMINAL LAW - Appeal against conviction - Accessory after the fact to murder - Where defence case was that a known person had, to the exclusion of the accused, committed the offence - Directions to jury regarding the onus of proof - Directions to jury regarding the standard of proof - Directions to jury regarding possible deficiencies in the police investigation - Effect of rule 4 of the Criminal Appeal Rules (NSW) - EVIDENCE - Expert opinion evidence - Expert opinion regarding the effect of drug use generally - Whether expert opinion going to a fact in issue - s 55 of the Evidence Act 1995 (NSW) - Credibility evidence - ss 102, 103, 104 and 106 of the Evidence Act 1995 (NSW) - Tendency evidence - s 97 of the Evidence Act 1995 (NSW) - Refusal to allow cross-examination of witness regarding criminal conviction - Admissibility of digital audio tape recordings - Ad hoc expert - Where some recordings indistinct and unintelligible.

PROCEDURE - Summary disposal - Striking out defences - Whether denial of contract and performance is impermissible "pleading the general issue" - Whether finding contrary to defendant's affidavit should be made without cross-examination on summary judgment application - Whether and to what extent determination of terms of contract can be addressed at hearing as to damages after judgment for plaintiff given - Whether cross-defendants bound by determination of damages in hearing between plaintiff and defendant - Whether stay of damages hearing should be granted.

Practice and Procedure - setting aside of subpoenas - Principles - Obligations to furnish particulars of allegations of knowledge of defendants

PRACTICE & PROCEDURE - abuse of process - where cross-defendants allege cross-claimant aware of information alleged as material facts in cross-claims only as result of privileged and confidential communications made for purposes of or in course of mediation - where mediation agreement contained confidentiality clause - analogy between without prejudice discussions and mediation - whether paragraphs should be struck out for abuse of process - whether conspiracy claim has no prospect of success - whether facts alleged in cross-claim show that cross-claimant has suffered damage - whether claim should be dismissed pursuant to Pt 15 r 26

TRUSTS AND TRUSTEES - trust for sale with power to postpone sale and retain land in present state of investment - whether beneficiary entitled to transfer of legal estate when power of postponement exercised - whether trustees for sale with power to retain in same state of investment can subdivide land before selling - claim for "account" concerning administration of estate - operation of doctrine of laches - WORDS AND PHRASES - "retain in the same state of investment" - SUCCESSION - EXECUTORS AND ADMINISTRATORS - administration - whether order of application of assets under section 46C Wills, Probate and Administration Act 1898 affects duty of executors in realising assets for payment of debts and testamentary expenses - EQUITY - defences - laches - whether delay of predecessor in title relevant

REMEDIES - interlocutory injunction - significance of delay in seeking injunction (para 40) - whether requirement for "special services" by employee before injunction granted to enforce post-employment restraint, when case not put on basis of protecting confidential information - TRADE AND COMMERCE - TRADE AND COMMERCE GENERALLY - restraint of trade - employee's contractual post-employment restriction - enforceability by interlocutory injunction

CRIMINAL LAW - appeal against conviction - murder - plea of not guilty - co accused jointly indicted - whether verdict of the jury was unreasonable and cannot be supported having regard to the evidence - whether a miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that he had planned the murder of the deceased - whether the trial miscarried by reason of the publication on the Internet, both before and during the trial, of two interlocutory judgments.

NEGLIGENCE - negligence claim in respect of injuries sustained during and after birth at hospital - whether arguable case that the hospital, though a community hospital, was equipped to deal with anticipatable consequences of mother being carrier of haemophilia B - PROCEDURE - Whether denial of leave required under proviso s6(4) of the Law Reform (Miscellaneous Provisions) Act (NSW) ("the Act") to enforce a charge against insurance monies under policy covering negligence should stand - contractual terms of insurance did permit insurer to disclaim liability - effect of s54 of Insurance Contracts Act 1984 (C'th) on contractual right to disclaim - no proceedings extant that s54 did not preclude disclaimer - can FAI General Insurance Co Ltd v Jarvis be distinguished or followed - Consideration of whether Jarvis correctly decided - whether appellate court should be reconstituted as five judge court - Court's discretion to grant leave - leave granted under s6(4) of the Act

PROCEDURE - costs - in proceedings in the Court of Appeal, notice of compromise served offering to accept the same number of dollars as awarded in Court below - effect of offer of compromise is to offer to forego interest - whether indemnity costs to be ordered - manner of operation of Part 52A rule 22(4) Supreme Court Rules - whether the offer involved a real compromise

TORTS - Negligence - Vicarious liability - Unsafe system of work - Unsafe place of work - Fall from truck - Scope of employment - reg 73(3) Construction Safety Regulations 1950 (NSW) - 'Building work' - 'Equipping' - PRACTICE AND PROCEDURE - Negligence - Particular of - Not pleaded - Leave to amend - Prejudice

TORTS - Negligence - Personal injury - Scope of duty of care - Reasonable response - Obvious Danger - Inherent danger - Duty to warn - Unknown and variabe depth - Diving accident - TORTS - Negligence - Personal injury - Existence of duty - Contributory negligence - Causation - Apportionment - Damages - Volenti - PRACTICE & PROCEDEURE - Fairness - Raising argument post-appeal - Not run at trial - Not argued on appeal

PRACTICE & PROCEDURE - security for costs - application for order for security against two corporate plaintiffs, where person who controls them is also a plaintiff - plaintiffs unable to provide security - whether presence of individual plaintiff should prevent court from ordering corporate plaintiffs to provide security - whether proceedings by individual plaintiff should be stayed until corporate plaintiffs provide security as ordered - whether financial ability of litigation funder is relevant - whether corporate plaintiffs must prove their prior financial position in order to establish that the defendants' wrongdoing led to their impecuniosity - other relevant considerations in security for costs application - considerations relevant to quantum of security - PRACTICE & PROCEDURE - strike-out application - whether it is reasonably arguable that notice of intention to terminate an agreement was given, though the address in the agreement was not used - INDUSTRIAL RELATIONS - remuneration cap under s 108A of Industrial Relations Act - instalments of base remuneration credited to loan account with employer, and subsequently that loan is capitalised, by the issue of shares, during the 12 months prior to termination of employment - whether application of loan account should be taken into account in determining whether the remuneration cap was exceeded - COSTS - circumstances in which it is appropriate to order that costs be assessed and paid forthwith

Family Provision. Claim by two children of deceased's first marriage. Deceased's joint property received by her third husband. Orders made for legacies and designation of notional estate.

FAMILY PROVISION -- de facto relationship -- long and happy relationship -- declining health -- need for assisted care accomodation -- competing needs

CRIMINAL LAW: Appeal against conviction - aggravated sexual assault - adequacy of directions about intoxication of complainant and appellant. - Application for leave to appeal against sentence - disparity from sentence passed on co-offender - whether special circumstances should have been found.

Appeal against severity of sentence - Size of adjustment to statutory ratio where there are special circumstances - Power to correct technical error in sentencing - Aggravating factors not to be counted if an element of the offence

APPEAL AGAINST CONVICTION - whether similarity evidence wrongfully admitted - whether directions to jury on identification evidence were erroneous - leave to raise ground of appeal refused as no objection taken at trial - whether documents wrongfully admitted - only prejudicial because probative of guilt - whether judge erred in failing to recount details of criminality of witness - whether judge erred in failing to tell jury which evidence provided corroboration - whether judge failed to fully sum up evidence of witnesses - whether accused was incompetently represented - whether trial miscarried - whether verdict unsafe - APPEAL AGAINST SENTENCE - whether sentence unduly harsh and severe - whether judge failed to take accont of youthfulness, rehabilitation or gravity of the offence.

Vendor and purchasers - sale of farming property - representation as to Departmental approval to use of part for farming - clause in contract entitling purchasers to terminate if letter evidencing approval not obtained - another clause giving right of entry to prepare ground for crops in locations first approved by vendor - entry and planted and tended crop - representation false - letter not obtainable - purchasers did not terminate - vendor purported to rescind for other reasons - refused to allow purchasers to enter - rescission held ineffective - sale completed - too late to prepare ground for a further crop - whether no causation from false representation because purchasers could have terminated but did not - held causation remained because decision to continue with contract a reasonable decision itself consequential on entry into the contract under the influence of the false representation - whether the loss of profits from the further crop was too remote - held no because, on the evidence, within the contemplation of the parties - whether that loss of profits not caused by refusal of entry because locations for the further crop not proposed and so not approved by vendor - whether this point could be taken on appeal when not taken at trial - whether vendor's conduct dispensed with need for prior approval of locations - held point could be taken and succeeded - damages reduced. D

CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - contractual right to rescission arises through non-registration of plan of subdivision - whether vendor elected to keep contract on foot after right of rescission arose

Family Provision. Claim by a former de facto partner and the son of deceased. Estate not large enough to accommodate all claims particularly having regard to the costs incurred. Orders made in favour of both plaintiffs.

EQUITY - licences - equitable nature of irrevocable licence - whether principle that licensor should be estopped from asserting licence in fact revocable satisfied on facts - Plaintiff mother of Defendant - Plaintiff contributes substantial sum to construction of units - whether sum contributed by Plainitff to Defendant for building purposes on vacant land of nature of gift, loan or given on assumption of an expectation of conditional right of occupancy - whether financial contribution establishes Plaintiff's equity in the form of an irrevocable licence - whether Court should satisfy Plaintiff's equity and estop Defendant from denying Plaintiff's right to occupancy REAL PROPERTY - caveats - whether equitable interest in form of irrevocable licence entitled to equitable estoppel enough to found proprietary right capable of supporting continued registration of caveat

CORPORATIONS [178] - Voluntary administration - Jurisdiction and powers of court - General power to make orders - Power to court to make such order as it thinks appropriate.

Criminal Law - sentence for conviction of knowingly take part in the supply of a prohibited drug, being methylamphetamine, which was not less than the commercial quantity for that drug and a charge of growing cannabis plants under s 166 of the Criminal Procedure Act.

CORPORATIONS - managed investment schemes - scheme required to be registered not registered - acknowledgment by operator that scheme should be wound up - proposal by operator that operator be allowed to sell scheme property with accountant as agent - no other functionary proposed by operator to administer or superintend winding up - whether court should accede to operator's proposal - whether independent person should be appointed as receiver to wind up scheme

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination should be quashed - jurisdictional error - jurisdictional fact - whether adjudicator in jurisdictional error by determining amount due where no reference date to which payment claim related - whether existence of reference date a jurisdictional fact - whether adjudicator erred in law by determining application on basis that amendments to Act applied - whether defects liability period commenced "on" date of practical completion or "from" date of practical completion - meaning of time commencing "on" a day - whether validity of notice affected by illegibility - whether adjudicator erred in law by making allowance in determination for costs of preparation of claim - construction of "for" in "for construction work" in s 4 definition of "claimed amount" - whether adjudicator erred in law by allowing in determination amount for delay costs and delay damages - whether adjudicator erred in law by allowing in determination amount for compound interest - whether relief should be withheld on discretionary grounds when point not taken before adjudicator

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether adjudication determination should be quashed - Where alleged that adjudicator determined claim on basis explicitly disavowed by second defendant and not said to be relevant by plaintiff without giving plaintiff notice of intention to do so - Whether determination vitiated by denial of natural justice - Whether determination vitiated by adjudicator's alleged failure to consider relevant provision of contract and plaintiff's submissions thereon - s22(2)(b) - Whether payment claim compiled with s 13(2)(a) of the Act - Whether discretion to grant prerogative relief should be exrcised

Criminal law - Crown appeal against sentence - no question of principle

COSTS - Matter out of time - Application for extension - Reasons for delay provided - Limitation Defence - Not withdrawn upon request - Reliance upon Calderbank letter - Opponent not agree for application and substantial hearing to be heard together - COSTS - Belated motion - Application not argued on appeal

CONVEYANCING [189] - Land titles under the Torrens system - Caveats against dealings - Removal - Onus of proof - Onus on caveator to satisfy Court there is serious issue to be tried - Necessity for service of application on caveator.

Corporations Law. Application under Corporations Act to set aside demand under s459G of the Corporation Act. Demand set aside. No matter of principle.

INDUSTRIAL RELATIONS ACT 1996, ss 164(2) & 180 - contempt - whether Commission had jurisdiction to hear and determine contempt proceedings - jurisdictional error - whether fact of guilt a jurisdictional fact (D)

Meaning of "motor vehicle" in Motor Accidents Compensation Act - whether a trolley shunter is a motor vehicle - natural and ordinary meaning of vehicle

INDUSTRIAL LAW - Industrial Relations Commission - jurisdiction - unfair contract - performance benchmark in option deed - where Commission dismissed notice of motion to strike out for want of jurisdiction - where overall arrangement did not lead directly to performance of work - Court of Appeal reluctant to intervene when matters of fairness raised in jurisdictional challenge - whether work as promoter, director and member of board property subcommittee is "work in any industry" - where contract or arrangement must pre-date relevant work - where Commission lacked jurisdiction over any contract or arrangement pre-dating Claimant's incorporation - whether s 179 bars grant of prerogative relief - Industrial Relations Act 1996 ss 105, 106, 179