Cases and authorities

APPEAL - Question of fact - Whether findings vitiated by errors - TORT - Negligence - Motor accident - Standard of care required of drivers.

Assessment of damages - adequacy of reasons - no question of principle. ND

NEGLIGENCE - tripping case - raised edge of driveway across footpath - obvious in daylight to pedestrian taking reasonable care for own safety - plaintiff tripped at night - evidence of street light across road - no evidence of state of illumination of driveway or that plaintiff could not or did not see it - defendant owed duty of care - correct question whether in breach of duty - action or inaction of reasonable council to be assessed on basis of pedestrians taking reasonable care for own safety - whether plaintiff had burden of proof that driveway not visible to such a pedestrian (yes) - whether other matters made it a hazard which, acting reasonably, the defendant should have rectified (no) - not shown defendant failed to act reasonably - negligence not established. D

INDUSTRIAL LAW - Industrial Relations Commission - jurisdiction - unfair contract - compensation and release agreement - contract governed by foreign law - territorial nexus of unfair contracts jurisdiction - where compensation and release agreement a variation of pre-existing employment contract - Commission jurisdiction correctly exercised - Industrial Relations Act 1996 ss 105, 106

INDUSTRIAL LAW - Industrial Relations Commission - jurisdiction - unfair contract - share sale agreement - not contract "whereby person performs work in any industry" - extension of Commission's jurisdiction over non-industrial contracts - industrial context of legislation - Industrial Relations Act 1996 ss 105, 106, 179 - limitation on Commission power to void or vary unfair contracts under s 106 - ADMINISTRATIVE LAW - privative clause - industrial relations legislation - where only interlocutory procedural decisions so far made by Commission - whether any decision or purported decision made by Commission - meaning of "decision" - no operative step taken - privative clause in s 179 inapplicable - principle of restraint - exercise of discretion to order prohibition where patent defect in Commission jurisdiction

PROCEDURE [77] - Supreme Court procedure - Jurisdiction and generally - Stay of proceedings - Appeal - Power to stay should not generally be exercised by Judge in trial Division but by Court of Appeal.

Appeal decision of Local Court Magistrate - breach of contract - misrepresentation

CRIMINAL LAW - Appeal against conviction - Whether guilty verdict on one count unreasonable and/or inconsistent with the verdict on another count.

DEFAMATION - individual described as having unsavoury reputation - whether finding by jury that not defamatory was peverse - matter of 'impression' - reluctance for appellate intervention - jury more able to determine whether imputation conveyed was defamatory

Building and Construction Industry Security of Payment Act 1999 (NSW) - Entry of summary judgment - Stay of judgment in part - Statutory scheme considered in relation to pending appeal

Expert evidence - report - exposure of bases for opinion

Appeal decisions of Local Court Magistrate - stay of proceedings refused

Contract - Proper construction of S.13(4)(b) of Building and Construction Industry Security of Payment Act 1999 (NSW) - Validity of payment claim

ARBITRATION [89]- Agreement between parties for arbitration not stamped- Arbitration conducted without stamping point being taken- Whether award enforceable. PROCEDURE [113]- Judgments and orders- Ante dating order- When to be contemplated. PROCEDURE [616]- Costs- Premature appointment of cost assessor- Consequences. TAXES & DUTIES [418]- Unstamped agreement providing inter alia for arbitration of disputes- Arbitration agreement produced in accordance with its terms- Arbitrator appointed and made award- Stamping point not taken before arbitrator- Whether award void.

Criminal law - variation of sentence - no question of principle

Motor Accidents Act 1988 - claim for damages sustained in motor accident - limitation period expired - proceedings not commenced within time so leave of the court required - whether plaintiff provided a full and satisfactory explanation for delay - whether plaintiff had been given and accepted advice not to proceed with car accident claim. (ND)

Contract - Guarantees - Co-guarantors - Contribution in equity as between contributing co-sureties - Release of one co-surety discharges other sureties as if creditor had released them from their obligations - Whether the availability of equitable contribution depends upon person claiming it having actually paid or being about to be required to pay an obligation from his own money - Whether surety, against whom creditor has obtained judgment on guaranteed debt is entitled to contribution from co-surety before surety has paid that debt-Failure of surety to demonstrate ability and willingness to pay his just proportion of guaranteed debt is factor to be taken into account in determining what, if any, relief is available to the surety in a contribution action - Futility of granting declaratory relief - Covenant not to sue - Whereas release of one of a number of joint, or joint and several, debtors releases all of them from the joint debt, a covenant not to sue does not-Distinctions between release and covenant not to sue - Jurisprudential provenance of rule that an indemnifier is estopped from averring contrary to a judgment handed down in previous relevant proceedings to which his/her indemnified was a party - Whether such an estoppel can arise in respect of a non-party co-guarantor - Principles - Res judicata - Cause of action estoppel - Issue estoppel - Anshun estoppel - General rule that only parties to the proceedings and their privies are bound by a res judicata, subject to a limited exception in respect of a non-party bound by contract to indemnify a party for a liability the subject of the first proceedings - Examination of indemnifier's exception to general rule that only parties and their privies are bound by a res judicata - Evidence - Admissibility by estoppel route

Insurance - Insurance Contracts Act 1984 (Cth) - Income protection life insurance policy - Insurer purports to terminate policy after making monthly payments of benefits for number of years - Insurer grounds its refusal to make further payments under s56 of Act on basis that plaintiff's claim fraudulent in that insured had stated in his claim forms that he was not working - Allegation that insured was in fact working - Insurer claims to have cancelled policy on basis that by his fraudulent claim, insured breached duty of utmost good faith under s13 of Act by deliberately or recklessly giving false answers in claim forms submitted by him - Onus of proof - General law proposition that it is not open to insurer to cancel policy after the event which renders it liable has occurred - Consideration in terms of Act section 56 (1) - Effect of Act section 54 (1) is that breach of duty of utmost good faith by insured entitles insurer to refuse to indemnify insured only to extent that insurer's interests are prejudiced by that breach - Act section 54 (1) provides the extent of the remedy for the breach of duty imposed by section 56 (1) - Whether inhibition in insurer being entitled to 'avoid the contract' to be found in section 56 (1) is only a reference to there being no entitlement to so avoid the contract ab initio - Whether no such limitation on entitlement of insurer to avoid the contract in futuro - Whether as a result of the sickness or injury insured unable to perform one or more of the important duties of his occupation - Policy provides no definition of "work" or "working" - Whether insured was from any, and if so what point in time, a person whom, if ever he had been, was no longer continuously disabled within meaning of the policy

CORPORATIONS [23] - Constitution and legal capacity - External litigation - Security for costs - Discretion of court - Impecuniosity - Whether reason to believe plaintiff will be unable to pay costs of defendant - Whether established.

WILLS PROBATE AND ADMINISTRATION - deletion of words from grant of probate

Joint trial - whether separate trials should have been ordered - whether miscarriage resulted - relevant principles - appeal allowed

Crown appeal on sentence - failure by Parole Board to implement recommendation of sentencing judge - whether can be taken into account on sentence for subsequent offence - no error of discretion - appeal dismissed

COSTS - contributory negligence - first appeal reversed by High Court - party successful on remitted hearing re contributory negligence - ultimate liability reduced - determination of costs in first and remitted hearing

NEGLIGENCE - Duty of care - Duty owed by employer to employee - Non-delegability - Duty of employer must take account of the possibility of inadvertent or negligent conduct of employees - Distinction between nature of duty owed to skilled tradesperson where appropriate equipment is supplied and duty owed to unskilled tradesperson where defective equipment supplied.

CATCHWORDS: APPEAL – CONSTRUCTION CONTRACTS – INSURANCE – SUBCONTRACTORS – INDEMNITY CLAUSES – EXCLUSIONS – PERSONAL INJURY – CROSS-LIABILITY – CONTRIBUTION – APPEAL DISMISSED – Appeal from decision of trial judge concerning a plaintiff’s alleged injury leaving the workplace – trial judge awarded the plaintiff common law damages (split equally) against the first respondent (the plaintiff’s employer and the second respondent’s sub-contractor) and against the second respondent (the site occupier and head-contractor) – both respondents issued cross-claims against each other for contribution and indemnity pursuant to s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – second respondent also claims on an alleged indemnity clause (7) in the subcontract with the first respondent – the first respondent in turn seeks indemnification from the appellant (under s C of the appellant’s insurance policy) of any additional amount it might be ordered to pay the second respondent – whether indemnity clause (7) is wide enough to cover second respondent’s own negligence or other fault – definition and scope of terms including ‘all sums’ and ‘for or in respect of...' Held: Appeal dismissed with costs.

Negligence - Duty of care - Escape of steer onto a public road - Preventative action alleged by the plaintiff no more likely to reduce the risk of escape than that taken by the defendant.

NEGLIGENCE - Whether it was open to the trial judge to make a finding of negligence based upon "common experience" in the absence of evidence - Engagement of an expert independent contractor by party - Occasional attendance of supervisor during work carried out by independent contractor - Nature of liability to employee. - REASONS FOR JUDGMENT - Adequacy of reasons - Whether failure to give adequate reasons necessarily leads to a new trial. - LIABILITY - Apportionment - Law Reform (Miscellaneous Provisions) Act 1946 s. 5(c) - Operation - Proportion of contribution or indemnity is a matter of discretion for the Court. - EMPLOYER/EMPLOYEE - Non-delegable duty of care.

Appeal from Small Claims Division of Local Court - refusal of adjournment - denial of natural justice

CORPORATIONS [270]- Dissolution- Company dissolved in 1988 after voluntary winding up- Whether can be restored- 1988 liquidator showing no interest- Whether fresh liquidator should be appointed.

Extension of limitation period - validity of cause of action - delay and prejudice

Murder - not worst case - no special circumstances

Appeal from Local Court on question of costs - extension of time - leave to appeal - lack of merit

LEASES - Agreement to lease - Abandonment - lease for 5 years with option to renew validly exercised by plaintiffs/lessees - delay by plaintiffs in executing renewal of more than two years - whether agreement to lease abandoned. - EQUITY - Specific Performance - Availability of remedy - whether affected by laches or acquiescence - whether lack of action amounted to an implied representation that performance of renewed lease would not be required - where no evidence of disadvantage or prejudice. - CONTRACT - Franchise Agreement - Illegality - where breach of Franchising Code of Conduct, a mandatory industry code - whether breach resulted in an illegal franchise agreement - effect of Part VI of Trade Practices Act 1974 (Cth). - CONTRACT - Franchise Agreement - renewal - no new agreement ever signed - whether continued operation of franchise business constituted renewal of agreement - effect of continued operation. - CONTRACT - Franchise Agreement - termination - effect of termination on covenant not to compete. - STATUTE - Interpretation - Trade Practices Act 1974 (Cth) - effect and meaning of ss 51AD, 82, 87

TRUSTS - purchase by de facto couple of house, with unequal contributions of purchase price - whether presumption of resulting trust rebutted - whether constructive trust arises - PROCEDURE - costs - whether indemnity costs order to be made on basis of "offer of compromise" or Calderbank letter (no question of principle)

RETAINER AGREEMENT - champertous agreement - Legal Profession Act 1987 - if recovery contingent upon successful outcome - repudiation - whether repudiation accepted - specific performance of agreement, apprehended bias - whether judge should have disqualified himself - whether waived right to seek disqualification

EQUITY - trusts - contributions to mortgage payments - whether gives rise to interest in property

Appeal from Consumer Trader and Tenancy Tribunal - Tribunal's jurisdiction to hear application - categorisation of building claim under s 89B Home Building Act 1989 - definition of building services within s 84 - breach of contract.

Sexual intercourse with child - child prostitution - detaining for advantage - unreasonable verdicts - inconsistent verdicts - evidence of previous sexual experience or activity of complainant - Criminal Procedure Act s 105 (now s 293) - probative value of evidence

Crown appeal - manifest inadequacy - Crimes Act 1900 s33 - malicious wounding with intent - Crimes (Sentencing Procedure) Act 1999 s56(3A)- assault by convicted inmate - partial concurrence - discount for plea - discount for assistance to authorities constituted by partial admissions only

APPEAL - Error of law - Deficiency of reasons - Finding of causation where medical evidence against causation - Finding open to specialist tribunal on the basis of lay evidence, but reasons required for making finding against medical evidence.

SUCCESSION - Family provision and maintenance - Widower's application - Failure to make finding as to assets of estate - Whether decision vitiated.

CONVEYANCING [184]- Caveats- Second mortgagee- A caveat by a second mortgagee will be removed if it purports to restrict first mortgagee's rights.

Vendor and Purchaser - Home Building Act 1989 - certificate of insurance - contract to do residential building work - subsequent contract for sale of residential property - termination - forfeiture of deposit - whether certificate of insurance is part of the title of the property - whether lack of insurance a defect in title enabling purchaser to terminate - whether subsequent purchaser obliged to procure insurance. (D)

CORPORATIONS [176]- Administration- Administrator seeking adjournment of winding up application- Director said to be ill and unable to formulate proposal for creditors for some weeks- Adjournment refused.

SUCCESSION - Executors and Administrators - Proceedings by executors or administrators - Determination of questions in administration of estate - Nature of right of residence granted to husband by testatrix - Residuary estate bequeathed to son - Whether forfeiture rule applies to acceleration of son's interest upon killing father - Son convicted of manslaughter - Whether certificate of conviction admissible - Whether son's interest postponed for period of life expectancy of father - Whether late application for modification of rule under Forfeiture Act 1995 should be granted - Whether rule should be modified - Whether only effect of forfeiture rule to delay son's entitlement

TORTS - Negligence - Negligent construction - Stormwater pipes - Hole in ground above pipes - EVIDENCE - Balance of probabilities - Onus of proof - Inadequate evidence to make out case