Cases and authorities

CONVEYANCING - Relationship of Vendor and Purchaser - Restrictive Covenants - Whether a common building scheme existed - Elements to be established - Whether reduction in mutuality of burden and benefit brought scheme to an end - Whether onus of proof lies on party asserting non-enforceability of the restrictive covenant

Claim by de-facto wife - substantial estate - long and harmonious de-facto relationship - failure by deceased to make adequate provision for plaintiff - adequate and proper provision - principles to be applied - contribution by plaintiff to welfare of deceased and accumulation of his assets - right to reside - proper income for plaintiff - capital sum to meet extingencies of life.

Separate trial application: principles and application - - Admissibility of telephone intercept material - - Conspirator's rule re admissions and admissibility - - Admissions: a jury question

Extension of limitation period - policeman - psychiatric disorder - delay, explanation for delay and presumptive prejudice.

Traffic Law - offences - infringement notices - due service - enforcement orders - annulment of - proceedings for declaration - discretion

EQUITY - solicitor's lien - whether available where solicitor does not make disclosure under s 75 of Legal Profession Act - PRACTICE AND PROCEDURE - determination of separate question - whether order should be made where solicitor seeks to establish lien but costs have not been assessed

NEGLIGENCE - liability of doctors in a medical centre for inadequate counselling to female member of couple at a joint consultation where the couple sought advice as to sexually transmitted disease including HIV preparatory, as known to the doctor, to engaging in unprotected sex and getting married in circumstances where female member was later to be deceived by her prospective husband into believing that he was not HIV positive when he was - relevance of prospective husband coming from a known high risk area for HIV - relevance of test results being provided to female member separately through Receptionist - failure to advise on the statutory requirement for consent to disclosure of test results under s17(2)(b) of the Public Health Act 1991 (NSW) as well as failure to advise as to the manner of disclosure and possibility of discordant results - relevance of inadequate post-test counselling not necessary to decide - effect of s17(2)(b) of the Public Health Act 1991 (NSW) - relevance of informed consent - causation - common sense and two stage approach - cross-appeal for additional costs of second child conceived from a partner, known to be HIV positive, after female member of couple aware of having herself become HIV positive - scope of liability for consequences of negligence and causation aspects - anticipated loss of capacity to care for child after it turns 12 as result of HIV and implications for damages - public policy issues - requirement to mitigate - distinction between legal policy, public policy and legal principle - recovery disallowed for loss of capacity to care for second child after second child no longer able to be cared for by mother.

ALTERNATIVE DISPUTE RESOLUTION - MEDIATION - EVIDENCE - Document signed at mediation - Alleged to be a binding agreement - Admission into evidence opposed - Whether admissible.

PRACTICE and PROCEDURE - Particulars - Plaintiffs (company and liquidator) claimed legal and equitable remedies against Directors and shadow directors relating to pre-liquidation transactions alleged to be in fraud of creditors - Statement of Claim did not contain particulars of creditors and debts - after lengthy inaction pending outcome of Wakim litigation, series of Registrar's directions required particulars and were not adequately complied with - defendants applied for stay or dismissal when proceedings pending over 7 years - plaintiffs contended that particulars should be required only after subpoenas and discovery - proceedings dismissed under Pt.33 r.6(6).

SENTENCE - MURDER - PLEA OF GUILTY - OFFENCE COMMITTED THIRTEEN YEARS PRIOR TO ARREST - INGREDIENTS OF SENTENCE ASSESSMENT IN CIRCUMSTANCES

Leave to amend - aggravated damages and negligence - exemplary damages - substantive punishment - adequacy of particulars - striking out of matter in a document - irrelevant material in Part 33 rule 8A statement and matters that should be specifically pleaded.

Family Provision. Application by daughter of first marriage. Estate left to deceased's second wife. Legacy awarded to plaintiff. Comments on the obligation of parties to place before the court their full financial circumstances.

PRACTICE AND PROCEDURE - costs - meaning of "party" in Part 52A rule 4

Appeal from Local Court - admissibility - challenge to findings of fact - no error of law.

Criminal law - application for leave to appeal pursuant to s5F of the Criminal Appeal Act 1912 from the Land & Environment Court of NSW refusing to grant a permanent stay of criminal proceedings in that court - extended doctrine of res judicata - whether the doctrine applies only where the question is the same - whether the question was the same - construction of "substantially the same development" in s96(6) of the Environmental Planning & Assessment Act 1979, and of "not inconsistent with" in cl145(1) of the Enivronmental Planning & Assessment Regulation 2000

NEGLIGENCE - whether duty of care to prisoner who was incarcerated and in course of incarceration suffered post-traumatic stress disorder where incarceration prolonged by reason of failure of Police and DPP to invoke well established fast-track arrangements for laboratory processing for detection of drugs - extent of immunity of Police - extent of immunity of DPP in relation to court proceedings involving the prisoner - relevance of breach of prosecutorial guidelines.

TORT - Negligence - Hole in footpath - Whether a hazard - Whether council knew or ought to have known of it.

CORPORATIONS - reinstatement of deregistered company - validating order under s 601AH(3) - (no question of general principle)

TORTS - NEGLIGENCE - where economic or financial loss - allegations that defendant made statements at auction of land of the plaintiffs tending to discourage bidders - no question of principle

Contract - Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - Amendments effected by the Building and Construction Industry Security of Payment Amendment Act 2002 - Whether following amending legislation the Act requires the respondent upon receiving a payment claim to set out any objection it may have to the claim (whether it be an objection arising out of the contract or otherwise) in a payment schedule, failing which the respondent is liable to pay the claim whether or not the claimant be in fact entitled to the progress payment - Application for summary judgment - Whether General Steel principles apply upon an application for summary judgment pursued by reference to the Building and Construction Industry Security of Payment Act 1999 where the parties final rights are reserved

fiduciary obligations - solicitor/client relationship - continuing relationships - duty of disclosure - conflict of interest - improper profit - s42 Fair Trading Act, misleading and deceptive conduct

APPEAL - competency - appealable amount - plaintiff claiming increased damages of appealable amount - appeal competent - APPEAL - practice - prolix notice of appeal - struck out - APPEAL - practice - notice of appeal alleging actual bias of trial judge - grounds expressed in scandalous terms - filed without express instructions of appellant - struck out - APPEAL - practice - security for costs of appeal - personal injury case - appellant impecunious - no order for security for costs of appeal - COURTS and JUDGES - actual bias - not to be alleged without express instructions - D

Interrogatories - necessity - s7A trial issues

EQUITY - rectification for mistake - whether parties under common mistake - whether one party took unconscionable advantage of unilateral mistake by other party - CONTRACT - "further assurance" clause in commercial contract - effect and operation of clause

Stay of proceedings in Commercial List pending determination of related proceedings in Industrial Relations Commission - Application to lift stay for breach of undertakings to diligently prosecute proceedings before Industrial Relations Commission

CONTRACT - subcontract - where demolition works not done in accordance with WorkCover permit but in accordance with unapproved work plan - where contaminated materials not properly removed from the work site - whether works done in contravention of Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001 - whether serious breach of subcontract - whether breach gave rise to contractual right to issue show cause notice - whether breach incapable of remedy - no issue of principle

COSTS - Calderbank letters - whether offer open for one day only unreasonably rejected - whether proposal that other side capitulate involves compromise - PRACTICE AND PROCEDURE - whether undertaking as to damages given

Imputations - capacity - form - true innuendos - "refer to drawer"

WILLS and ESTATES - intestate domiciled in Israel with real property in New South Wales - no surviving next of kin - bona vacantia

PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Issues intertwined.

Commercial Arbitration - Leave to Appeal from costs award - Principles

Civil proceedings - application for security for costs - complex case - assignment by liquidator of substantial portion of right to action - impecunious plaintiff - application of Part 52 of Supreme Court Rules - exercise of discretion - whether inherent jurisdiction applicable - relevant discretionary considerations.

PRACTICE AND PROCEDURE - summary dismissal - application by one of two defendants - separate breaches of different contracts pleaded - time for filing evidence expired - no evidence against second defendant

PRIVATE INTERNATIONAL LAW - exclusionary rule - whether claim directly or indirectly for enforcement of laws securing governmental interest of foreign state - characterisation of consumer protection statutes - application of rule where proceedings brought for compensatory purpose of reimbursing defrauded consumers - TRUSTS - presumed or resulting trust over stolen funds - equivalent of express trust for purposes of duty to get in trust estate - equitable tracing - where legal owner has good claim at law - when election to trace in equity permitted - BANKING AND FINANCE - fraud - knowing receipt - special treatment of banks - bank as mere depository - whether conduct inconsistent with trust of which bank had constructive knowledge.

LIMITATION OF ACTIONS - Motor accidents - Extension of time - Loss of evidence - Whether fair trial likely - Onus of proof - Relevance of prima facie weakness of plaintiff's case - Relevance of alternative remedy

BANKING - foreign currency - US dollar account in Sydney - transactions on account effected through correspondent banks in New York - US dollar funds in Sydney account not attachable in New York - depositor has no proprietary interest in funds deposited with bank - EXECUTION - debt owed by bank on Sydney account - debt not attachable by process against debtor bank in New York - PRIVATE INTERNATIONAL LAW - debt owed by bank on Sydney account - situs of debt in New South Wales - discharge of debt governed by proper law - proper law that of New South Wales - debt not discharged by attachment in New York - D

TORT - Negligence - Trip on footpath - Defective repair - Verdict for defendant - Whether leave to appeal should be granted.

APPEAL and NEW TRIAL - issues of liability and damages linked - new trial limited to damages not appropriate - DAMAGES - causation - contributory cause sufficient - ND

EQUITY - asset preservation order - variation - power to vary conditionally

Torts - negligence - occupier's liability - no question of principle

PRACTICE AND PROCEDURE - order barring the bringing of proceedings until payment of certain costs - construction of the order - effect of observations made in Court of Appeal when appeal from the order was dismissed - effect of observations made arguendo - principles on which orders are made barring fresh proceedings until costs of an earlier unsuccessful proceeding are paid - remedy for delay in assessment of costs - effect of statutes of limitations - power to make declaration as to meaning of a Court order.

CORPORATIONS - voluntary administration - appointment of administrator after Court has decided a provisional liquidator should be appointed, but before orders actually pronounced making such appointment - whether application for provisional liquidation should be adjourned - whether administrator appointed by directors should be replaced

PROCEDURE [454] - Discovery and interrogatories - Discovery and inspection of documents - Production and inspection - Grounds for resisting production - Other grounds - Fishing expedition.

EQUITY - interlocutory injunctions - relevance of balance of convenience where plaintiff seeks to restrain breach of negative stipulation in contract

CORPORATIONS - voluntary administration - extension of convening period - intervention of receiver - (no question of general principle)

Defamation - Assessment - Damages - loss of earning capacity - aggravated compensatory damages for failure to apologise and falsity of imputations

Criminal Practice & Procedure - Crown appeal on sentence - dangerous driving occasioning grievous bodily harm - 2-1/2 years imprisonment by way of periodic detention - whether inadequate - application of guidelines - delay - discretion on Crown appeal.

CORPORATIONS - voluntary administration - extension of convening period - director's late offer to develop deed proposal with assistance of external accountants - relevant considerations - whether order should be made to permit meeting to be held within extended period