Cases and authorities

RECTIFICATION - unilateral mistake - put and call options and contracts arising from their exercise - meaning and purpose of put and call options - mistake of one party's solicitor as to terms of contract known to the other party who concluded contract avoiding drawing attention to the mistake - unconscionable conduct.

Criminal Law - Sentencing - supply heroin - prisoner previously sentenced for another offence in respect of the same criminal activity.

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether s 7(2)(a) applicable - meaning of "forms part of" in s 7(2)(a) - legislative purpose of s 7 - whether plaintiff may serve a progress claim under s 13 - whether "progress payment" has same meaning in Act as it does under the construction contract - effect of amendments to (inter alia) s 13 by Act No. 133 of 2002

Evidence - Expert evidence - report - failure to set out relationship of findings to expert knowledge.

PROBATE - revocation of grant - subsequent will propounded - conflicting evidence as to date of signature of deceased - order for revocation and for grant in solemn form of later will

ADMINISTRATIVE LAW - TRIBUNAL - JURISDICTIONAL OR FACTUAL ERROR - ESTOPPEL - PROCEDURAL FAIRNESS - CONSTRUCTION OF CLAUSES IN STATUTORY INDEMNITY SCHEME - SEPARATE QUESTIONS DIRECTED

PROCEDURE - costs - assessment of - liability for costs in dispute - powers of Costs Assessor - extension of time to appeal etc - relevance of delay - WORDS and PHRASES - "assessor".

PRACTICE - Unrepresented litigant - Assistance by Court - Extent to which such assistance appropriate - Relevance of burdens of costs and time on other party - Case listed for hearing at time when unrepresented litigant said she was unavailable - Case heard in her absence and decided against her - Whether denial of natural justice or appealable error.

Administrative law - collateral challenge in Local Court - validity of council order - Environmental Law - need for development consent

Contested application for directions that parties serve statements of lay witness by affidavit - refusal of Registrar to deal with application because it was contested - application fixed before Master for hearing.

Practice - Pleading - Amendment - Cause of action - Workcover - Prohibition notice - Maxim - Omnia praesumuntur rite et solenniter esse acta (all acts are presumed to have been done rightly and regularly) - Application of maxim to public officials - Application to Workcover inspectors.

Review decision of Registrar - whether a defendant should be joined or removed

Application pursuant to s474D of the Crimes Act 1900 (NSW) - Inquiry into conviction - Fresh evidence - DNA evidence

Contested application to set aside subpoena - refusal of Registrar to deal with application because it was contested - application fixed before Master for hearing.

APPEAL and NEW TRIAL - amendments allowable on appeal - prejudice - onus of proof - conduct of trial - PLEADING - relief available to successful party limited by pleadings - D

appeal from Magistrate's decision - setting aside subpoena - legitimate forensic purpose

COSTS - interested persons granted leave to be heard without becoming parties - other interested persons attending without such leave - whether costs orders in favour of such persons may be made against party - factors relevant to such award - non-party subjected to subpoena - jurisdiction to award costs - whether award confined to fixed sum

TORTS - NEGLIGENCE - Medical negligence - Failure of anaesthetic during operation - Adequacy of dosage - Need to show that defendant's opinion as to adequacy was such as should not have been held by a reasonable anaesthetist, or that otherwise the defendant departed from proper practice.

CORPORATIONS - winding up - application to wind up in insolvency - application by person who has served a statutory demand that has not been satisfied or set aside, for substitution as applicant for winding up - whether defendant may challenge applicant's standing as a creditor on ground that there is a genuine dispute as to the existence of the debt

[Commercial Arbitration] - Party to arbitration in administration - Whether arbitration proceedings are - "proceedings in a court" within the meaning of s440D of the Corporations Act 2001- Whether leave necessary - Application for leave to proceed with application for security for costs

CORPORATIONS - proceedings challenging voidable transactions - extension of limitation period - ex parte application but with consent of person affected

Crown appeal against leniency - sentence - specially aggravated breaking and entering - domestic violence - seriousness - breach of apprehended violence order - seriousness of offence - nature of offence - sentence increased

CRIMINAL LAW - CROWN APPEAL - CONVICTION OF MANSLAUGHTER ON INDICTMENT FOR MURDER - NECESSARY FINDING BY JURY THAT OFFENDER DID NOT INTEND TO KILL OR CAUSE GRIEVOUS BODILY HARM - ASSESSMENT OF SENTENCE REQUIRED TO BE COMPATIBLE WITH THAT FINDING - AGGRAVATING FACTORS OF OFFENCE WHILE ON BAIL AND PREVIOUS CONVICTION FOR VIOLENT OFFENCE - PROPENSITY FOR FURTHER OFFENCE - PROTECTION OF THE PUBLIC - DISCUSSION OF STANDARD OF PROOF IN RESPECT OF POSSIBLE COMMISSION OF FUTURE CRIMES - EFFECT OF MANDATORY APPROACH ON BASIS THAT OFFENDER INTENDED SOME CONSEQUENCE LESS SERIOUS THAN INFLICTION OF GRIEVOUS BODILY HARM ON ASSESSMENT OF SENTENCE - NO DEMONSTRATED ERROR IN IMPOSITION BY SENTENCING JUDGE

BUILDING CONTRACT - breach - FAIR TRADING ACT 1987 - misleading and deceptive conduct - CONSUMER, TRADER AND TENANCY ACT 2001 - judicial review - appellate jurisdiction - "a question with respect to a matter of law" - whether denial of procedural fairness. (ND)

APPEAL - MEDICAL INSURANCE - HEALTH INSURANCE - STATUTORY INTERPRETATION - INSURANCE CONTRACTS ACT 1984 (CTH) - Dispute on medical insurance policy as to whether the exclusionary provisions refer to the diagnosis or the occurrence of an illness or disability - whether Insurance Contracts Act (particularly s47) over-rides the policy provisions on this issue - Held: Appeal allowed - Insurance Contracts Act (s47) construed in the context of the Act as a whole - the purpose of s47 is to mitigate the effects of certain contractual provisions which seek to avoid liability - reference in the terms of the contract not to pre-contractual pathology, but to post-contractual diagnosis - respondent to pay appellant's costs of both the appeal and the trial at first instance.

CONTRACTS - Contracts Review Act 1980 (NSW) - whether contract of mortgage unjust - whether contract existed for the purposes of the Act - effect of forgery - section 9 - whether procedural injustice - whether substantive injustice - section 7 - whether relief should be granted - EQUITY - unconscionability - whether unconscionable where personal circumstances of the respondent not known to the claimant - whether nature of the transaction unconscionable

Criminal Law - stay of proceedings - double jeopardy - previous civil penalty proceedings

Appeal decision of Local Court Magistrate

Manslaughter - plea of guilty - excessive self defence.

Family Provision Act - claim by adult son of deceased - legacy provided for the plaintiff inadequate - debt due to the deceased by the plaintiff forgiven - further provision made for the plaintiff. - Wills - construction of will.

Resulting trust in relation to home acquired wholly (save as referred to in next point) with the man's money in connection with a de facto relationship between him and a woman - whether position affected by use of a joint borrowing the common intention being that it would be repaid wholly by the man, the woman having decided at the time of the acceptance of the loan that the house would not be her home - circumstances in which the common intention made it unconscientious for the woman to assert a beneficial interest in the property - circumstances in which, the substratum of the relationship having been removed, it would be unconscientious for the woman to enjoy the benefit of the property.

Criminal law - fair trial - separate trial ordered by Court of Appeal - trial held back to back with related trial - sensational media reporting of guilty verdict in earlier trial - Crown prosecutors - inapproprateness of comments to media. (D)

PROCEDURES, COSTS, contribution between parties, apportionment of costs on appeal, Calderbank letter, settlement offer, expiration of settlement offer, failure to accept settlement where settlement requires agreement of several parties

INSURANCE - compulsory third party - mechanic in charge of vehicle - driver as defined - requests person outside vehicle to start motor - starter also driver - starter injured - whether vehicle driven by mechanic - D

ADMINISTRATIVE LAW - judicial review of determination of adjudicator under Building and Construction Industry Security of Payment Act - whether jurisdicitonal error of law - unpaid balance of lump sum price awarded as progress payment where contract terminated and part of contracted work incomplete

MORTGAGES [58][63]- Power of sale- Allegation of inadequate price- Remedies of mortgagor/guarantors- How far general law affected by Corporations Act 2001 (Comm) s 420A.

COSTS - prosecution under Customs Act - notice of motion for summary judgment not pressed - whether appropriate to decide costs on the basis that notice of motion for summary judgment likely to have succeeded if pressed - whether summary judgment an appropriate remedy - whether costs should be dealt with by trial judge

ADMINISTRATIVE LAW - judicial review of determination of adjudicator under Building and Construction Industry Security of Payment Act - whether jurisdictional error of law - requirement that adjudicator have regard to contract price in assessing value of work - whether adjudicator exercised judgment

Application for bail - exceptional circumstances

EQUITY [378]- Injunctions- Whether undertaking offered a substitute for final injunction- Limited provision to be made in case of material change in circumstances.

CRIMINAL LAW - applicant charged with 3 counts of murder - pleas of guilty - 3 sentences of life imprisonment - whether sentences manifestly excessive - whether subjective circumstances enabled or required trial judge to impose lesser sentences - relevant principles concerning the application of s 61(1) Crimes (Sentencing Procedure Act) 1999.

LIMITATION OF ACTIONS - When cause of action arises in case of retrospective legislation - Postponement of the bar - Confirmation

APPEAL - COMPENSATION - ERRONEOUS DIRECTION AT TRIAL - LENGTHY TRIAL - COSTS - Trial judge directed the jury to decide questions (concerning negligence and duty of care) based upon matters which were not in evidence - compensation awarded to the plaintiff for damages for injuries arising out of an accident which occurred at work. Held: Trial judge's directions to the jury inconsistent with the plaintiff's (or any) evidence - appeal allowed - verdict and judgment below set aside - verdict for the defendant in lieu thereof - plaintiff to pay the defendant's costs below - respondent to pay the appellants costs of the appeal and to have a Certificate under the Suitors' Fund Act.

Contract - "Entire contract" - Construction - Damages - Whether settlement with third party should be taken into account (ND)

TAXES AND DUTIES - Stamp duties - Instrument of transfer of land under the Real Property Act 1900 in registrable form given to plaintiff by father to protect her prior to devise of land to her by will - Stamped ad valorem as a transfer - No intention to make a gift - Caveat claiming equitable interest - Whether equitable interest arose - Plaintiff obtained registration as proprietor of the land by transmission under the will - Reassessment under the Duties Act 1997, s 293(2) limited to instruments that fail in their intended operation and become useless - Whether the instrument of transfer as a means of protection had not failed in its operation

TRUSTS AND TRUSTEES - resulting trust - whether money provided by father towards purchase of house by son gave rise to resulting trust in favour of father - whether voluntary transfer of Torrens system land gives rise to resulting trust in favour of transferor - FAMILY LAW AND CHILD WELFARE - domestic relationships - considerations relevant to application for leave to bring Property (Relationships) Act claim out of time

CONVEYANCING [184]- Torrens system- Caveats- Whether person with right to onsell has interest in land- Necessity in cases where caveator is a trustee to secure undertaking as to damages. EQUITY [343]- Undertaking as to damages- Plaintiff a trustee company- Undertaking to be secured or supplemented.

PROCEDURE [32] - Courts and Judges generally - Courts - Adjournment - Discretion of Court - Late application - Refusal of adjournment likely to lead to defendants being unrepresented in proceedings which are difficult, complicated and technical.