Cases and authorities

CORPORATIONS - winding up - litigation funder purchases debts and notes of company in liquidation, finances litigation by that company - litigation settles and funder seeks preferential distribution of the proceeds under section 564 Corporations Law - whether any significance in vendors of debts and notes to financier receiving a higher proportion of the face value of those debts and notes than the dividend declared in the winding up - how financier's costs of becoming a creditor ought be treated - consideration of factors relevant to manner of distribution of settlement sum

criminal law - sentencing - ongoing supply of amphetamine

Provocation - SMS text messages - admissibility - relevance

appeal against conviction & sentence by accused - admissibility of identification evidence in re-examination - warning on mental illness - use of word 'accomplice' in warning - fresh evidence - crown appeal against sentence - 3 serious offences - importation of cocaine - conspiracy to import cocaine - money laundering - offender profit sharing & senior figure - whether manifestly inadequate

CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence in relation to workplace injury - principles governing contributory negligence by employees - nature of an appeal against a finding of contributory negligence - DAMAGES - nature of an appeal against award for non-economic loss - assessment of loss of earning capacity - whether actuarial evidence is required to prove a claim for loss of superannuation benefits. - D

CORPORATIONS - voluntary administration - leave to proceed against defendant company in administration - whether plaintiff's application to amend summons is caught by s.440D - whether leave to proceed should be granted in respect of amendment application and summary judgment application where plaintiff seeks restitution on basis of conduct declared by statute to be "unlawful"

TRADE AND COMMERCE - misleading or deceptive conduct in trade - whether bank made untrue representation as to state of business being purchased by customer applying for acquisition finance - whether bank's failure to correct customer's statement as to state of business known to the bank to be incorrect actionable - whether bank's failure to inform customer of customer's accountant's failure to give favourable report on financial position of business actionable - EQUITY - fiduciary duty - whether bank owed fiduciary duty to customer in connection with customer's purchase of business financed by bank - TORTS - negligence - duty of care owed by bank to customer - PROFESSIONS AND TRADES - accountants - nature and incidents of retainer of accountant advising on purchase of business - whether breach of contract or negligence - ELECTION - circumstances in which person with inconsistent rights, having resorted to one, may not resort to the other - whether creditor properly regarded as having concurrent rights to sue for full debt and to sue for such smaller amount as creditor chooses

Extension of limitation periods - futility, delay and explanation for delay and prejudice.

Appeal decision of CTTT - building contract - preliminary issue

Criminal Practice & Procedure - manslaughter - young offender - whether custodial or non-custodial sentence - unusual circumstances of death - previous good character

Practice & Procedure - Summary judgment application pursuant to Pt 15 r 2 of Supreme Court Rules - motion dismissed. - Contract Law - Construction contract - progress claims issued pursuant to Building & Construction Industry Security of Payments Act. Whether payment claims could be made between practical completion and the expiration of the defects liability period. Held no triable issue. Whether progress claims were supported by the evidence and information required by the contract and the Act. Held to be a triable issue - whether progress claims made in conravention of s13(5) of the Act. Held no triable issue.

Application pursuant to s.48 of the Commercial Arbitration Act 1984 (NSW) by plaintiff (respondent in arbitration) to extend certain times in arbitration clause in Agreement with defendant (claimant in arbitration) - Whether application involves the determinaion of a question of law - "undue hardship"- Whether in all the circumstances time should be extended.

CRIMINAL LAW - Relationship between s4(1) Commonwealth Places (Application of Laws) Act 1970 and ss 3A and 527C Crimes Act 1900 - whether necessary to prove territorial nexus with NSW when offence occurs in a Commonwealth Place - whether s527C of Crimes Act requires stealing or unlawful obtaining to occur in NSW - power to rewrite question where Stated Case deficient - costs.

STAY OF EXECUTION - Stay of execution of a judgment - successful party terminally ill - other relevant factors - relevance of supposed practice.

PROFESSIONS & TRADES [96]- Lawyers- Duty to former client- Prince Jefri principle- Whether sole basis for Court's intervention.

PRACTICE AND PROCEDURE - undertaking to the Court not to seek to obtain information directly or indirectly from certain persons - proper construction of undertaking - whether plaintiff is entitled to discovery and inspection of accountant's reports - whether undertaking, properly construed, would be breached by seeking discovery - whether Court should prevent discovery and inspection in exercise of its discretion

Industrial accident - worker tripped over hose - liability of employer - blindness in left eye - psychogenic blindness in right eye - causation - uncertain prognosis - calculation of damages

Extension of time to commence proceedings - ss 60C & E - Limitation Act 1969 (NSW)

[Commercial Contracts]- identification of terms -contract in which defendant, through a corporate vehicle, exchanged contracts for purchase of certain assets (including the wine business) from the liquidator to be owned by the plaintiff, via a shareholding in the corporate vehicle, if the plaintiff able to fund the settlement- obligation on the defendant to provide contract with liquidator to the plaintiff for his approval/whether the plaintiff required to pay purchase price that the defendant paid the liquidator or some other amount [Breach] -falsification of documents provided to the plaintiff for his approval- requiring the plaintiff to pay higher price for purchase than the defendant paid the liquidator for the wine business - [Damages] - whether the plaintiff suffered damage by reason of breaches - whether the plaintiff had the capacity to settle the contract in any event - [Misleading and deceptive conduct] - representation that document provided for approval by the plaintiff contained the true terms of the contract between the liquidator and the defendant - reliance -payment of money based on amounts in false documents - [Agency/Fiduciary] - whether fiduciary obligations imposed by use of the words in the contract that the defendant would purchase the wine business "on behalf of" the plaintiff - [Tort] - deceit - elements- whether exemplary damages available -whether an award of exemplary damages should be made.

Contracts - Complex of obligations including guarantees and indemnities entered into by corporations, trusts and individuals parties to deed entered into upon acquisition/reorganisation of real estate group - Construction - Principles - Identification of obligors and obligees - Equity - Trust of a contractual promise - Corporations - Directors duties - Duties not to profit without first obtaining fully informed approval/consent of co-directors - Obligation of full disclosure by directors of wholly owned subsidiary to parent company - Oppression-Sections 232 and 233 Corporations Act inapplicable where venture protected by unit trust superimposed on company structure - Guarantees - Discharge - Release of one joint or joint and several promisor discharges all others - Promises not to sue - Distinction between release and promise not to sue - Rule in Jones v Dunkel - Principles - Onus of proof - Shifting evidentiary onus - Employment law - Summary dismissal for gross and wilful misconduct

review of Magistrate's decision - committal proceedings - s48E Justices Act 1902 (NSW) - refusal to allow complainant to be called for cross-examination - jurisdictional error - mandamus - declaration

Appeal: costs review panel's decision

NEGLIGENCE - liability in negligence - admissibility of expert's report - failure to make adjustments to lift mechanism prior to accident - was injury reasonably foreseeable - failure to address factors pertaining to duty of care in Wyong Shire Council v Shirt or by reference to industry standard.

INTEREST on COSTS - Claim for interest on costs - Claim for interest not an independent cause of action - JUDGMENTS - ORDERS - Whether final judgment may be set aside - Application for interest must be made and determined before entry of judgment for costs.

COSTS - application for indemnity costs - special order

CONTRACT - CONSTRUCTION - Contract for performance of work required - respondent to procure insurance cover for appellant - whether insurance cover limited to workers' compensation type cover. - HELD: Respondent was required to provide insurance cover for all types of risks.

NEGLIGENCE - duty of care - custodial analogy - exceptional duty of care - breach of duty - causation - whether conduct materially contributed to respondent's injury - whether increasing risk of injury unreasonable - whether serious danger foreseeable or avoidable - relevance of religious and moral opinions (D)

CORPORATIONS - winding up - application by liquidators for approval of compromise of debts and to enter into contracts not to be performed within three months - principles to be applied - application by liquidators for directions

CORPORATIONS LAW -- plaintiff seeks order pursuant to s 500(2) of the Corporations Act 2001 (Cth) -- defendant company being wound up -- no proof of debt provided by the plaintiff -- does the plaintiff's claim rank in priority to normal unsecured creditors -- held that the plaintiff's claim would not have priority -- summons dismissed -- INDUSTRIAL LAW -- plaintiff seeks leave to continue proceedings in the Industrial Relations Commission -- whether an award under s 106(5) of the Industrial Relations Act1996 (NSW) gives rise to a provable debt -- is the defendant a necessary party before the Commission -- held not necessary for the defendant to be a party before the Commission -- leave refused to proceed against the defendant

Separate determintion of liability - house fire

Dismiss proceedings and set aside notice to produce - Costs assessment

APPEAL - TORT - NEGLIGENCE - PERSONAL INJURY - COMPENSATION - Appeal against two respondents from a District Court decision (in favour of three defendants) - whether transport company employer is liable for injury to its employee arising at their customers' freight pick-up sites and loadings - whether employer, or the employer's customers, are liable for injuries arising from the truck driver employee's assumption of risk in loading truck - why the third defendant was not joined as a third respondent to the appeal. Held: Employer/first respondent not liable by virtue of an employer/employee relationship alone - by majority: (a) although the second respondent did act carelessly, it did not breach any duty of care owed to the appellant - (b) appellant acquiesced to second respondent's carelessness - appeal against both respondents dismissed with costs.

Appeal decision of Local Court Magistrate - whether leave should be given to appeal interlocutory matter - s 54 Limitation Act - whether email constitutes written and signed acknowledgement for the purposes of s 54 Limitation Act

Wills - informal will - trusts - a trustee of an express trust who has accepted appointment as trustee may not thereafter impeach the validity of the trust instrument

Anshun estoppel - alternative case not pleaded in earlier action - whether fundamental to the decision in that action - whether it was unreasonable not to plead the alternative - whether the Moçambique rule made it reasonable because the earlier action was in Vanuatu and land in NSW was involved - whether "trust" exception to the Moçambique rule applied - effect of the abolition of the Moçambique rule in NSW itself on any question of comity - Anshun held to apply.

Consumer protection - fair trading - power to make declarations and grant injunctions based on breaches of the Residential Parks Act 1998 - whether breaches of that statute - declarations - other relief refused

CORPORATIONS LAW [89] Directors- Donee of power of attorney of a director may not exercise office of director. EQUITY [82]- Defences- Acquiescence- Ratification. SUCCESSION [273]- Administration- Conflict between deceased's personal estate and his family trust- Missing entries in records- How conflict resolved- Whether overpaid beneficiary can be sued.

INDUSTRIAL LAW [678]- Unfair contract- Managing director- Contract required man to invest his own money in enterprise in purchase of shares- At end of enterprise value of shares fallen greatly- Other party made profits from enterprise through collateral businesses- Other party given right to buy back director's shares at fair value- Appropriate to vary contract by ordering buyback to return director at least the sum invested plus reasonable interest. WORDS & PHRASES- "Partnership".

Leave to file cross claim between first and sxith defendants

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - progress payment - adjudication application - adjudication determination made out of time - whether adjudication determination made out of time invalid

PRACTICE AND PROCEDURE - Costs of appeal - Indemnity costs - Rejection of pre-trial offer - Supreme Court Rules Pt 22 - whether offer was a true compromise - costs of appeal where action futile. ND

DEFAMATION - Defamation Act 1974 - Defences of truth and contextual truth - RES JUDICATA - Judgments in rem - Whether finding of Licensing Court conclusive - Difference between an order and a finding - Meaning of "status" in context of judgments in rem - Temporal limitation on finding of fitness - PRACTICE AND PROCEDURE - Abuse of process where issues previously litigated between different parties. D

CORPORATIONS - Employee entitlement to benefits arising from articles of association - Where contract of employment entered into before became aware of any entitlement to benefits - EQUITY - Fiduciary relationship - Extent of fiduciary duty not defined - TORT - Conspiracy - No intention to harm the appellant - PRACTICE AND PROCEDURE - Function of Court of Appeal - Appealable error must be shown. ND

PROCEDURE [583] - Costs - Departing from general rule - Conduct of parties - Misconduct etc - Generally - Application to deprive successful defendants of costs - Misconduct by defendants in subject transactions and in conduct of proceedings.

Summary judgment - Review of Registrar's decision

Appeal decision of Costs Assessor - whether s 444E of Corporations Act applies - whether parties can be amended

Personal injuries - finding thresholds under Motor Accidents Act not reached - no finding as to any lesser extent of injury entitling recovery of past economic loss and out-of-pocket expenditure - if a finding, no reasons for it - appealable error - appeal court unable to assess the damages - new trial as to damages generally.