Cases and authorities

COSTS - assessment of costs of submitting defendants in proceedings under s.88K Conveyancing Act 1919 for grant of easement - submitting defendants had easements over site of proposed new easement but there was no conflict or adverse implication - submitting defendants properly joined as their possible compensation had to be considered under subs.88K(2)(b) - appropriate for plaintiff's application to be carefully considered for possible adverse implications on value of defendants' City building - submitting defendants claimed $24,783.58 - Court allowed 7 hours solicitor's attendances, no fees for counsel - costs assessed at $3,036.58.

Practice and procedure - Discharge of jury - Jurisdiction to order hearing without jury - Judge continuing to hear matter without jury - Evidence in proceedings before jury - Order after discharge of jury for evidence in proceedings before jury to be evidence in continuing trial - Test - interests of justice - Discretion - Grounds for exercise of discretion to continue trial without jury

Contract - whether concluded or enforceable contract exists - uncertainty of terms - whether specifically enforceable - discretionary defences - whether asserting incorrect view of contract amounted to repudiation - whethere there was a breach - validity of termination for repudiation or breach - whether terminating party was ready, willing and able to perform - estoppel - applicability of s 52 Trade Practices Act - rectification

VENDOR and PURCHASER - sale off the plan - entitlement to rescind where not registered in time available - Purchaser obtained interlocutory injunction to restrain rescission where prima facie case that Vendor in breach of contractual obligation to do whatever is reasonably necessary: 2000 Edition cl.29.

Evidence - Evidence Act 1995, s136 - meaning of "unfairly prejudicial" - where maker of representation not called - where ss 60 or 77 operate

Children's Court - care orders - whether necessary for magistrate to determine existence of all reasons asserted for an order - whether Act prevents an undetermined reason being later considered on mkaing of final order - whether insufficient reasons given.

Succession - Family Provision - Claim by adult brother - Proceedings not brought within prescribed period - Exercise of Court's discretion to extend time - Plaintiff and Deceased conducted a dairy farm in partnership upon land most of which was held by them in co-ownership - Plaintiff an eligible person - Whether there are factors which warrant the making of the application - Without the land of the Deceased and the land held in co-ownership the dairy farm business is not viable - By his will the Deceased left his entire estate to an order of Catholic nuns - No contact between Deceased and beneficiary during lifetime of the Deceased - Competing claim of beneficiary - Nature of order for provision - Whether Plaintiff should be given an absolute interest or only a life estate in some or all of the land upon which the dairy farm was conducted.

EVIDENCE - witness objects to giving evidence on ground of tendency to incriminate him - whether reasonable grounds for objection - whether criteria in s.128(5) satisfied - requirements of "interests of justice" considered - central role of evidence in determining parties' dispute

WORKERS' COMPENSATION - Modified common law action for damages - Assessment of non-economic loss - Threshold for award of economic loss - An irrelevant consideration.

Leave to commence proceedings out of time against the opponent.

CONTRACT - breach of contract - guarantee - when liability of guarantor arises in relation to default - LIMITATION OF ACTIONS - when cause of action accrued - whether proceedings statute barred - D

Extension of time for bringing of action.

PRACTICE & PROCEDURE - parties - application to join a defendant to protect legal professional privilege - leave to be heard as amicus curiae - whether it is open to a stranger to obtain certiorari to quash an order of the Supreme Court made in excess of jurisdiction - PRIVILEGE - client legal privilege - whether privilege can be maintained when confidential communications of confidential documents lose the character of confidentiality - implied consent to disclosure - LETTER OF REQUEST - jurisdiction to make order for examination - discretion to refuse order - oppression

Criminal law - Victim Impact Statement - Reading of Victim Impact Statement - Who is a representative of a deceased victim

CORPORATIONS - winding up - liquidator's examination - order for production of documents - whether court has jurisdiction to set aside - whether oppressive - whether order should be set aside - whether confidentiality order should be made as to some documents - whether liquidator should be ordered to pay expenses in advance of production

TRADE PRACTICES AND RELATED MATTERS - consumer protection - misleading and deceptive conduct by statements in advertising - relevance of target audience of advertising to whether statement is misleading and deceptive - factual decisions about whether representation relied on - factual decisions about whether representation continued to have causal effect - CONTRACTS - factual decision about consequences of breach of contract - INTEREST - rate of interest - interest under section 94 Supreme Court Act 1970 - on damages for misrepresentation inducing entry of contract for sale of land, where much of purchase price is secured by mortgage back - interest rates under Schedule J Supreme Court Act not appropriate - INTEREST - recoverability of interest - section 94 Supreme Court Act 1970 - from what date interest runs in action for loss of profits arising from breach of contract

Criminal Law and Procedure - Appropriate discount for the plea and contrition

Claim for possession - summary judgment - estoppel - invalidity of provisions - technical deficiencies.

Environment - Development Application for bulky goods retail centre - Relevant matters for consideration under s79C(1) Environmental Planning and Assessment Act 1979 - "proper regard" to draft exhibited planning instruments - where draft in force at time of proceedings - "certain and imminent" - weight to be accorded - purpose of draft instrument - whether question of law - public interest (ND)

CRIMINAL LAW AND PROCEDURE - WITNESS AGED 8 - ASSUMPTION THAT SHE COULD GIVE "EVIDENCE" WITHOUT BEING SWORN - ABSENCE OF RELEVANT ENQUIRIES AS TO HER UNDERSTANDING - STATUTORY AND COMMON LAW REQUIREMENTS UNFULFILLED

Criminal law - sentence - Crown appeal - murder of partner - whether prior conviction for assault on victim can be disregarded when considering absence of prior record as a mitigating circumstance - degree of culpability - whether sentence manifestly inadequate - whether open to trial judge to find special circumstances - whether ill treatment of body after death amounts to "gratuitous cruelty" for consideration of aggravating circumstances doubted - appeal dismissed.

Crown appeal against inadequacy of sentence - ignorance that manufacture of a drug is prohibited or illegal - submission plea should be rejected.

APPEAL - WORKER'S COMPENSATION - NEGLIGENCE - breach of duty - liability of solicitor in failing to advise the plaintiff of her common law rights and election provisions under Workers Compensation Act 1987 - DAMAGES - whether trial judge erred in assessment of economic and non-economic loss.

Administrative Law - NSW Coal Compensation Board - Crown acquisition of coal title - whether capital gains tax liability a "consequential loss" - whether "directly attributable" to acquisition - whether "just and equitable" to award compensation - jurisdiction of Coal Compensation Review Tribunal - appeals by way of reconsideration. (D)

Building contracts - contractual and restitutionary claims for variations - contractual procedures for claiming variations not followed - work involved was part and parcel of contract work - Jones v Dunkel - architect not called or his absence explained at trial - witness was available to either party - fresh evidence sought to be tendered on appeal was available at trial and not likely to affect result of appeal - evidence rejected - implied term for acceleration costs not available on facts (ND)

MOTOR VEHICLES: Suspension of driver's licence - Jurisdiction of Local Court - Quashing of suspension.

Negligence - Workplace injury caused by negligence of fellow employee - Workers Compensation - whether employer can claim indemnity against motor vehicle insurer under s151Z(1)(d) Workers Compensation Act 1987. (D)

APPEAL - Appealable error by trial judge - CONTRACT 'off the plan' purchase contract - purchase price paid two years in advance of completion - charge created by payment of purchase price - limited covenant not to caveat EVIDENCE - expert evidence conveyancing practice - lodgment of caveat GUARANTEE liability of guarantor - failure of creditor to protect security

CRIMINAL LAW - Defrauding Commonwealth - element of loss - actual loss - risk or imperilment of revenue - loss of opportunity to litigate - where alleged dishonest procurement of private binding ruling - whether necessary to demonstrate ruling incorrect - CRIMINAL LAW - Committal process - appropriate orders upon identification of error of law in committal - availability of Basha inquiry

Contracts - Contract of agency for personal services - Artist and artist's company ["the Company"] enter into contract appointing Managing Agent ["the agent"] as sole and exclusive manager of artist in the entertainment industry - Date from which contract bound the parties - Principles of construction - Principles governing implication of terms - Termination clause providing that no breach of the contract is a material breach giving the other party the right to terminate unless written notice is given followed by failure to cure breach within 30 days of notice - Proper construction of termination clause - Purported termination by artist and company of contract without giving the 30 day notice to agent - Subsequent notice given eight months later without prejudice to validity of earlier termination and purporting to give the 30 day notice - Repudiation of contract - Necessity to draw a distinction between on the one hand, a circumstance involving a repudiation by one of the parties in terms of the evincing of an intention no longer to be bound by the contract and on the other hand, a circumstance where the claimed repudiation falls short of an express repudiation - Tort - Interference with contractual relations - Inducement of breach of contract - Principles - Person committing the tort must be a third party standing outside the contractual relation being interfered with - Company having only one appointed director - Artist found to be a de facto director - Whether artist as de fact director liable for the tort of inducing breach of contract where artist and sole appointed director determine that company should wrongly terminate the contract - Conspiracy - Conspiracy to injure by unlawful means - Principles - Intent to injure is a reference to the real purpose which the conspirators are trying to achieve - Equity - Remedies - Action for taking of an account - Plaintiff suing on cause of action for breach of contract - Where a breach of contract is established, it must be shown that there is also a breach of an equitable obligation (such as breach of a fiduciary duty, or breach of an obligation concerning the use of confidential information) before an account of profits will flow - Damages the only remedy which the common law provides for breach of contract - Damages - Damages for loss of chance

CORPORATIONS - winding up - application to set aside statutory demand - genuine dispute shown - significant doubt whether dispute will eventually be resolved in plaintiff's favour - condition requiring payment into court by plaintiff if defendant commences debt recovery proceedings

Appeal from Small Claims Division - application for leave to be represented by a person who was not counsel or a solicitor - McKenzie friend - application for adjournment - the jurisdiction of the Small Claims Division - denial of natural justice.

Practice and procedure - Pleading - Strikeout - Summary judgment - Agreement for loan - Mortgage - Claims against lender, mortgage broker and mortgagee - Provision of financial services - Financial service - Financial product - Making of a loan not a financial service - Mortgage not a financial product - Loan for refinancing mortgage and for personal and investment purposes not a supply of goods or services within Trade Practices Act - Negligence - Pure economic loss - No advice given by, or sought from, lender or broker - No duty of care - Unjust contract - Unconscionability

REAL PROPERTY - claim under Torrens Assurance Fund - plaintiff purchased property in 1988 - resumption in effect from 1972 - when plaintiff purchased property no notation indicating resumption - plaintiff became aware of resumption after commencing a development of property - claim for wasted costs and additional costs

Damages - general principles - consideration of remoteness of damage in respect of conversion and various items of mitigation.

CRIMINAL LAW - sentence - murder - use offensive weapon to prevent lawful apprehension - assault with intent to take motor vehicle - use firearm without authority - possess firearm without authority.

CONTRACT - construction - contract for the construction and sale of an apartment and car space - construction of "Special Faults" clause - D

EVIDENCE - documents - expert's report - supplementary report - whether liable to production - prepared for purpose of the litigation - client legal privilege - waiver - EVIDENCE - expert witness - Code of Conduct - duty to court - not to be advocate for a party - advice as to cross-examination and conduct of the case.

Evidence - Hearsay - Exceptions to hearsay rule - Representation concerning health, feelings, sensation and state of mind - Report by deceased doctor in which history of plaintiff recorded - Cross examination of one witness on previous representation by other than such witness - Limitation on ambit of s 44(2) of Evidence Act - Relationship between s 49 and s 72 of Evidence Act

Family Law - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - Residence purchased in name of Defendant alone - Caution should be exercised in applying to claims by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Commonwealth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs - Constructive trust - Where relief is granted under section 20 of Property (Relationships) Act the basis for the imposition of a constructive trust is thereby removed, since the beneficial interest then claimed by the Defendant can no longer be treated as unconscionable or contrary to equitable principle.

fiduciary duty - negligence - misrepresentations - equitable compensation and/or common law entitlement to recovery of expenditure in unsuccessful litigation

MORTGAGES - priority - contract for sale of land provided for vendor finance secured by second mortgage - no requirement by purchaser for expected first mortgage on settlment - vendor's mortgage back registered as first mortgage - purchaser subsequently required finance from another lender to be secured on the property - whether vendor first mortgagee required to give priority to this mortgage over mortgage back

Appeal from Local Court - adjournment sought by facsimile transmission - false medical certificate - appeal heard ex parte - no error of law.

CRIMINAL LAW - Sentence - defrauding the Commonwealth - reduction of sentence upon some offences sought where quashing of convictions on other offences - where criminality of conduct on quashed convictions taken into account on sentences for remaining offences - consistency with similar fraudulent scheme.