Cases and authorities

Negligence - Respondent slipped and fell off external stairway owned by appellants - stairway presented obvious risks to users - single pipe handrail at height of 865mm - whether appellants negligent in failing to install mid-rail - Breach of duty - reasonable care - "lawful common practice" - where handrail complied with Building Ordinance at time of construction - reasonable foreseeability of risk of injury - where stairway in regular use - where danger obvious to appellants - availability of preventative measures - Procedural fairness - whether unjust to allow reliance on matters not litigated at trial - current building standards - Appeal dismissed (D)

TRADE PRACTICES - Consumer Protection - Franchised real estate agents trading as "United Realty" - New franchise chain trading as "United Real Estate" - Trade Practices Act 1974 (Cth), s 52(1) - What is the relevant section of the public by reference to whom the question whether the conduct is misleading or deceptive is to be tested? - EVIDENCE - Burden of Proof, Presumptions and Weight and Sufficiency of Evidence - Intention put in issue in course of trial - Corroborrative evidence not called - Intention not an element of a claim under s 52(1) - Whether adverse inference should be drawn

ASSOCIATIONS AND CLUBS - procedure in actions by and against - availability of interlocutory injunction against named defendants as representing all members and officers of the club

PRACTICE & PROCEDURE - referees - adoption of referee's report - whether referee correctly applied clause of subcontract - whether defendant should have opportunity of relying on clause not relied upon in reference, where proper construction of clause is determined by judge subsequent to reference - principles to be applied in adoption of referee's reports

BANKING AND FINANCIAL INSTITUTIONS - unconditional letters of credit - injunction preventing payment when serious question to be tried about whether demand is unconscionable - TRADE AND COMMERCE - TRADE PRACTICES AND RELATED MATTERS - enforcement and remedies - interrelationship of remedy for unconscionable conduct under Trade Practices Act and autonomous contract involved in unconditional letters of credit

PRODUCTION OF DOCUMENTS - ORDER BY TRIAL JUDGE - APPEAL NOT PRESSED

TORTS - Negligence - novel duty of care - interaction with statutory scheme - interaction with law of nuisance - whether statutory intention to exclude common law duty of care - whether recognition of duty would undermine legal coherence - TORTS - Negligence - where extension to adjoining property would block views - where statute required notification to adjoining proprietors if council formed opinion enjoyment of land may be detrimentally affected - whether duty of care in formation of opinion as to detrimental effect

Practice and procedure - Part 72 Supreme Court Rules Reference - Power in referee to permit amendments or additions to pleadings - Referee disallowing application by plaintiff for leave to amend - Application to the court by plaintiff to give directions granting the leave to amend - Ongoing reference - Principles applicable on such applications to the Court - Considerations to be taken into account - interests of justice likely require it to be quite clearly demonstrated that interlocutory decision by referee clearly miscarried before referee's decision will be interfered with - Case management by referee of parameters of application for leave to amend - Overriding Purpose Rule to facilitate the just, quick and cheap resolution of the real issues in civil proceedings - Long term view of reference taken into account - Orders made permitting amendments sought

CORPORATIONS - voluntary administration - whether administrator required to attend personally to chair creditors' meeting - whether order should be made under s 447A to permit administrators to nominate their partner to chair meeting

Interlocutory application - whether to grant adjournment - whether plaintiff can give evidence by way of affidavit - query whether open to the Court for the plaintiff to be interrogated

REAL PROPERTY - easements - gate on line separating land of dominant owner from site of easement - whether an actionable interference with rights of dominant owner to use easement - quia timet injunction sought to restrain interference with easement - effect of dominant owners having kept themselves poorly informed about plans of servient owners for the gate, and having not ascertained whether potential problems which they foresaw could be overcome

Informations and summonses served alleging the commission by plaintiff of offences under the Taxation Administration Act 1953 (Cth) and the Crimes Act 1914 (Cth).

EVIDENCE - company financial statements and drafts thereof - whether prepared for purpose of, in connection with or in contemplation of proceedings - relevance of statutory provisions requiring financial statements to be prepared - whether defendant will suffer unfair preuudice if documents admitted when directors and accountant will be available for cross-examination - overriding effect of s.1305, Corporations Act

CORPORATIONS - voluntary administration - certain debts of company guaranteed by directors - application by creditor for leave to enforce guarantees - legislative purpose of embargo on enforcement of directors' guarantees during voluntary administration considered - need for administrator to have opportunity to make submissions

Contract - sale of land - whether parties entered into a contract - whether real estate agent had authority to participate in exchange of parts of contract - objective test

PRODCEDURE - Miscellaneous Procedural Matters - Pleadings - Particulars - Joint tenancy of property of husband and wife - Husband alleged to have killed his wife and then killed himself - Murder alleged to have augmented estate of husband to the extent of a half interest in the property - Pleading alleged augmentation due to unconscionable conduct and unjust enrichment - Psychiatrist retained by defence sought access to psychiatric notes with respect to the victim - Particulars refused by Registrar - Review under Pt61 r3 - Whether particulars of the identity of psychiatrists and psychologists the victim consulted should be ordered - notice of motion amended to seek discovery of documents indicating psychiatrists and pschologists consulted by victim - Whether a fishing expedition.

CORPORATIONS - WINDING UP - appeal against liquidator's decision to appoint voluntary administrator - relevant considerations - VOLUNTARY ADMINISTRATION - whether administrator required to attend personally to chair creditors' decision procured by related party vote should be set aside - whether administrator's decisions as to admission of proofs of debt for voting purposes were correct - whether deed of company arrangement should be terminated for material omissions in administrator's report or on other grounds - whether administrator should be removed - whether Court should review administrator's remuneration - whether Court-ordered winding up terminated by appointment of administrator

Sentencing - drug offence - attempt to obtain possession of prohibited imports (ecstasy) - appellant identified by sentencing judge as "The Australian principal of an international organisation" - 50% discount allowed for assistance to authorities - 15% discount allowed for plea of guilty - whether head sentence of twelve years manifestly excessive - whether non-parole period of eight years (ie 2/3 of head sentence) manifestly excessive.

Appeal - Costs - Suitor's fund - Appeal resolved by consent order

PROCEDURE - miscellaneous procedural matters - Mareva order originally made by consent - application to vary to enable restricted assets to be used for purposes of proposed mediation

Garnishment - garnishment notice addressed to bank holding trust funds - judgment debtor as beneficiary in trust - whether debt due and accruing from bank to judgment creditor was not - discretionary trust - several beneficiaries - whether debt due and accruing from trustees to judgment creditor - it was not.

SCR Pt 36 r 13C - expert's report - compliance - admissibility - "otherwise" order - discretion

Execution - writ for levy on property to enforce judgments for costs - certificates of costs in favour of judgment creditor for amount greater than amount in certificates in favour of judgment debtor - whether execution should be stayed - nature of judgment debtors interest in property subject of levy - doubt as to whether any saleable value - alternative source of funds to satisfy judgment creditor's claim paid into court in related proceedings - legal practitioners - party in person with address for service at office of solicitor - whether solicitor entitled to appear at hearing - legal practitioner holding practising certificate as barrister and solicitor - whether entitled to appear as barrister.

Law Reform (Miscellaneous Provisions) Act 1946, s5 - "Tort" - Trade Practices Act s52 - Fair Trading Act s42 - Costs - Offer of Compromise - multiple proceedings

Leave to file Cross-Claim by plaintiff - proposed Cross-Claim inconsistent with existing judgment in the proceedings - the proceedings had been brought against a deregistered company - nullity - need to set aside orders - abuse of process.

Young offender - pleas of guilty to a number of offences of causing a child under the age of 18 to participate in acts of prostitution - acts committed whilst under coercion from dominant co-offender - significant assistance to the authorities.

NEGLIGENCE - Duty of care owed by entrepreneur to independent contractor - Whether duty of care was breached by entrepreneur - Whether causation was established - Whether independent contractor was contributory negligent. D

NEGLIGENCE - Diesel slick on road - Whether inference of negligence of driver/owner of unidentified motor vehicle can be drawn. ND

Lease - option to purchase - valuation of property - rent capitalisation - existing use rights - Solicitor - whether negligent - Appeal - question of fact - Negligence - causation - 'but for' test

Apportionment of Damages - Duty of care to supervise building works - When duty of care discharged.

Appeal from review proceedings - Whether final or interlocutory order made - Construction of SEPP 62 - Meaning of the term "area" in cl 4 of Schedule 1 to SEPP 62 - Jurisdictional nature of classifying a development as prohibited under the Environmental Planning and Assessment Act 1979 - Council's power to consent to a prohibited development - Procedure by which a prohibited development may be the subject of a development application - Effect of SEPP 62: sustainable Aquaculture (Amendment No 1) - Request for Land and Environment Court to exercise its discretion. D

Practice and Procedure - Pleadings - Particulars - Application to strike out summons - Pleading of breaches of fiduciary and other duties - Onus of proof of informed consent of principal

EQUITY [326]- Romalpa clause- Title to goods remains in the plaintiffs- Whether common law remedies adequate- Factors involved- Damages not an adequate remedy if they cannot be recovered- Equity may intervene. TORTS [30]- Detinue- When specific restitution awarded.

CORPORATIONS - application for reinstatement of registration - application by holding company by which all shares held - whether person aggrieved by deregistration - whether just and equitable that registration be reinstated - whether just and equitable that revived company be wound up - whether advertising should be dispensed with

defamation - imputations - difference in substance - incapable of being conveyed

defamation - imputations - capacity to convey imputations - capacity to defame - differences in substance

defamation - gender-based discriminatory attitudes - capacity to sue - actionable defamation - capacity - difference in substance

CORPORATIONS - supervision, regulation and correction - offences - generally - order prohibiting person from leaving Australia without the consent of the Court

Master & Servant - confidentiality - whether restrictive convenants entered into - employees' implied duty of good faith - whether employees entitled to establish competing business - whether employer's process a trade secret.

PROCEDURE [551] - Costs - Jurisdiction - Persons not parties to proceedings - Solicitors for parties - Barristers - Improper conduct - Whether improper conduct could be inferred on material presented.

CORPORATIONS - companies - winding up - adjournment of winding up proceedings after appointment of voluntary administrator - relevant considerations under s 440A - whether leave required under s 440D

Injunction - Interlocutory injunction - Education - School - School discipline - Drugs - Illegal substances - Government policy that schools be absolutely free of illegal drugs - Implementation of policy in public schools - Suspension of student in public schools - Headmaster's power to suspend a student in public schools - Procedures for suspension and expulsion of students in public schools - Procedural fairness - Natural justice - Right to be heard - Absence of independent person at interview - Reference to police in introduction to interview - Information that students should be given - Safety and welfare of student - Safety and welfare of school generally - Damages - Irreparable harm or injury - Balance of convenience - Considerations include those of defendant which comprehend adverse effects on school discipline, both particular and general

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - wards of court - orders to facilitate administration of chemotherapy to child with cancer - significance of expressed opposition of child to treatment

EASEMENTS - creation - by Court order under Conveyancing Act 1919 - s88K - owner of adjoining land sought easement for light and air over passageway 2.44m wide in middle of City block - no known owner and no registered document or other act of ownership since 1840 - City Council and other frontagers did not oppose - easement required for satisfaction of condition of Development Consent for plaintiff's building - no competing interest or activity - order made without provision for compensation.

Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. Demand varied. No matter of principle.

EVIDENCE [83]- Admissibility- Communications between parties settling dispute- Dispute settled- Subsequent litigation between different parties- What said during such negotiations relevant- Whether admissible- Equitable evidence, whether prevented by Evidence Act 1995- Whether inferences available from refusal to disclose- "Consent" to admission of evidence- Implied consent- Does implied consent arise if a person only objects on a ground that is overruled by the Judge?- Evidence Act ss 131(2), 134.

Corporations Law. Application to set aside statutory demand under section 459G of the Corporations Act. Proceedings dismissed. No matter of principle.

SUCCESSION- WILLS, PROBATE AND ADMINISTRATION- rules of public policy - forfeiture by killing -application to have funds released to person accused of murdering testator - EXECUTORS AND ADMINISTRATORS - what constitutes administration being completed - personal liability of representative for release of funds to wrong beneficiary - EXECUTORS AND ADMINISTRATORS - rights, powers and duties - duty to ascertain the beneficiaries - duty where notice of possible forfeiture by a beneficiary - PROCEDURE - administration of estates - application to release funds to a possible beneficiary before estate administration complete - basis for a right of a beneficiary from an estate not fully administered - appropriation - interim distributions -whether beneficiary has a right to be paid where there is an undecided forfeiture question - PROCEDURE - administration of estates - summary relief requiring distribution by executor - when appropriate - EVIDENCE - CIVIL PROCEEDINGS - effect of a verdict in criminal proceedings on a factual question in civil proceedings - admissibility and significance of a conviction - EVIDENCE - onus of proof - presumption of innocence - role in proof of criminal or seriously wrongful acts within civil proceedings - whether applicable in litigation where whether such an act has occurred is not being decided.

CONTRACT - Interpretation - Whether upon the proper construction of agreement Plaintiff entitled to payment of fee upon sale of development site - Whether there was an alternative agreement under which the Plaintiff was entitled to payment of such fee - HELD Plaintiff entitled to declaration and orders sought in Second Further Amended Summons