Cases and authorities

Pseudonym application - form of evidence - affidavit on information and belief - T4816

On application for adjournment - application for pseudonym order - T4817

Crimnal Law - Sentence - Malicious Wounding Pattern of Entrenched Disadvantage

Defamation - alleged misuse of power - preferential treatment - where individual not under investigation but entire body he represented - no evidence against individual - individual has not been defamed

Regarding Plaintiff's subpoena to the Police Service of 9 March 2000 in connection with unedited documents - T4751

Plaintiff's Notice to Produce documents - T4780

Appeal & New Trial [107]- Stay pending appeal - Public interest judgment - Principles - Corporations [188]- Receivers - Application under Commercial Agents & Private Inquiry Agents Act, s 39B - Principles - Whether undertaking as to damages required - Procedure [106] - Preservation - Receivership order sought under Commercial Agents etc Act - Whether undertaking as to damages should be taken.

Motor vehicle accident - Resulting in death - Negligence contrbutory of deceased - assessment of damages

Criminal law - Appeal against convictions for murder and of having sexual intercourse with a child under 10 - application for extension of time to appeal - whether admission of "relationship" evidence constituted a miscarriage of justice - sufficiency of evidence of penetration - directions on the necessary mental elements

Sentencing. - Sentences must reflect objective gravity of offences.

CONTRACT - representation as to takings - misleading and deceptive conduct - reliance

Property law - easement granting right of way - not used by dominant tenement could seek extinguishment - establishing easement is obsolete under S89(1)(a) Conveyancing Act (NSW) 1919

CORPORATIONS LAW - winding up in insolvency - opposition to winding up - leave to oppose on certain grounds "material to proving the company is solvent" Corporations Law s459S - CORPORATIONS LAW - period in which application to wind up in insolvency must be determined - extension of period - validity of "condition" Corporations Law s459R(4)

Negligence - Council in maintaing public playing field - personal injury - whether evidence as to injury true or fabricated - whether quantum of damages awarded excessive

Contempt of Court - jurors - interference with juror by solicitor for the accused - approaching juror and handing document to juror

PROCEDURE — Mortgagee’s costs on an indemnity basis — Construction of relevant provisions — Widest or narrower basis of determining indemnity costs — Need for mortgagee reasonably to particularise basis for charging legal costs — Approach using referee to appraise mortgagee’s costs not to be so precise as to add disproportionately to costs — Costs of present proceedings to await result of referee’s appraisal.

Aboriginals [3]- Land rights- Members of community seeking to enforce Native Title Consent Agreement- Equitable relief sought. Equity [343]- Injunctions- Undertaking as to damages- Plaintiffs suing for others beside themselves- Those others not prepared to support by undertaking as to damages- Relevant factor in considering whether order made. Words & Phrases- "Land Disturbance".

TORTS - solicitors' negligence and breach of retainer - damages - whether extend to loss of profits - failure of ascertain status of closed road through property - impediment to purpose for which land was purchased - purpose known to solicitors - loss of chance - loss of opportunity to obtain the closed road land at no additional cost and thus the profits - purchase of land would not have proceeded at additional cost - chance percentage assessed at fifty percent

Environmental Law - Environmental Planning and Assessment Act 1979 - Process necessary to obtain a rezoning of land - Commission of Inquiry - Failure to properly prepare for or present submissions to Commission of Inquiry - Contract - Joint venture contract related to lands proposed to be initially rezoned to permit redevelopment as residential subdivision - Oral representations inducing entry into Heads of Agreement subsequently followed by formal agreement - Construction of Contract - Commercial and business transaction - Whether defendants warranted that rezoning would be achieved - Whether defendants strictly liable for failure to obtain rezoning - Defendants' covenant to provide their expertise at cost to promptly secure rezoning of land - Obligation construed as obligation to use best endeavours [this is the promise] to secure the rezoning of the land promptly [this is the intended result of the promise] by the use of their expertise [this is the tool by the medium of which the best endeavours are to be applied] - Alternatively term to be implied into subject agreements to the same effect - Parole Evidence Rule - General rule that contract be interpreted objectively - Relevant intention is intention manifested in the words of contract or conduct of the parties as reasonably understood by the other party - Evidence of negotiations prior to execution of Heads of Agreement and formal agreement not admissible to establish subjective intention and expectations of parties, but admissible to establish objective background facts known to both parties and the subject matter of the contract - Rectification - Implied Terms - Oral evidence of parties' actual intention not admissible to establish implied term - Oral evidence admissible to negative implication of a term - Causation - Breach of contract need only be a cause of damage - Need not be sole or predominant cause - Causal relationship between individual breaches and ultimate loss - Breaches of Heads of Agreement and formal agreement both causes of the loss - Presumption against wrongdoers - Applicable where action of parties have made an accurate determination problematic - Loss of Chance - Principles applicable - Implied obligation to use best endeavours to promptly secure rezoning of land - Breach enables innocent party to bring action for loss of commercial opportunity - Opportunity need not be equal to or greater than a 50 per cent likelihood - Damages for breach of contract - Damages for loss of a chance - Plaintiff must show commercial opportunity was of some value, though not negligible value - Damages awarded by reference to the possibilities and probabilities of what would have happened - Difficulties and uncertainty of assessment of damages for loss of chance does not relieve from the court the responsibility of assessment as best it can - Equity - Fiduciary relationship - Joint venture - Contractual relationship may give rise to fiduciary obligations - Fiduciary obligations may exist between parties who embark upon conduct of the venture before the precise terms of the joint venture arrangements have been settled - Joint venturers may occupy relationship demanding trust, confidence and the exercise of good faith - Joint venturers undertaking to act for and on behalf of the joint interest in the venture and not as to prejudice joint interest - One joint venturer's interest vulnerable to another - Incidents of joint venture relationship gleaned from negotiations prior to execution of joint venture documents - Trade Practices - Misleading and deceptive conduct - Necessity for applicants seeking relief to establish what applicant would have done had applicant not relied on the representation - Necessity for comparison between hypothetical and actual state of affairs - Evidence - Failure of one party to call evidence - Application of principle in Jones v Dunkell - Administrative Law - Statutory decisionmaker may not fetter statutory discretion - Estoppel does not lie to fetter future exercise of statutory discretion

CRIMINAL LAW - Application to Discharge Jury - prejudice - evidence tending to disclose past criminality

sentence - murder - attempted murder - totality

COSTS - appeal from Master - decision set aside as irrelevant considerations were applied and undue weight given to matters which Master treated as relevant to award of general costs of proceedings - Plaintiff discontinued after Caveat was withdrawn and on appeal was awarded general costs of the proceedings.

Residential Parks - Agreement for Site Lease - Rent Increase - Prevailing Market Value - Compliance With Requirement to Set Out Method for Calculating Increase

PRACTICE AND PROCEDURE — Overriding purpose of "just, quick and cheap" resolution of civil disputes — Effect of Plaintiffs’ delay inter alia in lodging application for leave to appeal on trial judge’s interlocutory orders — Stay refused without prejudice to application to Court of Appeal who will know prospects of leave and timetable for appeal — No justification for even short stay when application made at last minute.

CORPORATIONS — Deed of Company Arrangement — Application in relation to a trading trust trustee to set aside deed on a number of grounds — Misleading and deceptive information, material non-disclosure, deed unfair, oppressive and discriminatory — Relevance of comparative return under liquidation versus deed and onus of proof — Administrator opposed to Deed not having been given essential company records and prevented by vote from seeking adjournment of meeting to clarify extent of plaintiff creditors’ right of proof — Circumstances of voting including "in-house" votes — Trustee’s right of recourse to trust assets purportedly excluded — Trustee’s right to exoneration and indemnity not effectively excluded — Capacity to exclude — Allegation that trustee’s retirement not effected in accordance with deed — Possible duty of administrator to seek directions — Statutory grounds under Corporations Law to terminate inter alia under s445D or declare deed void under s445G — No delay.

Negligence - Content of Communication to Another - Whether Mis-statement in Fact - Reliance - Causation - Local Government Body - Liability

EASEMENTS and PRESCRIPTION - right of way - grant of ROW by Court under s.88K of Conveyancing Act - LOCAL GOVERNMENT - - Community Land - grant of ROW - where road access existed on the DP but was not practicable and access had been obtained for many years over land now owned by Council but not capable of any active use, the Court ordered a ROW - consideration of interaction of s.88K with limitations on powers of Council to deal with Community Land.

Review decision of CCT - concurrent proceedings in Local Court and CCT - denial of natural justice

Contract - loan agreement - guarantee - provision for two guarantees - express or implied conditions - objective intention - D

Mortgages [24]- Liens- Solicitor- Documents received for specific purpose- Whether available for lien - Professions [170]- Solicitor- Lien- Documents received for specific purpose- Whether available for lien - Real Property [17]- Co-owners- Deeds held by one co-owner- Solicitor's lien created- Whether solicitor may retain deeds.

PRACTICE and PROCEDURE - subpoenas - access to documents and information. - CORPORATIONS - Investigation - transcripts of examinations and s.600 proceedings - provisions of s.25 and s.127 of CL limiting access - inspection of documents produced by ASIC on subpoena. Plaintiffs subpoenaed ASIC to produce examination transcripts and other documents which ASIC was restricted from disclosing - ASIC produced documents to Court - defendant (examinees) applied to Court for direction preventing access and inspection by plaintiffs - Judge inspected documents and allowed inspection by lawyers for plaintiffs subject to controls on communicating information - consideration of circumstances in which inspection of non-party's documents is allowed - legitimate forensic purpose.

Family provision - Plaintiff claims to be de facto widower of deceased - Defendant disputes status of plaintiff and asserts that he was merely a lodger in deceased's apartment - Plaintiff and deceased resided together for thirty-seven years - Deceased was thirty-one years older than plaintiff - Nature of domestic arrangements between plaintiff and deceased - Whether they had a sexual relationship - Parties jointly purchased an investment apartment in Athens - Plaintiff retired from employment when aged forty-eight - Manner in which plaintiff managed household, and cared for deceased in her declining years - Plaintiff attended to deceased's banking - Plaintiff was appointed executor of deceased's will - Status of plaintiff as de facto widower of deceased is not determinative of plaintiff's claim - Financial and material circumstances of plaintiff - Present assets of plaintiff total $890,000 - Whether plaintiff has been left without adequate provision for his proper maintenance - Competing claims of residuary beneficiaries - Proceedings under Family Provision Act are not an appropriate vehicle by which to resolve disputed questions concerning the existence or non-existence of additional assets in the estate or concerning the conduct of the plaintiff in the course of his administration of the estate.

CRIMINAL LAW - Bail - prosecution application to review bail granted to plaintiff - whether bail can be revoked pending the determination of the review - whether magistrate hearing review is disqualified from further hearing

Local Government [244]- Consent validity- Low cost housing- Supreme Court normally follow Land and Environment Court on these issues. - Local Government [275]- Supreme Court- Challenge to jurisdiction- Mareva injunction application- Plaintiff objects to court considering basic issues- Proceedings dismissed.

Master and Servant - Liability of employer for injury suffered by employee - Duty of care - Safe system of work - ND

Injunctions restraining dance parties - argument that original development consent extended to cover terms of injunction - declaration sought - whether 2nd appellant improperly joined - incompetance of legal representation at trial - original consent construed in 1994 - res judicata - failure of appellants to obtain further development consent for dance parties - injunction upheld.

On "McKimmie" documents on subpoena - claim for privilege - T4596

PRACTICE AND PROCEDURE - dismissal of proceedings - plaintiff's non-compliance with directions - failure to provide particulars of allegations of misleading and deceptive conduct as directed by the court - plaintiff has no pesonal interest and no possible right to damages - proceedings dismissed - Pt 33 r6 SCR