Cases and authorities

CONTRACT - SALE OF SHARES AT VALUATION - JOINT LETTERS TO VALUER - CONSTRUCTION; EQUITY - MISREPRESENTATION - SPECIFIC PERFORMANCE; TAXES AND DUTIES - PAYROLL TAX - WHETHER LIABILITY ACTUAL OR CONTINGENT

Family Provision. Application under Family Provision Act by a defacto partner of many years. Large estate. Order made for an additional legacy of $600,000.

EVIDENCE [74] - Facts Excluded from Proof - On Grounds of Privilege - Professional Confidence - Legal Profession - Documents - Proof of evidence - Copy sent to witness after execution without imposition of condition of confidentiality - Client legal privilege lost - Evidence Act 1995, ss 119, 122.

INDEMNITY COSTS

Limitation Act - limitation period - statutory interpretation - interlocutory Court orders.

Breach of contract; terms of contract; claim and cross-claim; Referee report; District Court Rules Part 28; Supreme Court Rules Part 72; damages; standing

CONTRACT - sale of land - conditional on registration of subdivision - option to rescind - whether purported rescission valid - whether breach of obligation to take all reasonable steps to register subdivision disentitled vendor from rescinding - whether refusal to comply with erroneous Council requirements unreasonable

Criminal trial - jury proceedings interrupted - application for discharge.

MEDICINE - medical clinics - medical records - ownership of records - company medical clinics provide services to medical practitioners operating on premises - no written agreement between clinic and doctors relating to ownership of medical records - clinics owned paper on which medical records written - whether intention of clinic to transfer ownership of papers in medical files to medical practitioners - held that intention that ownership of papers transfers to doctor when papers are used - Passing off - medical practitioners use of phone numbers previously used by medical clinic - injunctions granted to restrain use of phone numbers.

Summary judgment

MORTGAGES - Equitable mortgage - mortgage constituted by two documents - informal mortgage of house jointly owned by H & W constituted by uncompleted form of mortgage incorporated in later letter - wife signed uncompleted form but was not proved to have authorised the later letter - mortgage only effective against interest of husband.

Insurance - Issues arising from collapse of the Estate Mortgage Trusts - Solicitors acting in preparation of loan and security documents - Solicitors Certificates given to Trustee client omit material information - Knowledge or suspicion of wrongdoing - Side arrangement documented by Equity sharing Agreement not disclosed in Solicitors Certificates - Solicitors Certificate altered to omit material information - Professional Indemnity Insurance - Scope of indemnity - Whether insurers entitled to disclaim liability under policies - Exclusion in respect of liability brought about by dishonest act or omission - Meaning of 'dishonest' under the policies - Whether conduct of solicitors - in breach of fiduciary obligations also amounted in the circumstances proved to dishonest conduct - Exclusion for 'known claims circumstances' - Prior notification - Construction - Whether there were individual contracts of insurance or one composite contract of insurance - Whether the proper construction of the 'known claims/claims circumstances' exclusion requires that the claims circumstances must be known to each and every one of the separately or severally insured - Meaning of 'claim' - Circumstances in which separate and distinct causes of action leading to separate and distinct heads of loss or damage give rise to two claims.

LANDLORD & TENANT - exercise of option to renew lease - notice given by lessee to managing agent of lessor - validity of notice - authority of managing agent to receive notice - determined by terms of lease; - Retail Leases Act - whether operation of s.35 is subject to s.16 - s.35 not limited by s.16 - duty of good faith of lessor in exercising rights under s.35; - Interpretation of lease - vacant possession - practicable - substantial.;

Extension of limitation period

Criminal Law - Sentence - Manslaughter and Assault Occasioning Actual Bodily Harm

Insurance: Applicability of s.54(1) of the Insurance Contracts Act 1984 (Cth).; The plaintiffs, members of an accountancy firm, took out professional indemnity insurance with the defendants for the insurance years 1 July 1993 - 30 June 1994 and 1 July 1994 - 30 June 1995. The insurance was on a claims made and notified basis and included cover for claims arising out of circumstances of which the plaintiffs became aware during the period of insurance and notified the defendants within that period.; In February 1994 the plaintiffs became aware of circumstances but, after taking legal advice, elected not to notify the defendants. A claim was subsequently made in September 1995 and the plaintiffs then claimed in respect of the 1993-1994 insurance year. They asserted that the failure to notify was an omission within the meaning of s.54(1) and (6) of the Insurance Contracts Act 1984 (Cth) which did not allow the defendants to refuse to pay. The defendants declined liability in December 1995.; In the proceedings by the claimants against the plaintiffs, the plaintiffs cross-claimed against their solicitors and verified the cross-claim, which alleged they were not insured. The affidavit deposed that all matters of fact were true. Those proceedings were settled.; In these proceedings the plaintiffs sued the defendants to recover indemnity. The amount was agreed and there was no issue that the defendants were not prejudiced. The basic issue was whether the failure to notify was an omission.; Held that FAI General Insurance Company Limited v Perry (1993) 30 NSWLR 89, which the plaintiffs submitted had been over-ruled by Antico v Heath Fielding Australia Pty Limited (1997) 188 CLR 652, but which the Court of Appeal had held was not over-ruled by Antico in Greentree & Anor v FAI General Insurance Co Limited (1998) 44 NSWLR 706 should not be applied. Consideration of principles of precedent: Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 at pp.171-174.; HIH Casualty and General Insurance Australia Limited v Dellavedova (Full Court of the Federal Court - Lee, North and Mansfield JJ - 15 April 1999 - unreported) and FAI General Insurance Company Limited v Australian Hospital Care Pty Limited (Supreme Court of Queensland Court of Appeal - 9 July 1999 - unreported) considered in the light of Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485..; Reference to the present unsatisfactory state of the law.; Held plaintiffs not precluded by their cross-claim from suing.; Consideration of when interest became payable pursuant to s.57 of the Act.

Withdraw election; Leave commence proceedings - ss 151A & 151D WCA

Landlord and tenant - Construction of lease - Next review clause in long term lease - Whether provision for rent review is one in respect of which time is of the essence - Evidence - Admissibility of surrounding circumstances to aid construction where language ambiguous - Reach of s.55 Evidence Act 1995 does not extend to overcome efficacy of principles laid down in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1981) 149 CLR 337 being principles of substantive contract law.

Negligence; occupier's liability for condition of grounds surrounding hotel; whether contributory negligence; issue as to accident date; whether plaintiff's claim statute barred.

WILLS - application for provision out of estate - where insufficient funds available in estate to meet legacies - circumstances under which such application to be granted where order for provision would necessitate sale of matrimonial home - provision for dependant wife paramount

Shipping and navigation - Enforcement of mortgage over whole of vessel - Preferred Mortgage registered with U.S. Coast Guard within definition of "mortgage" Admiralty Act 1988 (Cth) s.3 - Preferred Mortgage valid - Defendant took ownership of vessel subject to the Preferred Mortgage - Equity - No equitable defences proved to prevent enforcement of mortgage - to extent acts of third party may be contrary to equity not attributable to plaintiff - Admiralty Act 1988 (Cth) ss. 3, 4(2)(a)(iii), 16.

TRADE PRACTICES - Fair Trading Act - misleading and deceptive conduct in trade and commerce - statements made in election campaign; CORPORATIONS LAW - s995(2) and 1025(3) - whether advertisement in election campaign referring to future entitlements to shares is breach of sections

Corporations Law. Application to set aside statutory demand based upon admission that amount was owed. Demand set aside.; Evidence. Admissions. Whether s 87 of Evidence Act affects the common law rule that an admission by an agent requires publication to some one other than the principal. Held it does change the common law rule.

Succession. Wills Probate & Administration. Construction of gift for a purpose. Held the gift passed to those entitled to the property which was the object of the purpose gift. Use of armchair principle of construction.

EVIDENCE - Documents - Request for Evidence as to Authenticity - Not Complied with - Whether Document Should be Admitted

Reference to a Referee pursuant to SCR Part 72 - motion for adoption of report by the Court - principles applicable. Held: on the facts Court should decline to adopt report.

COSTS - Suitors Fund Act 1951 - indemnity certificate.

Motor vehicle accident; damages; Griffith v Kerkemeyer damages; Burnicle v Cutelli; loss of capacity; damages for care; inability to care for children; impairment of ability to lead a normal life; reduction of damages for vicissitudes; Motor Accidents Act 1988 (NSW) ss 72(2), 79, 80

Contract for sale of land in association with contract to build; Rescission; New agreement for contract to build

Rights of Burial - Local Government Act 1919 - Implied/constructive trust.

Dismissal of summons; Summary judgment ; Appeal; Pay-roll tax

COURTS - JURISDICTION - CROSS-VESTING; ESTOPPEL - ISSUE ESTOPPEL. Proceedings were brought in the Industrial Commission and in the Federal Court, both based on the acceptance of employment in reliance on misleading representations. After significant procedural steps in the Commission, the defendant applied to transfer the IRC proceedings to the Supreme Court. HELD that the specialist expertise of the IRC, determination of substantial issues by the IRC, and delay, were factors against transfer; that the question was whether these factors were outweighed by the justice and convenience of avoiding multiplicity of proceedings; that this in turn depended on the likely effect of issue estoppels; that the Federal Court proceedings were unlikely to be significantly shortened by issue estoppels arising from the IRC proceedings; and that transfer should be ordered.

Criminal law; applications for leave to appeal against sentence; issues raised included: (a) impermissible pre-conception or pre-judgment on the part of sentencing Judge that a full time custodial sentence was the only appropriate option; (b) failure by the sentencing Judge to take into account properly particular evidence concerning subjective features of one appellant; (c) failure on the part of the sentencing Judge to deal with the applicant Chieu as a person having no criminal antecedents; (d) a resulting entitlement for the applicant Chieu to be re-sentenced more leniently than at first instance. Held: (a) not established; (b) not established; (c) established; (d) not established. Held: in each case that leave to appeal should be granted but the substantive appeal should be dismissed.

murder - intent - self-defence - availability of alternative verdict of manslaughter - no practical issue on intent - no necessity to leave manslaughter - directions to jury appropriate considering facts and conduct of case - direction to jury about agreement appropriate.

Criminal trial - practice and procedure - duties of prosecutor - witness - refusal to call as not a witness of truth - inadequacy of basis for refusal in absence of proper enquiry - need to confer or otherwise establish basis - evidence received on appeal of witness' evidence of materiality to trial issues - failure to call witness and alternatively to make adequate enquiry causing a miscarriage of justice - principles in Apostilides and Whitehorn considered - role of Crown Prosecutor to seek to secure a fair trial - asserted inadequacies in directions on complaint - asserted inconsistencies in verdicts.

Workers Compensation Act 1987; Application of ss 16 and 18; Disease Injury

CORPORATIONS - co-operatives - scheme of arrangement - allegations of misleading of deceptive conduct and breaches of duty by co-operative and its directors - whether appropriate to grant relief prior to decisions by members and creditors to approve schemes - whether application for relief should be expedited - relevant considerations; TRADE PRACTICES - misleading and deceptive conduct - spheres of application of Trade Practices Act, Fair Trading Act, Australian Securities and Investments Commission Act and Corporations Law

PRACTICE AND PROCEDURE - amendment of pleadings - amendment of statement of claim to introduce new cause of action after limitation period - relevant considerations under Supreme Court Rules; TORT - abuse of process - ingredients of cause of action

Summary judgment; Strike out statement of claim; Interim payment - s 76E SCA

CONTRACT - Interpretation of particular contract - Limits of actual authority as regards the operation of a credit account - Tripartite arrangement - Doubtful creditworthiness of subcontractor - Whether respondent’s conduct by silence amounted to holding out of its subcontractor as its agent - No question of principle; State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170; Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1991) 6 ACSR 464

Family Provisions. Application by a daughter where the whole of the estate was left to the widow. Large estate, small legacy to plaintiff.

CORPORATIONS - management and administration - access to affidavit pursuant to s596C of Corporations Law - discretion of the court to grant leave - applicants failed to make out an arguable case as to improper purposes of administrators

Corporations Law. Application to set aside demand under s459J(1)(b) for some other reason. The reason was the failure of the giver of the demand to reasonably secure the amount due as offered by the recipient. Demand set aside.

Criminal Law - sentencing - aggravated robbery - whether sentence manifestly excessive

Leave to appeal against interlocutory judgment.; Homosexual intercourse with a male above the age of ten years and under the age of eighteen years.