Cases and authorities

TORTS — Negligence — Architect’s duty of care and its scope — Policy — Building defectively designed with latent defect — internal wall required to act as external wall which collapses in high wind because not sufficiently stabilised — Liability of architect for design, supervision and communication with engineer in particular circumstances — Liability of engineer — Reasonableness of conduct of plaintiff as owner or lessee in relation to later reports by other experts prior to collapse — Relevance of whether if acted upon collapse would have been averted — Causation — intervening cause or novus actus interveniens — Aggravation of damage — Contributory negligence — Mitigation — Relevance of defendant’s duty to take care against the same risk as eventuates — tortious recovery in negligence of damages for loss of a chance versus all or nothing LIMITATION OF ACTIONS — Negligence — Onus — Pirelli rule in Australia — Economic loss — When defect discoverable — Allowance for time taken to take reasonable steps —Nominal damage outside limitation period — When is damage sustained if depends on a contingency.

CORPORATIONS - winding up - application to set aside transactions as void against the liquidator pursuant to s358 and s452 of Companies (NSW) Code - mortgages and charges - gold loan facility - whether funds used in repayment subject to security - charged deposits - whether creditor could have security over debt owed to depositor - set off - automatic operation on bankruptcy - operation where transaction prior to winding up commencement but on same day; PRECEDENT - conflicting decisions - long standing Australian decision - recent obiter of House of Lords but on direct point

Criminal Law and Procedure - Sentence - Narcotic Importation - Courier - Traffickable Quantity - Range of Sentence

aggravated dangerous driving occasioning death.; High blood alcohol reading of accused; appeal against sentence

Wills and executors - executor's duty of inquiry into status and ownership of assets - principles concerning executor's right or indemnity out of estate for costs; Corporations - companies - duties of directors and secretary - duty to maintain corporate records - duty to clarify records as to status and ownership of shares; Practice and procedure - costs - principles as to award of indemnity costs

Firearms Act and Regulation - approval of club by Commissioner of Police - whether Commissioner entitled to revoke approval

Quash orders of Consumer Claims Tribunal; Denial of natural justice

Trade Practices - Misleading or deceptive conduct by corporation - Motor vehicle finance - Motor dealer - "Third party transactions/deals" - Finance application, dealer invoice and Form 4 incorrect on face - Misleading or deceptive as to identity of supplier and owner of motor vehicle - Identity important to financier - Misleading or deceptive conduct caused payment of finance and commission - Principal executive and director not in any way, directly or indirectly, knowingly concerned in, or party to, contravention by corporation - Trade Practices Act 1974 (Cth), ss. 52, 75B(1)(c) - Motor Dealers Regulation 1986, Sch. 1 Form 4 - Contract - Introducer Agreement not executed by Financier - Introducer Agreement not effective.

Defamation - imputations alleged

PRACTICE AND PROCEDURE - amendment of statement of claim after hearing concluded. Amendment allowed

CORPORATIONS [182] - Voluntary administration - Protection of company property - Secured creditor - Application under s 441D to limit powers of chargee where enforcement action commenced before administration - Relevant considerations - Adequate protection of chargee's interest - Meaning.

PRACTICE AND PROCEDURE - INTERLOCUTORY INJUNCTIONS - DUTY NOT TO MISLEAD COURT. At the hearing of a contested application by the lessee and/or occupant of two properties for an interlocutory injunction, the defendant deliberately misled the Court concerning a proper occupation fee for one property. On discovering this, the plaintiffs applied for a review of the conditions of the injunction imposed in relation to both properties. HELD that, had the original judge known that the defendant was deliberately misleading the Court concerning a proper occupation fee in respect of one property, this may have made a difference in the conditions imposed in respect of the other property; that those conditions should be reviewed; and upon review, that less onerous conditions should be imposed.

Appeal; unresponsive answers alleging bad character; cross-examination by prosecutor as to motives of other witnesses; lying; relevance of issues at trial; no miscarriage

Criminal law; application for leave to appeal against sentence; application out of time; subsequent abandonment; leave to withdraw notice of abandonment; relevance of merits of grounds of appeal to exercise of discretion

Leave to appeal out of time - No question of principle

EMPLOYMENT LAW - CONTRACT OF SERVICE. EQUITY - FIDUCIARY OBLIGATIONS

MORTGAGES

Appeals from Commissioner to Strata Schemes Board

Conveyancing - statutory warranties in contract for sale of land - s 149 certificate fails to disclose council's policy on aircraft noise - warranty that s 149 certificate specifies true status of land regarding council policy to restrict development because of 'other risk' - scope and construction of warranty - entitlement to rescind - whether council's policy on aircraft noise a matter 'affecting' the land - meaning of requirement that purchaser would not have entered into contract if aware of existence of council's policy; statutory interpretation - purposive interpretation of remedial and reformatory legislation - relevance of ejusdum generis and noscitur a sociis rules.

Family Provision; Small estate; Unreasonable attitude of defendant; Section 33 exercise of discretion; Unconventional lifestyle; Competing needs of siblings.

Notices of appeal challenging orders - Respondents seeking dismissal of notices of appeal due to non-compliance by appellant with requirements of rules relating to the filing of appeal books - Application by appellant for adjournment due to lack of funds - No question of principle.

STATUTORY INTERPRETATION - Interpretation Act 1987 s30 - legislative intention that provision of Interpretation Act does not apply to an act; STATUTORY INTERPRETATION - common law presumption - no intention to expropriate property without compensation; STATUTORY INTERPRETATION - Racial Discrimination Act 1975 (Cth) - s8 "special measure" - s10 a corporation is not a person of a particular race, colour, national or ethnic origin; CONSTITUTIONAL LAW - Commonwealth Constitution s109- inconsistency with state law; CONSTITUTIONAL LAW - limit on legislative power of Parliament - no restriction on power to expropriate property without providing compensation

INJUNCTIONS - BALANCE OF CONVENIENCE. MORTGAGES

Set aside notice pursuant to s 152 - LPA 1987

EQUITY [378] - Equitable Remedies - Injunctions - Practice and Procedure - Other Matters - Costs - Interlocutory injunction - No order as to costs.

Conveyancing. Land Titles under the Torrens System.; Caveats against dealings. Building contract providing for a charge over land such land being residential land within the Home Building Act 1997. Held that on its proper construction s 7D of the Home Building Act restricts the caveatable interest to a licence holder who has obtained a judgment or order of a Court.; Interpretation. Application of s 33 of Interpretation Act.

CORPORATIONS [253] - Winding Up - Conduct and Incidents of Liquidation - Effect of Winding Up on Other Transactions - Preferences - Limitation of action to bring preference claim - Extension of time under Corporations Law, s 588FF - Relevant condsiderations.

Criminal Law and Procedure - identification - photographic identification - whether verdict unreasonable.

Criminal Law - appeal against severity of sentence - person in authority having sexual intercourse with person who has intellectual disability - Crimes Act 1900 (NSW) s 66F - importance of deterrence - relevance of alleged mutual loving relationship - whether a matter of aggravation or amelioration

Sentence - sentence in serious rape equal to or exceed sentence in murder case - statutory order - error of no affect.

Evidence Act, ss114,115 - Criminal Appeal Act, s5(f).

EQUITY [338] - Equitable Remedies - Injunctions - Interlocutory Injunctions - Balance of Convenience - Interlocutory Injunction granted for short limited period to permit preparation for final interlocutory hearing.

Imputations - capacity & form

Imputations - form - capacity - special damages - aggravated damages

Imputations - capacity - difference in substance - "lack of commitment" - "lack of discipline"

Imputations - form - capacity - difference in substance

Whether statutory declaration constituted the deceased's will pursuant to s18A of the Wills, Probate and Administration Act (NSW) 1898.

Imputations - capacity - form

Contextual imputations - capacity - form - discovery and inspection - interrogatories

Criminal Law - sentencing - young offender; Criminal Law - sentencing - murder; Criminal Law - sentencing - robbery

Further list of document; Service of experts reports

Joinder, necessity, Part 7 r.8 District Court Rules - Part 8 r.8 Supreme Court Rules.

LAND AND ENVIRONMENT COURT - validity of building approval - whether building approval, if valid, had been breached

Damages; professional negligence; assessment of damages where solicitor allowed claim to become statute-barred

CORPORATIONS — Campaigning by director or board in a contested board election must not be misleading or deceptive; PRACTICE & PROCEDURE — Need for compliance with undertaking for corrective advertising — Attempt to justify taking a week when no express time period and therefore in what in the circumstances had to be a reasonable time period — Cost orders for plaintiff where delay sought to be excused by Defendant’s stated need for further legal advice following press release and advertisement by plaintiff — No attempt to obtain leave of court by defendant.