Cases and authorities

Action for negligence for not taking due care with defective equipment

Action in District Court for professional negligence against specialist gynaecologist

PRACTICE AND PROCEDURE — Appeal from Master declining to order separate questions to be tried — Principles to be applied in such appeals and in ordering separate questions under Pt 31 r2 Supreme Court Rules — Particular application of those principles to the construction of contracts.; CONTRACTS — Principles of construction — Scope of resort to extrinsic evidence by way of factual matrix — "Ambiguity" an ambiguous term.; EQUITY — Fiduciary obligation of joint venture operator derived from being a fiduciary agent — Relevance of contract when not the fundamental source of the fiduciary obligation.

Contract; construction; whether contract of comprehensive insurance ambiguous; whether contra proferentem rule should be applied

Sexual offence; complaint; prior consistent statement; when admissible exception to hearsay rule; when admissible on credibility; when leave necessary; criteria for grant of leave and exercise of discretion; leave not considered; counts of separate events; complaint on some charges not fresh; new trial ordered

COSTS - Unaccepted settlement offer - No point of principle.

Conceal serious offence - limited opportunity to comply with legal duty - intoxication - confusion - prior good character - continuing alcohol problem creating vulnerability.

Mother - failing to inform authorities of son's committing murder - counsels son to surrender to justice - offence of conceal serious crime

Set aside statement of claim ; Conveyancing Act 1919 (NSW) - s 66ZG; Dismissal - Part 13 5 SCR)

Banker and customer; Cross action; Negligence; Contract; S 52 Trade Practices Act 1974 ; Negligent misrepresentation

Corporations - companies - members' scheme of arrangement - conditions precedent expressed as the issue of certificates that specified events have occurred - when additional evidence of occurrence of those events is appropriate

WILLS PROBATE AND ADMINISTRATION - informal wills -documents signed by deceased which if valid as testamentary documents, disposed of valuable rural property - some formal words used - evidence intended to have immediate effect - admitted to Probate under s18A

Complaint of sexual offence - prior consistent statement - leave for admission on credibility only - suggestion of fabrication not made by mere denial - such suggestion should be expressly put - criteria for leave - criteria for exercise of discretion - criteria for waiver of the necessity for leave.

Apprehended violence order - revocation by both parties - Court ought not intervene.

EVIDENCE ACT 1995 - prior inconsistent statement - application of s43 - effect of ss60 and 64; TRUSTS - whether resulting trust - principle in Calverley v Green (1984) 155 CLR 242 inapplicable; EVIDENCE - parties admittedly engaged in dishonest activity - whether evidence could be relied on; COSTS - trustee in bankruptcy - whether costs should follow event where bankrupt engages in dishonest activity - whether fraudulent - trial Judge's discretion

De Facto relationship; Application for orders adjusting interests with respect to property; House property acquired by parties as joint tenants; Plaintiff was principal breadwinner; Defendant was principal homemaker and parent; Financial assistance from plaintiff's mother towards acquisition of house property; Respective contributions of parties to relationship; House property must be sold; Whether advance from plaintiff's mother should be repaid out of net proceeds of sale before equal division of balance between the parties; or whether that advance should be repaid out of the plaintiff's share of net proceeds of sale.

Justification - adequacy of particulars - contextual truth (s 16) non-availability of plaintiff's imputations "complained of" therefor - comment - sufficiency of particulars

Administrative Law; declaration; subdivision of real property; whether Deposited Plan as registered 'substantially conformed' to subdivision plan (Ordinance 32 cl 3(a)(i) (Conveyancing Act 1919)); whether Deposited Plan (as registered) disclosed 'error' within s 195H Conveyancing Act 1919; whether proceedings time-barred

INJUNCTIONS — Final injunction to restrain director from repeating TV and radio advertisements said to be misleading or deceptive either in breach of s42 of Fair Trading Act 1987 (NSW) or of director’s fiduciary duty.; TRADE PRACTICES— Section 42 of Fair Trading Acts — meaning of "in trade or commerce" — Silence as misleading conduct in case of a director.; CORPORATIONS — scope of director’s fiduciary duty in advertising campaign for election of a group of directors not to mislead or deceive — Aggregating previous year’s unrealised book loss in carrying values to subsequent year’s realised loss.; WORDS AND PHRASES — "loss" in a transaction — Capital loss versus capital decline.

Equity. Application for specific performance of agreement to commute to a lump sum a workers compensation claim.; Contracts. Whether non-fulfilment of condition subsequent makes contract void or voidable. Effect on condition requiring consent by repeal of legislative requirement for consent.

Criminal law; sentencing; manslaughter; deceased electrocuted as consequence of criminal negligence of prisoner; special circumstances; sentence of nine years penal servitude with minimum term of six years

negligence - aggravated damages - failure trial judge to find aggravated damages.

CONTRACT - Sale of goods - Motor cycle - Manufacturer sells goods to Australian distributor - Australian distributor sells goods to dealer on receipt of order from dealer - Dealer delivers order to Australian distributor on receipt of order from purchaser - Purchaser not brought into contractual relationship with either manufacturer or Australian distributor; NEGLIGENCE - Manufacturer of goods - Distributor of goods - Liability for damage caused by goods purchased through dealer - Alleged latent defect in goods - Alleged defect in design of goods or in materials used in manufacture of goods; NEGLIGENCE - Proof of - Res ipsa loquitur - Throttle on motor cycle jamming while motor cycle being ridden at speed - Whether inference of negligence available; SALE OF GOODS - Conditions and warranties - Whether sale by description - Whether purchaser relied on seller's skill and judgment - Whether goods of merchantable quality

NEGLIGENCE - personal injury - elderly woman falling in church hall - peas spilled on floor - whether inference available as to cause of spillage - whether system for cleaning up ought to have been in place

Costs - on appeal - conditional order for re-trial.

Practice and Procedure - Interlocutory application for appointment of receiver and manager and for injunctive relief - applicable principles - Discretionary factors to be taken into account - Consideration of serious questions for trial and balance of convenience - Intellectual Property - ‘e-commerce services’ - Definition of words ‘equivalent or similar functionality’ - Equity - Fiduciary obligations - Interrelationship with contractual obligations - Whether terms of contract generally or with respect to a specific matter require one party to pursue the other’s interests without regard to its own - Special relationships - Receiver and Manager - Appointment by Court - Plaintiffs’ claim in final proceedings to very substantial amount by way of unliquidated damages - Preservation of subject matter of litigation - Conduct of defendants said to be damaging and destroying subject business - Plaintiffs having no proprietary interest in subject intellectual property or business - Applicants having unlimited guarantee given by bank in respect of defendants’ compliance with obligations under contract - Whether damages an adequate remedy - Delay - Laches - Undertaking as to damages - Value of undertaking as to damages in circumstances - Trade Practices - Misleading and deceptive conduct - Alleged precontractual representations - Contract - Electronic Commerce Services - AUSMAQ system - Sale of intellectual property rights in automated trading/settlement/principal portfolio/reporting system able to effect real time transactions in financial markets and able to operate as a stock exchange - Electronic trading - Purchasing banking group interest in probable use for delivery and support of customer focused services - Changing nature of bank’s business involving unbundling of product function from customer service function - Sale effected by complex set of interrelated agreements including restructuring and consultancy agreements - Plaintiff company [JMG] set up by vendors to provide consultancy services and as entity entitled to receive ongoing performance bonuses and with rights upon invocation of buyout procedures - Defendant company [NMG] acquiring all the shares in operating company and set up as wholly owned subsidiary of bank - Plaintiffs retaining no proprietary rights in undertaking, business or goodwill of NMG or operating company - Plaintiffs’ claim that NMG and bank have by breaches of consulting agreement and by development of services infringing intellectual property rights to AUSMAQ system, threatened the subject matter of the litigation - Application for appointment of receiver and manager of bank’s assets employed in relation to bank’s development of e-commerce services - Application for interlocutory injunctive relief requiring bank to conduct e-commerce services within NMG so as to avoid alleged infringement of NMG’s intellectual property rights and to preserve JMG’s contractual interests in NMG’s profitability - Contract - Construction - whether ‘mutually known facts’ and surrounding circumstances admissible in aid of construction - Implied terms - Principle in Mackay v. Dick (1881) 6 AC 251 - Derogating from grant - Principle in Trego v Hunt (1896) AC 7 - Contracting party not entitled to undermine benefit of a contract - Whether global operation, development and commercialisation of the system a term of the contract - Contract - Consulting agreement - Entitlement to service fees and to performance bonuses relating to the exploitation of an automated market quotation system - Contract - Interlocutory mandatory injunctions - Application for orders that alleged ‘other’ services developed by defendants outside consulting agreement be brought within the scope of consulting agreement - Functionality - Whether ‘other’ services have equivalent or similar functionality - Equity - Interlocutory mandatory injunction seeking attendance and participation at management meetings, submission of draft business plans - Whether party excluded from performing contractual obligations - Whether relief by way of interim specific performance appropriate - Constant supervision of Court - Contempt sanction - Persons subject to a mandatory order attended by contempt sanction must know with precision what is required - Possibility of repeated applications for rulings on compliance with orders requiring a party to run a business over an extended period to be discouraged - Equity - Interlocutory mandatory injunction - Obligation to keep separate accounts and records - Evidence - Expert evidence - ‘Specialised knowledge based on training study or experience’ - Weight to be accorded to the evidence of a partisan expert.

Plaintiff's application for adjournment

Dismiss statement of claim for want of prosecution

Sentence - parity - sentence of co-accused on mistaken appreciation of number of offences of applicant - other circumstances similar - legitimate sense of grievance - armed robbery sentences on their face inadequate - necessity for higher sentences.

Supply prohibited drug - custodial sentence not reserved for traffickers.

PRACTICE AND PROCEDURE — Defendants’ duty of candour not to mislead court in relation to conditions sought by the defendant to be imposed on plaintiff’s injunction; Duty to court of party and of legal adviser.

Wills - probate - whether unexecuted document should be admitted to probate - whether document 'constituted a will' - Court satisfied that the deceased intended the document to constitute his will - relevant factors

Leave to appeal decision of costs assessor

Discretionary interlocutory order - Leave to appeal refused

PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule.

CROSS-VESTING — Relevant factors — No need for disproportionate calling of witnesses — Cost orders reflecting possibility that facts may emerge contrary to basis on which cross-vesting order made.

Sentencing - factual error as to number of offences - disparity with sentence of co-offender - sentence to reflect trial judge's intent.

Sentencing - deferred sentence - relevance of good conduct during lengthy remand - terms of recognisance - error as to length - error as to inappropriate terms - inappropriate to require supervision for whole term unless Probation Service deem it necessary - inappropriate to impose term unrelated to offence, controlling offender's private life - inappropriate term as to place offender could consume alcohol - such term inconsistent with offence and record - remarks as to call up on recognisance inappropriate as suggesting pre-judgment and lack of impartiality - role of judge and prosecutor in sentencing proceedings - patronising and hostile attitude inappropriate - necessity for objective detachment and dispassionate assessment on sentencing.

DAMAGES - Claim of economic loss rejected on credibility grounds - No question of principle.

Notice of Motion - appeal - costs awarded against plaintiffs in favour of cross-defendant.