Cases and authorities

CIVIL PROCEDURE – application to set aside default judgment – whether satisfactory explanation for delay - whether defendant has a bona fide defence and an arguable or triable issue – whether default judgment should be set aside on the basis of irregularity in the judgment sum

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – decision of a review panel – whether review panel erred in its construction, and misapplied the MAA Permanent Impairment Guidelines – whether review panel erred in failing to re-examine plaintiff – whether review panel denied plaintiff procedural fairness

CONTRACT – whether a sum of money advanced to the appellant was a gift or a loan (now owed to an estate) – construction of an “acknowledgement”, signed after the advance of funds EVIDENCE – rejection of evidence – whether the primary judge erred in declining to admit evidence as to the circumstances in which the acknowledgement, which had no juridical effect, was made SUCCESSION – rule in Cherry v Boultbee (1839) 41 ER 171 – whether the acknowledgement limits the range of possible funds from which the “loan” might be repaid to the estate

TORT – negligence – occupiers’ liability – scope of duty of care owed by the owner of commercial premises to an employee of the tenant of the premises – relevance of the existence of “dangerous defects” – whether any such duty was breached

EASEMENTS – grant of easement under s 88K of the Conveyancing Act 1919 (NSW) – payment of compensation – what are “special circumstances” for the purpose of determining whether compensation is not payable – onus of identifying the “special circumstances”

CONTRACT - novation - successive written loan agreements between same parties - whether later agreement discharged parties’ obligations under earlier agreement - no express rescission of earlier agreements - later agreements dealt with same subject matter and in different terms - context confirmatory - later agreement impliedly discharged earlier agreement CONTRACT - breach - dependent and independent obligations - lenders promised to advance funds at particular date - borrower promised to provide security within a reasonable time - borrower promised to repay amounts lent plus interest plus uplift - contract not executed until after the time specified for the funds to be advanced - lenders refused to advance entirety of funds until security provided - relevance of oral stipulation that final amounts would not be advanced without security being provided - lenders in breach - whether borrower’s obligation to pay uplift independent of lenders’ obligation to advance entirety of funds - obligations dependent, not independent

BAIL – detention application – show cause requirement – risk of reoffending – where respondent charged with large number of sexual offences – where guilty pleas indicated in respect of many charges – relevance of plea to show cause requirement – where no evidence of any treatment or counselling being sought to avoid repetition of admitted conduct

PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory orders made by Magistrate in Local Court pursuant to Local Court Act 2007 (NSW) – plaintiff unfit to attend court due to ongoing medical condition on second occasion – whether hearing date should be vacated – what orders should be made to progress hearing

PROCEDURE – stay of proceedings – proceedings claiming damages for negligence by prisoner assaulted whilst in custody – plaintiff under Extended Supervision Order – plaintiff seeks stay until determination of appeal against ESO – no appeal yet lodged – ESO made in 2009 – stay refused LEGAL AID – pro bono assistance – plaintiff impecunious and under psychological disability

PROCEDURE – pleadings – claim for debt arising out of guarantee – failure of defence to demonstrate an arguable defence to the claim – form of defence – pleading struck out with leave to re-plead

CONTRACT – whether oral partnership or joint venture entered into between first plaintiff and defendant’s late husband to develop properties then owned by late husband – whether such partnership survived the death of the defendant’s late husband – whether defendant bound by agreement or otherwise to continue arrangements allegedly agreed to by her late husband – whether first plaintiff entitled to recovery under a quantum meruit; LANDLORD AND TENANT – residential tenancy agreement – whether defendant/cross-claimant entitled to possession of property the subject of oral residential tenancy agreement – whether Court has jurisdiction to make an order terminating the residential tenancy or an order for possession; EQUITY – whether plaintiffs acted in breach of fiduciary duty to defendant – whether plaintiffs obliged to account to defendant for profit thereby made

CORPORATIONS – meetings – notice of directors’ meetings – where directors notified of meeting less than two hours prior to commencement – where notice of meeting sent by text message – whether notice reasonable in the circumstances – whether order under s 1322(4) of the Corporations Act 2001 (Cth). CORPORATIONS – voluntary administration – administrator – where directors appointed administrator – where directors not called to give evidence – where administrator’s evidence sought to establish solvency or likely insolvency – whether directors held requisite genuine opinion as to solvency or likely insolvency under s 436A of the Corporations Act 2001 (Cth). CORPORATIONS – voluntary administration – administrator – where directors appointed administrator for the purpose of assisting with negotiations with another director and shareholder – whether purpose foreign to Pt 5.3A of the Corporations Act 2001 (Cth).

CORPORATIONS – Order sought for leave under s 500(2) of the Corporations Act 2001 (Cth) to proceed with a claim against company in voluntary liquidation – where claim is a proprietary claim – whether leave should be granted to bring claim. EQUITY – trusts and trustees – express trusts – where disposition of trust property to First Defendant – whether disposition to First Defendant made in accordance with trust instrument after execution of amendment agreement – whether trust property received by First Defendant as volunteer.

CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – final hearing – whether continuing detention order should be made – continuing detention order made – whether subsequent extended supervision order should be made – extended supervision order not made

PROCEDURE – civil – commencement of proceedings contrary to Uniform Civil Procedure Rules (NSW), r 7.1(3) and out of time – power to dispense with requirement of rules – Civil Procedure Act 2005 (NSW), s 14 REAL PROPERTY – strata titles – claim by owners corporation of recovery costs – reasonableness of such costs incurred and claimed – whether costs claimed must be proportionate – referral to assessment of costs – Strata Scheme Management Act 1996 (NSW), s 80

CRIMINAL LAW – appeal – sentencing – whether trial judge was correct in finding complainant suffered substantial psychological fear – s 21A(2)(g) Crimes Act 1900 (NSW) CRIMINAL LAW – appeal – sentencing – assessment of objective gravity of the offence – misapprehension of facts by trial judge – whether applicant was in possession of “baseball bat” – House v The King principles

PROCEDURE – judgments and orders – application to set aside or vary judgment and orders dismissing application for leave to appeal – complaint as to adequacy of legal representation on hearing of application for leave to appeal – complaint that applicant was deprived of natural justice – re-agitation of arguments already considered – no point of principle

CONTRACT – option agreement – rectification – whether contract gave effect to common intention EVIDENCE – appeal against credit findings – where adverse credit findings alleged to be inconsistent with objective commercial circumstances

DISABILITY – application for payment out of moneys paid into Dust Diseases Tribunal pursuant to judgment of Tribunal – where beneficiary formerly incapable of managing affairs – where money now held by NSW Trustee & Guardian in common fund – whether Court has jurisdiction to order payment out of money to plaintiff – effect of (NSW) Civil Procedure Act 2001, s 77 – s 77 not to detract from Court’s inherent parens patriae jurisdiction – power to order payment of money to plaintiff personally where no longer incapable.

PROCEDURE – civil – interlocutory issues – application for adjournment – unavailability of counsel apparently retained by defendant

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

APPEAL – appeal against Local Court decision – Local Court Act 2007 s 39 – unrepresented party – departure from procedures – refusal of adjournment – admissibility of statement when witness not available – leave to argue facts on appeal

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – where children have given sole consent – availability of adoption order without consent of natural parents – where requisite notice given to natural parents – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the children – where restoration of child to birth parents not proposed – no requirement to dispense with consent of natural parents – weight to be given to children’s wishes – where adoption would serve children's identity needs as it would confirm the children's identity with their psychological family and as the children have no desire for contact with natural parents – where adoption plans do not provide for contact with natural parents – where s 91 reporter confirmed that contact with natural parents would not be in children’s best interests – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the children. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names of children – where children seek change to second forename to accord with adoptive mother’s family – where given names should, as far as practicable, be preserved – where regard is to be given to children’s wishes – where desire for name change is well-considered and founded on rational reasons – where name change is in best interests of children – held, changes to children’s second forenames ordered.

CRIMINAL LAW – BAIL APPLICATION – show cause – combination of circumstances – lengthy remand period – stringent bail conditions – applicant on parole – bail granted

EVIDENCE – Evidence of hearsay representations of deceased – Whether admissible

CRIMINAL LAW – evidence – voir dire

PROCEDURE – transfer between courts – proceedings commenced in District Court – workplace injury claim – application to transfer to Supreme Court – requirements for transfer under s 140(3) Civil Procedure Act – need to show complex legal issues or issues of general public importance – no such issues demonstrated

CRIMINAL LAW – proceeds of crime – restraining orders

MEDICINE – medical treatment – scope of – whether removal of sperm from moribund unconscious patient constituted treatment – capacity of wife to consent WORDS AND PHRASES – “medical treatment” – Guardianship Act 1987 (NSW), s 40

ADOPTION – where child taken into care in infancy – where birth parents have little or no contact with child – where paternal grandmother opposes adoption order – where position changes during hearing – where access visits with birth family subject of Adoption Plan - whether order for adoption in best interests of child – whether Adoption Plan should be registered.

CHARITIES – charitable purposes – other purposes beneficial to public – where company provided services to the agricultural industry – where company’s purpose includes promotion of the interests of Australian grain growers – whether company has as its sole or dominant purpose a charitable purpose. TAXATION – payroll tax – exemptions – where taxpayer a non-profit organisation – whether taxpayer exempt from payroll tax on wages paid to its employees under s 48 of the Payroll Tax Act 2007 (NSW). TAXATION – payroll tax – exemptions – where taxpayer was involved in the promotion of the agriculture industry – where taxpayer acquired two companies engaged in commercial purposes related to the agriculture industry – whether employees of taxpayer in relation to those businesses are mixed roles engage in work ‘of a kind ordinarily performed’ for a charitable purpose under s 48(2) of the Payroll Tax Act 2007 (NSW).

CORPORATIONS – winding up – insolvency – proceeds of contract of reinsurance – application for orders under Corporations Act 2001 (Cth) s 562A(4) – whether “just and equitable” to make orders sought by the Plaintiffs.

CORPORATIONS – winding up – insolvency – proceeds of contract of reinsurance – application for orders under Corporations Act 2001 (Cth) s 562A(4) – where proceeds received as consideration under an assignment agreement in respect of unpaid reinsurance debts – whether proceeds were “in respect of” a reinsurance liability and were “received” by insurers for the purposes of Corporations Act 2001 (Cth) s 562A(1)(b) – whether proceeds received “under a contract of reinsurance” – whether “just and equitable” to make orders sought by the Plaintiffs

CONTRACT – rescission – contract for sale of shares in company – where shares carried right to exclusive occupation of an apartment held in ‘company title’ – where cl 6.1 of the contract required the company to consent unconditionally to the transfer – where consent was given, provided that the purchaser accede to certain amendments to the ‘house rules’ – whether such consent sufficient for cl 6.1 CONTRACT – rescission – where cl 10(g) of the contract required company to keep proper records – whether cl 10(g) a condition or a mere warranty – where company failed to minute a decision to grant a revocable licence allowing the former shareholder to install an air-conditioning system – where purchaser had no means of ascertaining the existence of that licence or that it was revocable at will – whether purchaser entitled to rescind under cl 10(g) EQUITY – innocent misrepresentation – where vendor at all material times had a copy of a letter setting out the terms of the licence – where vendor failed to disclose licence to purchaser – where a reasonable purchaser would assume the air-conditioning was included – whether vendor’s omission amounted to an implied representation that the air-conditioning was entirely ‘within Unit 20’ – whether it amounted to an implied representation the purchaser would have exclusive rights to use the air-conditioning CONVEYANCING – requisitions – where vendor incorrectly answered requisition concerning the existence of licences – whether that requisition goes to title or merely to quality – where answer did not induce the purchaser to enter into the contract – where innocent misrepresentation in the context of requisitions was not fully argued TRADE PRACTICES – misleading and deceptive conduct – whether sale of land occurred ‘in trade or commerce’ EQUITY – unconscionable dealing – where statutory unconscionability under s 21 of the Australian Consumer Law only applicable to acts ‘in trade or commerce’ – where general law unconscionability requires knowing exploitation of special disadvantage – where those elements not pleaded – finding of no unconscionability – relief against forfeiture sought on basis of same alleged unconscionability therefore also unavailable CONTRACT – frustration – Frustrated Contracts Act 1978 (NSW) – whether change of house rules after contract and before settlement frustrated contract – where both the company’s articles of association and the house rules formed part of the background of the contract – where neither confined the ability of the company board to make amendments TORT – negligence – purchaser’s alternative claim against company – where, after the earlier email granting approval conditionally, company suggested in later email that approval had not been given – whether purchaser vulnerable – whether company owed purchaser a duty of care to ensure its communications to the purchaser were accurate – construction of communications in their context – whether communications relied upon TORT – negligence – company’s cross-claim against its managing agent – where agent owed company duties of care in tort and in contract – earlier email – whether agent breached its duties by neglecting to inform purchaser, as instructed, that final approval was conditional upon a successful interview with the company – whether damage caused by that email foreseeable – later email – whether agent breached its duties by failing to highlight to the company that the later email was inconsistent with the earlier email – where agent normally had no independent role in the drafting of correspondence – conveyancing searches – whether agent failed to make relevant documents available to purchaser’s searcher EVIDENCE – admission of letters headed ‘without prejudice’ – where part of letter written to negotiate a settlement of the dispute – exclusion of that part under Evidence Act 1995 (Cth) s 131(1)(a) – where response letter did not relate to negotiation of settlement – admission of response letter – defendant’s resultant choice to withdraw objection to admission of earlier letter PROCEDURE – where defendant seeks to withdraw deemed admission – where material fact admitted through a drafting technique whereby defence was silent as to facts that were admitted – where defendant claims not to have understood the significance of the fact so admitted – where that position untenable on the evidence – withdrawal of admission refused

DEFAMATION – pleadings – imputations – capacity – requirement of imputations to differ in substance

PROCEDURE – civil – application that District Court proceedings be transferred to this Court

PROCEDURE – security for costs – summons in supervisory jurisdiction – corporate and individual applicants – half day hearing to occur in one month – limited evidence of impecuniosity of corporate applicant – no evidence of factors under UCPR r 42.21 – no evidence of likely costs

APPEAL – stay pending appeal – respondent council seeking to enforce only orders with respect to removal of waste – public interest in health and safety – limited prejudice to applicants in enforcement – no manifest excess of power in making orders

SUCCESSION – family provision – application for provision by estranged son – challenge to factual findings as to cause of estrangement and as to whether son attempted reconciliation – whether, absent callousness or hostility, estrangement is a determinative factor in case of significant financial need –whether reasonable members of the community would have expected deceased to have made provision for estranged son

Administrative law – judicial review – costs assessment – appeal to District Court – whether primary judge denied applicant procedural fairness – whether primary judge failed to take relevant consideration into account – whether primary judge made decision contrary to the evidence

CORPORATIONS – Winding up – Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – Where expert report assesses the Company’s solvency – Where director gives undertaking supporting the Company’s ability to meet debts as and when they fall due – Where liquidator neither consented to nor opposed the application – Whether to terminate winding up.

CORPORATIONS – administration – application for extension of convening period for meeting of creditors to allow administrators to consider factors in Corporations Act 2001 (Cth) s 439A(4).

PROCEDURE – application to vacate hearing date – contempt charges – plaintiff seeking imprisonment if charges proved – defendant self-represented with some expected assistance of counsel – defendant’s failure to serve affidavits as directed – late notification of hearing date by court – unavailability of defendant’s counsel – hearing vacated

PROCEDURE – cross-vesting between courts – plaintiff residing in northern NSW near the border with Queensland – plaintiff assaulted while on school sports tour overseas – plaintiff attending schools in Queensland at time of tour – other parties and expert witnesses reside in Queensland – cross-vesting order made

PRACTICE – Claimants to surplus funds paid into Court by registered mortgagee – No issue of principle – UCPR Pt 55 r 55.11

CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – fitness hearing – reasons for various rulings during fitness hearing – reasons for refusal of adjournment and disqualification applications – objections to expert report – further applications for adjournment refused

PARTNERSHIP – dissolution and winding up –dealings with partnership property – identification of partnership property – where partnership conducted through a company as agent for the partnership – whether either partner continued the business of the partnership after dissolution – Partnership Act 1892 (NSW) s 42

ADMINISTRATIVE LAW – summons seeking judicial review of decision to refuse a working with children clearance – application for summary dismissal – where plaintiff has statutory right to review by NCAT – whether concurrent proceedings an abuse of process – whether relief sought in summons destined to fail – risk assessment form – whether certain signatures required – statutory interpretation – whether “satisfied” means “completely satisfied” – protective statute – definition of risk – summons dismissed