Cases and authorities

PROCEEDINGS FOR DAMAGES - motions by plaintiff to amend statements of claim - plaintiff a prisoner, unrepresented - motions by defendant to dismiss proceedings for want of due despatch

CRIMINAL LAW - appeal against sentence - referral under s 78 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - no lesser sentence warranted at law

TORTS - mitigation of damages - whether plaintiff's refusal to undergo surgery was unreasonable - whether defendant discharged its burden of proof - whether the plaintiff's state of knowledge at the relevant time was taken into account TORTS - award of damages for past and future attendant care services - whether award of damages made by the primary Judge was supported by evidence TORTS - award of damages for past and future domestic services provided to children - whether award of damages made by the primary Judge was supported by evidence

APPEAL - leave to appeal - applicable principles - whether applicant suffered injustice - where applicant's case on appeal inconsistent with applicant's evidence at trial CONTRACTS - general contractual principles - parties - sham corporate entities CORPORATIONS - identification of - Australian Business Numbers (ABNs) and Australian Company Numbers (ACNs)

APPEAL - decision in point of law - interlocutory decision of Dust Diseases Tribunal - whether leave to appeal should be granted WORKERS COMPENSATION - operation of s 151AC Workers Compensation Act 1987 (NSW) where one or more insurers insolvent

CROSS-VESTING - application for transfer from NSW Supreme Court to WA Supreme Court - no present proceedings in WA - jurisdiction to transfer - intention to have matter heard in WA District Court - test still "interests of justice" even though determination in WA Supreme Court would be to transfer further to another court or tribunal - two defendants one WA based and one Queensland based - likelihood that act of negligence occurred in Queensland or involved conduct in Queensland - importance of lex loci delicti - injury occurred in WA - no real issue as to how injury occurred - balancing of law to be applied, on the one hand, being WA against overwhelming location of witnesses in NSW and QLD - application dismissed.

LEASES - whether tenant had an option to renew existing lease - whether option to renew duly exercised - whether tenant's failure to pay rent prevented it from exercising option to renew where landlord failed to issue notice under s 133E Conveyancing Act 1919 - whether renewal of lease pursuant to an option to renew created a new lease - whether obligations under former leases extinguished - whether tenant entitled to diminution of rent for diminution of usability of premises - whether tenant entitled to recoupment of costs of repair to premises - whether obligation to maintain or repair certain parts of leased premises obligation of tenant or landlord. ESTOPPEL BY CONVENTION - whether landlord estopped from denying that option was duly exercised. EQUITABLE SET-OFF - whether equitable set-off available as defence to common law claim for rent.

COSTS - application for indemnity costs based on purported Calderbank offer - defendant's offer essentially walk away offer with plaintiff to pay 90% of defendant's assessed costs - plaintiff already had benefit of interlocutory injunction made over opposition of defendant - no substantial compromise - not satisfied Court should depart from ordinary rule.

TRADE PRACTICES - misleading or deceptive conduct - whether alleged representations were made by relevant defendant - representations as to future matters - whether relevant representations were misleading or deceptive or likely to mislead or deceive - whether defendant had reasonable grounds in making alleged representations - whether plaintiffs had relied on alleged representations - whether it can be established that loss and damage suffered by plaintiffs was caused by alleged representations - application of Corporations Act ss 1041, 1041E and 1041H, Fair Trading Act 1987 (NSW) ss 41, 42, 68 and Trade Practices Act 1974 (Cth). CONTRACTS - construction - where parties relevantly entered into share sale deed and shareholders agreement - where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information - whether relevant defendant had breached provisions under relevant agreements - post-contractual conduct - whether post-contractual conduct admissible to prove existence of relevant setoff agreement. CONTRACTS - restraint of trade - where relevant clauses contained in share sale deed and shareholders agreement prohibited parties from being involved in business which is the same or similar type of business conducted by relevant company - whether relevant clause is void for uncertainty - requirement to offer participation to company before taking up opportunity - whether relevant clause can be characterised as a restraint of trade clause - whether relevant clauses were reasonable as between parties - whether relevant clauses protected a legitimate interest - whether relevant clauses are contrary to public policy under Restraint of Trades Act 1976 (NSW) - whether relevant defendant had breached restraint of trade provisions. CORPORATIONS - assignment of choses in actions - where provisional liquidator had assigned equitable and statutory causes of action of company to relevant plaintiffs under Corporations Act s 477(2)(c) - whether assignment by provisional liquidator was effective - whether causes of action constituted 'property' so as to be capable of assignment by liquidator. CORPORATIONS - management and administration - duties and liabilities of officers of corporation - directors' duties - claim for breach of fiduciary duties and breach of directors' duties at general law - where relevant defendant was non-executive director of relevant company and director of other competing companies - conflict of interest - whether informed consent can be established - whether existing management structure narrowed scope of relevant defendant's fiduciary duties - where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information - whether relevant defendant's conduct amounted to breach of fiduciary duties. CORPORATIONS - management and administration - duties and liabilities of officers of corporation - claim for breach of Corporations Act 2001 (Cth) ss 180, 181, 182, 183 and 191 - duty of care and diligence - duty to act in good faith in the company's best interests - duty to not improperly use position to gain advantage or cause detriment to company - duty of disclosure - where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information - whether conduct of relevant defendants amounted to breach of statutory duties - accessorial liability - whether it can be established that relevant parties were knowingly concerned and involved in alleged contraventions of statutory duties under Corporations Act s 79. LANDLORD AND TENANT - agreement for lease - rent - claim for outstanding rent - whether claim for rent can be established - whether entry into lease was induced by misleading or deceptive conduct or breach of fiduciary or statutory duties - whether landlord is estopped from claiming rent - public policy considerations - whether lease was wrongfully terminated. REMEDIES - where relevant plaintiffs have been assigned causes of action in respect of breach of statutory duties by provisional liquidator of relevant company - whether relevant plaintiffs have standing to obtain compensatory relief under Corporations Act 2001 (Cth) s 1317H - whether plaintiffs are entitled to damages in respect of contravention of civil liability provisions under Corporations Act s 1324(10) - whether jurisdiction for granting injunction sufficiently enlivened for award of damages under s 1324(10). REMEDIES - equitable compensation - account of profits - whether plaintiffs entitled to await judgment before proceeding with election of remedies - whether plaintiffs or relevant company suffered loss and damage as result of any established breach - loss of business and opportunity - whether there was a diminution in value of company's business in respect of diversion of sales.

CONTRACTS - general contractual principles - repudiation and non-performance - renunciation - where purchasers evinced an intention no longer to be bound by the contract and where purchasers declared that they were unwilling and unable to perform their contractual obligations - continuing representation of financial incapacity - whether purchasers wholly and finally disabled from performing the essential terms of the contract altogether - continuing repudiation by the purchasers - vendor entitled to terminate CONTRACTS - general contractual principles - repudiation and non-performance - election - whether by commencing proceedings for specific performance and later filing a statement of claim the vendor elected to affirm the contract - whether vendor therefore precluded from terminating based on prior repudiation by the purchasers - vendor not precluded where after the commencement of proceedings the purchaser commits a breach of an essential term or otherwise evinces an intention to no longer be bound by the contract - purchasers’ unretracted declarations of inability and unwillingness to perform remained as a fact in the history of the matter and gave an unmistakeable colour to their continued inactivity and entitled the vendor to terminate CONTRACTS - general contractual principles - remedies for breach - loss on resale - measure of damages - claim made under cl 9.3.1 of standard contract is one for liquidated damages - availability of special condition interest and land tax for late completion when completion does not occur - damages to be assessed based on the price of the first contract if it had been completed according to its terms - payments contingent upon completion unable to be included as part of the price of the first contract - whether land tax otherwise able to be included as a reasonable expense arising out of the purchaser’s non-compliance with the contract CONVEYANCING - breach of contract for sale and remedies - vendor's remedies - whether notice to complete required before vendor can terminate if purchaser has indicated it is unwilling and unable to complete - notice to complete not required where the conduct of the purchaser amounts to repudiation CONVEYANCING - breach of contract for sale and remedies - vendor's remedies - resale - duty of vendor - mitigation - extent of vendor's obligation to act reasonably so as to mitigate loss on resale - whether trial judge erred in his approach to the question of mitigation EVIDENCE - facts excluded from proof - on grounds of public policy - settlement negotiations and offers - Evidence Act 1995 s 131 - whether communications in emails were made in connection with an attempt to negotiate the settlement of the dispute - whether communications were permissible within the exceptions in Evidence Act 1995 s131(2)(g) or 131(2)(i)

PRACTICE AND PROCEDURE - application by the Attorney General for vexatious proceedings orders - whether the orders had been sought to terminate pending proceedings instituted by the litigant - whether matter should be remitted for further findings of fact - consent orders setting aside the vexatious proceedings orders - whether the application for such orders should be dismissed or remitted to the Common Law Division

APPEAL - application to adduce further evidence - evidence could have been obtained through reasonable diligence for use at trial - evidence not likely to have led to a different result at trial APPEAL - Leave to appeal against costs orders only - whether costs orders based on findings not justified by evidence - primary judge made findings of very serious misconduct based on the credibility of witnesses and adverse inferences drawn from evidence - failure to take into account the gravity of the allegations or matters bearing on the inherent probability that such misconduct occurred - whether appellate intervention is justified in the circumstances APPEAL - application of Supreme Court Act 1970 (NSW) s 75A - not in the interests of justice to order a new trial in circumstances where the appellant no longer sought to disturb the substantive orders

EVIDENCE - admissions - deemed admissions from a failure to respond to a Notice to Admit Facts - application to withdraw admissions - admissions central to defence of the claim - defendant had already served evidence contrary to admissions - withdrawal of admissions allowed

DECLARATORY RELIEF - not granted by consent - fraudulent disposition - relief granted.

COSTS ASSESSMENT - Review Panel - error conceded - declaratory relief - judgment based on certificate - whether judgment unenforceable if assessment giving rise to certificate suspended.

CORPORATIONS - arrangements and reconstructions - schemes of arrangement or compromise - second hearing - relevant considerations - scheme approved

PROCEDURE - application for leave to file further amended cross-claim - strike-out application in respect of amended cross-claim - where leave was previously refused to file amended cross-claim in previous form - where leave was granted for amendments to be made to cross-claim - whether pleadings state with sufficient clarity the case that must be met - whether pleadings have a tendency to cause embarrassment in the proceedings - whether pleadings facilitate the just, quick and cheap resolution of real issues in proceedings.

APPEAL FROM LOCAL COURT - barrister sues solicitor for unpaid fees - whether a barrister can comply with the Legal Profession Act 2004 (NSW) provisions, mandating disclosure of estimates of costs to the client, including updates of costs estimates, by the expedient of general costs disclosure and reliance upon the instructing solicitor working out the anticipated costs

PROCEDURE - vexatious litigant - Vexatious Proceedings Act 2008 - application for leave to institute proceedings - ordinary procedure - whether proceedings to be instituted lack prima facie ground - whether vexatious - no matter of general principle

REAL PROPERTY - Torrens title - caveats against dealings - lapsing notice served under Real Property Act, s 74J - operation of caveat extended under Real Property Act, s 74K(2) - caveat claims an equitable charge over land under a guarantee - whether the land is owned beneficially by the registered proprietors - whether the registered proprietors hold the land on trust for a family superannuation fund. MORTGAGES - mortgages and charges generally - priority of estates, debts and encumbrances - whether land purchased by the trustee of a superannuation fund - whether equitable interest claimed by the superannuation fund takes priority over an interest by way of charge created for the benefit of a creditor of a trustee.

CONTRACT - contract for sale of restaurant business on leased premises - vendor lets purchaser into leased premises between sale contract and completion - purchaser commences fit-out works without lessor's permission and before assignment of the lease from vendor to purchaser - lessor terminates vendor's lease - sale contract terminated - purchaser seeks return of deposit - vendor seeks damages for loss of a bargain - whether vendor authorised the renovation works - whether the vendor or the purchaser was responsible for the lessor's termination of the lease.

LEGAL PRACTITIONERS - negligence - immunity from suit - scope of advocate's immunity - advice given at mediation to settle - judgment entered pursuant to settlement - whether work done leading to the conduct of the case in court - whether coercion by solicitor is within the immunity - whether appropriate to deal with immunity on a summary basis

PRACTICE AND PROCEDURE - entry of judgment and orders - application of slip rule - orders referred to respondent in the singular - application to amend orders to refer to "respondents" - Uniform Civil Procedure Rules 2005 (NSW), r 36.17 PRACTICE AND PROCEDURE - costs - trial judge awarded costs to respondent for expenses incurred from delay by the appellant - whether costs order should be interfered with - application by respondent to vary the costs of the appeal - whether costs should be ordered for the notice of motion

CORPORATIONS - charges, debentures and other borrowings - security interests - registration - extension of time - where doubt as to solvency - relevance of interest of unsecured creditors - whether extension should be granted

ADMINISTRATIVE LAW - judicial review - s 86(1) Service and Execution of Process Act 1992 (Cth) - decision of magistrate that warrant issued pursuant to s 189 Corrective Services Act 1988 (Qld) was valid - warrant directed the apprehension of the applicant and conveyance to Queensland prison - whether warrant valid - whether Court of NSW has jurisdiction to determine issue of warrant constituted an abuse of process - warrant valid - no jurisdiction to consider question of abuse of process - consequential orders made

CRIMINAL LAW - EVIDENCE - previous direction that an expert agency witness was to give evidence in person - change in circumstances

FAMILY LAW - Adoption -Order dispensing with consent - Whether Korean birth parents cannot, after reasonable inquiry, be found or identified - Adoption through intervention of Korean state sponsored agency - Adoption Act 2000 (NSW), s 67(1)(a)

PLEADING - application to dismiss proceedings or strike out pleadings - where statement of claim discloses no reasonable cause of action

EVIDENCE - documentary evidence - statutory provisions relating to business records - whether document of WorkCover a 'business record' - whether representations in document are made in connection with an investigation - whether investigation must in fact lead to proceedings for exception to apply - application of s 69(3)(b) of the Evidence Act 1995 (NSW) EVIDENCE - admissibility - whether discretionary reasons for refusing to admit evidence - where evidence in the form of answers to specific questions - where witness not called - application of s 135 Evidence Act 1995 (NSW)

DEFAMATION - Costs - whether the court should order that costs be payable by the plaintiff forthwith

SUCCESSION - deceased died intestate - letters of administration were granted to the deceased's widow and three of his adult children - whether administrators should exercise their statutory power of appropriation to distribute remaining estate assets where this involves dealing with assets not readily convertible into cash possibly for their own benefit as beneficiaries - whether conflict of interest and duty as trustees - whether adjustments in distribution of estate held shares should be made to account for majority and minority holdings - whether estate shares in company should be sold for a sum obtained through independent valuation.

COSTS - whether costs should follow event - appeal from Local Court - two issues on appeal - each party partially successful - each party successful on one of the two issues

ESTOPPEL - former adjudication and matters of record or quasi of record - former adjudication - judgment inter partes - issue estoppel - parties - who are bound

LEGAL PRACTITIONERS - practising certificate - whether legal practitioner whose practising certificate is suspended can apply for a renewal - fit and proper person - practitioner facing potential insolvency - disposition of funds and assets - whether conduct dishonest - whether conduct showed reckless disregard for interests of creditors - relevance of acting on advice.

TORTS - negligence - defendants not negligent as strip lighting was illuminated -plaintiff failed to take reasonable care for her own safety - assessment of damages - no evidence as to the number of hours of care and assistance family members would have performed but for the fall and what they are now required to do because of the fall - threshold for damages referable to the care of dependants not met under s 15B of the Civil Liability Act 2002 (NSW) - no real prospects of running a profitable business but for the injury

BUILDING AND CONSTRUCTION - building contracts - Adjudication determinations - whether adjudicator's determination is void for failure to exercise the power given to him under the Building and Construction Industry Security of Payments Act - whether adjudicator abrogated power by accepting the valuation assessed by the Superintendent BUILDING AND CONSTRUCTION - Building contracts - Certification of progress claims - whether Superintendent had power to issue payment certificate at the time that he did - meaning of 'business day' where undefined in Contract - whether 'business day' means 'working day' - whether Superintendent issued payment certificate prior to last business day of the month

CRIMINAL LAW - sentence - murder - appeal against sentence - Muldrock error - standard non-parole period - re-sentencing - new sentence imposed

CRIMINAL LAW - murder trial - significant new evidence becomes known to Crown during trial of Accused - whether evidence relevant - if relevant, whether evidence ought be excluded under s.137 Evidence Act 1995 - evidence from surviving daughter of Lin family that Accused showed sexual interest in her before murders and sexually assaulted her after the murders when she resided in Accused’s house - evidence relevant to issues in trial including motive - evidence admissible and should not be excluded under s.137 - application to discharge jury given significant change in Crown case - Crown agrees that discharge appropriate - jury discharged

CRIMINAL LAW - EVIDENCE - joint application for a government agency witness to give evidence in person - evidence likely to be contentious - logistical difficulties with use of audio visual link

COSTS - whether the plaintiff should pay the costs of the defendant in relation to dismissed proceedings on the indemnity basis instead of the party/party basis.

SUCCESSION - deceased's duly executed last will was lost - whether lost will should be treated as destroyed and revoked - whether deceased therefore died intestate - whether probate of final will should be granted on terms identical to those recorded in the carbon copy of the will found amongst the deceased's possessions - doctrine of dependant relative revocation - whether doctrine has been excluded by Succession Act 2006 s 8(2) and s 15(1) - whether revocation of earlier duly executed will was conditional on replacement by a later operative will - whether earlier will can revived under the doctrine.

SUCCESSION - the applicants were the recipients of small legacies under the Will of their father - the residuary of estate was given to the defendant in the second proceedings, their sister - whether order for family provision should be made in favour of the applicants where the personal circumstances of the applicants have deteriorated dramatically since the time of the Will was made, and where the reasons stated within the Will for benefiting one child substantially more than the others are inaccurate as to the relative extent to which the deceased benefited his children throughout his lifetime. COSTS - costs amassed in the two proceedings unusually high - whether applicants' costs should be paid on party/party basis in order to reduce the extent to which residuary received by defendant in second proceedings will be reduced.

CRIMINAL LAW - EVIDENCE - examination in chief of witness - whether a police officer giving evidence should be permitted to read from his written statement - Evidence Act s 33 - whether written statement was made "soon after the occurrence of the events to which it refers"

COSTS - offer of compromise made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) - indemnity costs pursuant to r 42.15A

PROCEDURE - order seeking payment of sum paid into court to defendant - order made

JUDGMENTS AND ORDERS - application to have default judgment set aside - defendant swearing to facts which, if established at the trial, would afford a defence - whether defence raised in good faith - whether cross-examination of defendant permitted to contend that defence not raised in good faith

COSTS - plaintiff brought two proceedings which were heard concurrently - plaintiff brought first claim in Local Court - these proceedings were removed to the Supreme Court to be heard alongside second proceedings which alleged breach of copyright - proceedings considered separately for the purpose of costs - plaintiff succeeded in the first proceedings - whether defendant entitled to costs on the indemnity basis from the date of defendant's first offer of compromise where the offer did not specifically mention compromise of the defendant's cross-claim, was said to be 'unclear' by plaintiff, and arose prior to the commencement of the second proceedings - the second proceedings were dismissed - whether defendant entitled to costs on the indemnity basis where plaintiff said to have brought 'hopeless' claim in order to put defendant under pressure to settle first proceedings.

PRACTICE AND PROCEDURE - Determination of separate questions - Whether a determination of the proposed set of questions will facilitate the just, quick and cheap resolution of the proceedings - Compensation to Relatives Action - Assessment of damages detailed and complex - - Promotion of settlement unlikely - Costs of separate question significant - No reason to displace usual course - No point of general principle

PROCEDURE - civil - rectification of orders - slip rule REMEDIES - damages - calculation of pre-judgment interest