Cases and authorities

BUILDING & CONSTRUCTION - application for interlocutory relief - where structural integrity of the building threatened by soil loss - where cause of soil loss unclear - adequacy of damages - balance of convenience

PRACTICE AND PROCEDURE - interlocutory applications - application to vacate hearing date - alleged non-compliance by Registry with UCPR, r 51.24 - no material prejudice suffered - threatened application to amend - amendments not yet formulated - application to vacate opposed by respondent - application refused

PRACTICE AND PROCEDURE - interlocutory applications - application for leave to cross-examine Chinese national in support of claimed abuse of process - application refused

PRACTICE & PROCEDURE - application to stay execution of judgment - whether serious question to be tried - balance of convenience

INTERLOCUTORY RELIEF - application for injunction in respect of television broadcast - breach of contract - whether contract provided plaintiffs with editorial control.

COURTS AND JUDGES - access to court file - application by non-party for leave to search court file - where proceedings incomplete

MENTAL HEALTH - Forensic Patient - Mental Health Review Tribunal - Review of the case of a forensic patient - Application for leave to appeal from Tribunal determination - Application limited to question of law - Detention, care and treatment of forensic patient in mental health facility - Forced medication by depot injection.

REAL PROPERTY - Mortgages - Application for judicial sale - Application by purchaser of mortgagor's estate seeking specific performance of purchase contract - Negative equity at purchase price - Mortgagor bankrupt - Trustee in bankruptcy not opposed to mortgagee entry into possession and improvement of property before sale - Purchaser's proceedings against mortgagee summarily dismissed PRACTICE - Summary disposal - Orders adapted to nature of case.

SUCCESSION - Family Provision - Small Estate - Application by disabled adult son - In competition with widow of deceased - Insufficient assets to accommodate competing claims - Application dismissed.

Vexatious litigant - Application for Leave

ADMINISTRATIVE LAW - costs - application for leave to appeal from determination of Costs Review Panel - where jurisdiction vested in District Court - where application otherwise without merit - application for judicial review of decision by Manager, Costs Assessment refusing application for extension of time to apply for review by Costs Review Panel - where no basis shown to interfere with original decision - proceedings dismissed with costs

STATUTORY CONSTRUCTION - Strata Schemes Management Act 2007 - validity of meeting - failure to give notice to lot owner - insufficient notice - strict compliance necessary - appeal dismissed

RESIDENTIAL TENANCIES - notice of termination - conduct of defendant inconsistent with orders by the Court

CONTRACTS - contract for the sale of land - deposit provided by a bank deposit bond - completion date subsequently extended to accommodate a lease to a third party - validity of the deposit bond not extended - defendant not ready to complete at the completion date because of lack of financing - plaintiff terminated the contract, sold the property to a third party at a profit and sued the defendant for the deposit - whether the termination was invalid because the property was not vacant at the extended completion date and at the time of the notice to complete - whether the plaintiff's breach was waived by the defendant - whether the Court should exercise its discretion under Conveyancing Act 1919, s 55(2A) and not order the payment of the deposit. CONTRACTS - the defendant cross-claimed against the bank for the loss caused by its refusal to finance the purchase of the property - the bank unconditionally approved the loan, issued a deposit bond and sent a written offer of finance to the defendant and her husband - the offer required for the loan to be drawn within 3 months - defendant did not return the signed offer to the bank until after the deadline expired - the defendants subsequent loan application was not approved because of judgment debts discovered on the updated credit check of the defendant's husband - whether a partly written and partly oral loan agreement was entered into between the bank and the defendant and her husband - whether the bank was entitled to refuse to provide finance because of the result of the credit check.

ENVIRONMENT AND PLANNING - whether lodgement of development application was required for reinstatement of house to "as was" condition - whether, and extent to which, lodgement of development application necessitated upgrade of non-damaged components of the house. ESTOPPEL - estoppel by convention - whether parties adopted common assumptions inconsistent with the terms of the insurance policy - whether insurer estopped from denying assessment of liability for reasonable costs of reinstatement by reference to various reports - whether insurer estopped from relying on terms of the policy in respect of costs of alternative accommodation. INSURANCE - home and contents policy - construction of policy - whether policy terms varied by parties' communications - assessment of reasonable costs of reinstatement of fire damaged house - whether insurer or insured (or both) breached duty of utmost good faith.

EQUITY - equitable remedies - injunctions - interlocutory injunctions - whether an interlocutory injunction should be granted pending outcome of further proceedings - whether defendant is entitled to demand Bank Guarantee for alleged breach of lease by plaintiff - whether alleged or actual breach of lease is required - construction of lease agreement - serious question on determination of breach of lease to be tried in further proceedings - balance of convenience - whether damages an adequate remedy - likely plaintiff would suffer financial harm that would be difficult to quantify - balance of convenience favoured granting of interlocutory injunction.

CRIMINAL LAW - conviction appeal - from judge alone trial - supply a commercial quantity of methylamphetamine - whether trial judge erred in finding independent evidence corroborative of evidence of key witness involved in criminal transaction - whether trial judge erred in failing to give warning - that corroboration was required before evidence of witness could be acted upon - Markuleski direction - whether reasons inadequate - whether conduct of trial judge rendered the trial unfair - alleged excessive intervention by trial judge in cross examination by defence counsel - critical comments made about counsel - defence counsel ultimately dismissed and withdrew from proceedings - whether verdict unreasonable and unsupported by the evidence. CRIMINAL LAW - sentence appeal - application for leave - whether trial judge erred in approach to standard no parole period - whether insufficient weight given to mental health and other health issues of appellant - whether sentence manifestly excessive.

TORTS - negligence - personal injury - plaintiff injured by slipping on travelator after stepping on floor which had been mopped immediately beforehand - whether risk "obvious" within meaning of Civil Liability Act 2002, s 5F - whether cleaner negligent in mopping relevant area during opening hours - whether occupier of premises should be granted an extension of time to file a notice of appeal - whether plaintiff would be irremediably prejudiced by grant of extension of time due to operation of Workers Compensation Act 1987, s 151Z

SUCCESSION - wills, probate and administration - will of elderly testator made and executed in circumstances arousing suspicion - whether primary judge erred in concluding testator knew and approved of contents of will

COSTS - where proceedings commenced in this Court transferred to the Supreme of Queensland on the application of the defendants

COSTS - where proceedings commenced in this Court transferred to the Supreme of Queensland on the application of the defendants

DEED OF COMPANY ARRANGEMENT - whether resolution of creditors executing deed of company arrangement be set aside - whether the proposed resolution of creditors unreasonably prejudices the interests of creditors - whether company should be wound up - matters relevant to the making of a winding up order.

PROCEDURE - miscellaneous procedural matters - application to have hearing date vacated - where proceedings were commenced over seven years ago - whether vacation of hearing date would facilitate the just, quick, and cheap resolution of the real issue in dispute in the proceedings.

CORPORATIONS - application under (Cth) Corporations Act 2001 s 459H for order setting aside statutory demand - whether genuine dispute - application dismissed.

CRIMINAL LAW - appeal - leave sought for extension of time to lodge appeal - leave granted - importation of border-controlled drug - whether error in assessment of discount on sentence - whether applicant entitled to significant discount for assistance - appeal dismissed

CRIME - appeal against conviction - where appellant acquitted during trial on four counts of sexual assault and then convicted on remaining five counts - whether verdicts unreasonable - whether evidence of an alleged admission to the complainant's husband should have been excluded under s 137 of the Evidence Act - whether evidence of statements by mother of complainant excluded by consent ought to have been admitted

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - "additional relevant information" - whether "additional relevant information" capable of having material effect on outcome of previous assessment - whether "additional relevant information" a jurisdictional fact - whether proper officer's decision affected by jurisdictional error or error of law on face of record.

CONTRACT - assignment of debt - debt owed by the respondents - respondents borrowed from manager of managed investment scheme in order to invest in scheme - where appellant was assignee of that debt pursuant to a chain of assignments and sued respondents for debt - whether debt validly assigned to appellant - whether first assignment valid - whether directors of assignor company and assignee company under first assignment validly bound their respective companies under first assignment - where neither board of directors approved transaction - whether absence of directors' authority to bind assignor and assignee companies cured by ratification - whether ratification pleaded TRADE PRACTICES ACT - misleading and deceptive conduct - prospectus for scheme involving orchards - whether representation made that funds invested by investors, which investors were to borrow from scheme manager, would be used for purpose of orchard expenses - whether, if made, that representation misleading or deceptive - whether scheme involved a "round robin" transaction - whether, if round robin, representation made and misleading and deceptive TRADE PRACTICES ACT - where limitation period in s 87(1CA) had expired - whether that limitation period is a necessary incident or aspect of the underlying right, under s 87(1A), to damages for misleading and deceptive conduct, such that that right, and not merely the availability of the remedy for that right, is extinguished by effluxion of time EQUITY - estoppel - whether parties to first assignment estopped from denying validity of first assignment as an equitable assignment - whether appellant, as privy of original creditor that obtained debt pursuant to chain of assignment, entitled to assert that estoppel against respondents - whether a privy by contract of a party that is entitled to enforce a conventional estoppel is itself bound by it EQUITY - whether breach of fiduciary duty by scheme manager in relation to misrepresentation in respect of round robin - whether, if breach of fiduciary duty, there should be rescission of loan agreement - where loan agreement part of suite of arrangements entered into by investor borrowers in relation to scheme - whether rescission would require restitution of what investor borrowers gained from loan agreement EQUITY - equitable set-off - whether either misleading and deceptive conduct claim or breach of fiduciary duty claim constituted basis for equitable set-off defence to respondents' obligation to pay debt - whether either claim impeached appellant's title to sue respondents, in that respondents' claim would not exist but for the breaches founding either claim

NEGLIGENCE - hotel patron assaulted across road from licensed premises by employee of hotel - employee not a security guard - evidence unclear as to whether assailant crossed road to intervene in dispute involving patron - non-intervention by employees of hotel and employees of security company - whether evidence sufficient to establish breach of duty APPEALS - appellate review of findings of fact - inferences to be drawn from CCTV footage

DEFAMATION - defences - substantial truth - contextual truth - effect of finding one more imputations substantially true - whether additional imputation causes further injury to reputation when one or more imputation substantially true - weighing particular bases of imputations against bases of other imputations - Defamation Act 1974 (NSW), ss 12, 16 DEFAMATION - defences - substantial truth - where evaluative test required the proper test is "ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs" - test "right thinking" people rejected - Radio 2UE Sydney Pty Ltd v Chesterton applied - when truth depends on simple fact-finding and when evaluative judgment required WORDS & PHRASES - "incites"

TORTS - negligence - person detained as mentally ill person under Mental Health Act 1990 - discharged next day into care of friend to be driven home from Taree to Victoria - s 35(3) Mental Health Act 1990 required that a mentally ill person not be detained if no longer mentally ill or care of a less restrictive kind is available and appropriate - during the trip to Victoria the person had a psychotic episode during which he killed his friend - family of deceased claimed damages for mental harm due to shock of learning of death of the deceased - whether duty of care owed by Hospital to deceased, and thence to family - whether such a duty of care inconsistent with requirements of the Mental Health Act 1990 - whether such a duty of care would create indeterminate liability - Hunter Area Health Service v Presland 63 NSWLR 22 discussed - whether Hospital negligent in making discharge decision - whether relevant risk of harm was the person killing deceased or causing some lesser harm to him - s 5B Civil Liability Act 2002 - whether conduct of Hospital psychiatrist conformed with a widely accepted 'practice' for the purposes of s 5O Civil Liability Act - special statutory power under s 43A Civil Liability Act - whether there was an exercise or failure to exercise a power conferred by s 35(3) Mental Health Act - whether Hospital's negligence caused deceased's death - s 5D Civil Liability Act - whether "appropriate for the scope of the negligent person's liability to extend to the harm so caused" PROFESSIONS AND TRADES - negligence - whether conduct of Hospital psychiatrist conformed with a widely accepted 'practice' for the purposes of s 5O Civil Liability Act

CONSTITUTIONAL LAW - whether inconsistency between State and Commonwealth laws - State Act purporting to bind the Commonwealth - State Act purporting to subject Commonwealth to jurisdiction of State tribunal PRIVACY - operation of State legislation - whether Commonwealth bound - Health Records and Information Privacy Act 2002 (NSW), s 12 - Privacy and Personal Information Protection Act 1998 (NSW) STATUTORY INTERPRETATION - principles - presumption that Crown not bound by statute - general presumption rebutted by specific provision - whether general provision that Act binds Crown not only in right of enacting State but in all other capacities indicates intention to bind Commonwealth - consideration of specific provisions required - provisions to be read in statutory context WORDS & PHRASES - "binds the Crown in right of New South Wales and also, in so far as the legislative power of Parliament permits, the Crown in all its other capacities" - Health Records and Information Privacy Act 2002 (NSW), s 12

PROCEDURE - costs - security for costs - where appellant impecunious - where appellant only attended the final hearing for a limited purpose - where appellant failed to comply with the Court's directions - where appeal grounds are weak - whether special circumstances shown PROCEDURE - costs - security for costs - where appellant is currently residing in the United States - whether the appellant is ordinarily resident outside Australia PROCEDURE - costs - security for costs - quantum - where respondent's assessment is challenged by the appellant - where contractual provision provides for reasonable expenses

PROCEDURE - costs - general rule costs follow the event - where appellants seek costs of the appeal, costs of the application and costs at first instance - where appellants seek an order that the respondent personally bear his own costs of the appeal - where delay in making a claim - whether successful party should be deprived of the costs relating to an issue on which the successful party lost - whether a Deed of Company Arrangement may have binding force independently of the Corporations Act 2001

TAXES AND DUTIES - payroll tax - liability to taxation - Payroll Tax Act 2007 - Payroll Tax Act 1971 - contractor provisions - whether contractors engaged under a "relevant contract" - whether appellant was supplied services ancillary to the conveyance of goods by means of a vehicle provided by the person conveying them - whether apportionment provisions of the Payroll Tax Acts should apply

FAMILY LAW AND CHILD WELFARE - Child welfare under State legislation - Proceedings relating to care and protection - Application for allocation of parental responsibility determined by Children's Court - Appeal to District Court - Appeal dismissed and order of Children's Court allocating parental responsibility to the Minister confirmed - Application by father for judicial review of decision of District Court on appeal - JUDICIAL REVIEW - Application for order in the nature of certiorari in respect of District Court decision on appeal - Whether jurisdictional error - Whether error of law on the face of the record - Whether court correctly construed and applied various provisions of the Children and Young Persons (Care and Protection) Act 1998.

TRUSTS - discretionary trust - objects of discretionary power - nature of interest TRUSTS - discretionary trust - appointor - powers vis à vis trustee - control and influence - whether appointment necessary TRUSTS - discretionary trust - standing of object of discretionary power to bring claim of breach of fiduciary duty owed to trustee - special circumstances DECLARATIONS - width of power to grant declarations - genuine dispute - real not theoretical issue - wide and discretionary power - 'interest' of object of discretionary power sufficient to justify declaration SOLICITORS - conflict of interest and duty - fiduciary duty as solicitor - fiduciary duty as appointor under trust deed - realistic possibility of conflict with 'interest' under discretionary trust ESTOPPEL - assumption not reasonable - no reasonable reliance - no sound factual foundation for estoppel

JUDGMENTS - stay on execution - costs assessment - application for review - no extension of time sought - stay given on condition that extension sought - no application for extension - stay lifted

APPEAL - appeal from decision of Local Court Magistrate pursuant to s59(2) Crimes (Appeal and Review) Act 2001 - offence of "assault with act of indecency" contrary to s61L Crimes Act 1900 - whether adequate reasons given - no express finding as to whether complainant consented to defendant's actions - whether recklessness as well as specific intent should have been considered - no express finding as to intent - matter remitted to Local Court to be heard according to law.

ADMINISTRATIVE LAW - judicial review - appeal from decision of Consumer, Trader & Tenancy Tribunal - part of proceedings held in absence of party - whether plaintiff denied procedural fairness

DEEDS - Settlement - Settlement of action by deed - Four parties - Where one party had not executed deed when first party sought to withdraw - Whether deed binding on those who had executed it.

PROCEDURE - costs - costs of notice of motion - indemnity costs orders sought - departing from the general rule - not established - defendant to bear costs of notice of motion

ADMINISTRATIVE LAW - exercise of the Court's supervisory jurisdiction - where s 69 of Supreme Court Act is engaged -- NEGLIGENCE - motor accidents compensation scheme - where assessment by claims assessor has been made under s 94 of Motor Accidents Compensation Act 1999 - where applicant seeks whole of certificate pursuant to s 94 to be set aside or dismissed -has been considered by cost assessor - no error in award of damages for lost earning capacity by assessor - no general point of principle

CONSTRUCTION OF CLAUSE - whether Notice of Default accelerating repayment of loan is valid - whether an event of default under loan agreement has occurred - construction of material and adverse change provision - whether the existence of a material and adverse change had to be assessed objectively - events that could constitute a material and adverse change.

EQUITY - subrogation - plaintiffs and defendant co-sureties - plaintiffs paid more than their share of liability - plaintiffs entitled to contribution from defendant - plaintiffs seek to be subrogated to security given by defendant to creditor - security given by defendant already discharged by settlement between defendant and creditor prior to plaintiffs' payment - whether security kept alive in equity for plaintiffs' benefit - Law Reform (Miscellaneous Provisions) Act 1965 s 3

COSTS - transfer of proceedings to Family Court of Australia - no point of principle

LEGAL PRACTITIONERS - decision by the Council of the Law Society of NSW to suspend practicing certificate - allegations of dishonesty - whether necessary in the public interest to suspend the practicing certificate - whether allegations made out

CRIMINAL LAW - Murder - Sentence following late plea of guilty - Where offender heavily intoxicated at the time of the offending - Whether offending aggravated by the fact that it took place in the home shared by the offender and the victim - Whether a finding of special circumstances warranted