Cases and authorities

REAL PROPERTY - possession of land - application for stay of writ - application by occupier - application on basis of need for time to re-locate business - occupier served but did not apply to be joined as defendant - occupier commences to operate business after being served with notice and Statement of Claim - occupier knew of consent orders regarding date of execution of writ - occupier had no right to be in occupation of land - application made the day before scheduled eviction - stay refused.

PROCEDURE - costs - whether there should be any departure from the usual rule as to costs - whether successful party should be deprived of a costs order - whether indemnity costs order should be made against unsuccessful party and non-party - indemnity costs orders made PROCEDURE - costs - motion seeking order against non-party - leave granted EVIDENCE - tender of business records - question of authenticity - authenticity not established - s 69 of the Evidence Act 1995 - relevance - s 70 of Civil Procedure Act 2005 - relevance - documents not admissible

PROCEDURE - costs - notices of motion - orders sought under s 98 of the Civil Procedure Act 2005 - costs in relation to application for leave under Vexatious Proceedings Act 2008 to institute proceedings against medical practitioner - order for gross costs orders - costs orders made

PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - No prima facie basis disclosed - No matter of general principle

SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as the spouse of the deceased - Long marriage - The Defendants are two of four children of the deceased by her first marriage, and the executors to whom Probate granted - The whole estate left to the four children of the deceased by her first marriage - No dispute as to Plaintiff's eligibility but dispute whether to make a family provision order - If order for provision made, quantum of provision that should be made

TORTS - negligence - motor accidents cases - where worker injured when car struck by another vehicle - details of other driver and vehicle lost - whether vehicle unidentified for purposes of s 34 Motor Accidents Compensation Act 1999 - whether due inquiry and search established WORKERS COMPENSATION - Employer's right of indemnity against third party for compensation paid - s 151Z(1)(d) Workers Compensation Act 1987 - where worker injured when car struck by another vehicle - details of other driver and vehicle lost - whether worker or employer obliged to undertake due inquiry and search for purposes of s 34 Motor Accidents Compensation Act 1999 - whether due inquiry and search established DAMAGES - notional assessment of economic loss - where primary judge failed to make allowance for past economic loss

BANKING AND FINANCE - banker and customer - loan facilities to property development companies - guarantees and mortgages to secure corporate debt - whether guarantor received independent legal and financial advice - whether Bank misled customer as to the availability of funds - whether Bank acted without authority in clearing customers' excesses - whether alleged misleading representations caused a funding crisis which caused cessation of building work and financial loss in the sale of property development - whether alleged misleading representations caused loss in that properties would have been sold in more favourable market conditions TRADE PRACTICES -- misleading or deceptive conduct - Trade Practices Act 1975 - Fair Trading Act 1987 - Australian Securities and Investments Commission Act 2001 - whether representations by Bank in contravention of CONTRACT - Contracts Review Act 1980 - whether deed liable to be set aside - whether deed is an "unjust" contract within the meaning of the Contracts Review Act 1980 - whether Bank engaged in unconscionable conduct or exerted economic duress in connection with the deed CONTRACT - terms and conditions - deed of settlement and release - proper construction of deed - whether terms of deed are limited to "known" causes of action at the time of settlement - whether causes of action were sufficiently "known" in any case EQUITY - whether guarantee and deed ought to be set aside - undue influence EQUITY -- whether guarantee ought to be set aside - unconscionable conduct -- husband and wife - lack of independent advice EQUITY - trusts - whether properties held on constructive trust REMEDIES - statutory remedies - Trade Practices Act 1975 - damages - misleading or deceptive conduct - unconscionable conduct REMEDIES - statutory remedies - Contracts Review Act 1980 - damages - unjust contract - whether guarantee and deed are unjust DAMAGES - personal injuries - non-economic loss - anxiety and distress

PROCEDURE - where a party seeks to raise new matters immediately prior to commencement of hearing - where orders previously made established a timetable for evidence - whether hearing should be adjourned or split - whether allowing new matters to be raised results in prejudice to party.

EVIDENCE - whether letter written in connection with an attempt to negotiate a settlement of the dispute - held to be inadmissible - no point of general principle.

EVIDENCE - Professional Negligence List - Application of Practice Note SC CL 7 - expert evidence to be given concurrently - no agreement on issues to be considered by experts - whether proposed questions for experts appropriate PROCEDURE - issues to be considered by experts to be determined by the Court - speedy determination of issues - Application of ss 58 and 61 of the Civil Procedure Act (2005).

PROCEDURAL FAIRNESS - University student - allegation of serious misconduct - University policy dealing with misconduct includes express obligation to afford procedural fairness - jurisdiction of Court to review University's decisions - whether decision to review allegation to committee for hearing attracts procedural fairness - whether decision to suspend student pending hearing attracts procedural fairness - discretion to refuse to intervene - form of relief - declaration - injunction.

POLICE - rights powers and duties - public assembly - right of Commissioner to apply to the Court - notice of intention to hold a public assembly not served seven days or more before proposed assembly date - no jurisdiction to file summons to prevent assembly

DEFAMATION - imputations - whether capable of being conveyed - where publisher claims matter complained of incapable of being construed as other than a joke - objections to form of imputations - difficulty of pleading imputations in cases of denigration or ridicule

EVIDENCE - whether letter written in connection with an attempt to negotiate a settlement of the dispute - Held to be inadmissible - no point of general principle

ADMINISTRATIVE LAW - judicial review - injury to right eye - pre-existing condition - complications from surgery - nature of injury determined by arbitrator - extent of WPI due to injury

PROCEDURE - COSTS - Departing from general rule - Whether indemnity costs should be paid by Plaintiff to the Defendants after the date of the making of Calderbank offer which was allowed to lapse by the Plaintiff - Reasonableness of the time for acceptance of the offer - Whether Plaintiff unreasonably failed to accept Defendants' offer - Overall justice of the case

COSTS - whether exception to general rule that costs follow event - where questions of public interest - where separate questions removed to Court of Appeal on stated case - where questions of significant continuing interest to plaintiff insurers - where other parties shared some measure of success - nature of parties - where insurers large and recurrent litigants PROCEDURE - civil - judgments and orders - final orders - where multiple questions removed to Court of Appeal on stated case answered but single answer determinative

PRACTICE AND PROCEDURE - civil - judgments and orders - remitter from Court of Appeal to assess damages for lost profits - ambit of remitter DAMAGES - torts - negligence - lost profits - whether there has been a loss of a chance or opportunity of real or not negligible value to derive profits from certain commercial relationships - appropriate discount to reflect vicissitudes

EVIDENCE- exceptions to hearsay rule when witness unavailable - witness refuses to give evidence

PROCEDURE - summary dismissal of proceedings - plaintiff improperly pleaded case - pleadings disclose no reasonable cause of action for relief sought - pleadings contain irrelevant and scandalous allegations - whether proceedings should be dismissed or statement of claim ought to be struck out with leave to replead

PRACTICE AND PROCEDURE - notice to produce - urgent hearing - no question of principle.

POSSESSION - no question of principle.

COSTS - motion resolved - only outstanding question was costs - no question of principle.

PROCEDURE - possession of property - consent orders made

COSTS - where plaintiff successful on appeal from decision of Magistrate - where proceedings remitted for further determination by the Magistrate - whether plaintiff entitled to the entirety of the costs of the appeal - whether the plaintiff should have an order made in its favour that the defendant pay the costs of the Local Court proceedings as well as the costs of the appeal.

INSURANCE- construction of s 601AG Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE - Application for approval of compromise by tutor of the Plaintiff - Plaintiff appears in person and opposes need for tutor and approval of terms of compromise - Whether Plaintiff a person under a legal incapacity - Whether tutor otherwise necessary - Whether to approve terms of compromise

CRIMINAL LAW - offences - people smuggling - s 233C Migration Act - appellant crew on boat bound for Ashmore Reef from Indonesia with fifty-two passengers - trial judge directed that the necessary intention was that by steering to Ashmore Reef the appellant was facilitating the entry of the passengers into Australia - whether necessary to establish that the immediate destination was part of Australia or only that the ultimate destination was Australia - mention of particular destination does not create additional element of offence - evidence established knowledge that ultimate destination was Australia - no misdirection

CRIMINAL LAW - sentence appeal - reckless wounding and threatening to use an offensive weapon - appellant a housemate of victims - offences committed in shared premises - sentencing judge considered the location of crime at a "home" as an aggravating feature of the offence - s 21A(2)(eb) Crimes (Sentencing Procedure) Act considered - special geographic vulnerability of victims of domestic violence - no overstatement of objective seriousness - relevant matters in consideration of circumstances of offending

CRIMINAL APPEAL - sentence appeal - aggravated break and enter and commit serious indictable offence of intimidation - context of domestic violence considered an aggravating feature on sentence - no double counting despite offence of intimidation arising from certain features of domestic relationship - lack of planning or premeditation not significant mitigating feature - significance of committing offence while on conditional liberty - sentence not manifestly excessive

CRIMINAL LAW - application for leave to appeal against sentence - sentence affected by mathematical error - position not disputed by Crown - multiple firearms offences - whether error in completely cumulative sentences with regard to same firearm - consequential changes required - whether sentence manifestly excessive - applicant resentenced

EVIDENCE - privilege - waiver - whether submissions opposing application for leave capable of waiving privilege - whether submissions disclosed substance of advice - motions for access dismissed

DAMAGES - assessment of damages - personal injury - non-economic loss - whether trial judge assessed on wrong factual basis - no question of principle DAMAGES - assessment of damages - personal injury - economic loss - whether trial judge correctly concluded appellant's diminished earning capacity would not be productive of economic loss - no question of principle

COSTS - no question of principle.

PROCEDURE - costs - parties settled except as to costs - substantive proceedings concerned application for appointment of trustees for sale of land pursuant to s 66G of the Conveyancing Act 1919 - appropriate costs order when settlement effectively a surrender by one party - appropriate form of orders when one party has order under s 66I but has to account for costs of both parties that would be deducted from full purchase price

PROCEDURE - judgments and orders - amending, varying and setting aside - application for order setting aside order previously made determining administrators' remuneration - where judgment made in absence of party - whether service established.

WRIT OF POSSESSION - application for stay - no notice provided to plaintiff - no question of principle.

PROCEEDS OF CRIME - no question of principle.

CRIMINAL LAW - Accused charged with murder and other offences - earlier finding of unfitness to be tried - referral to Mental Health Review Tribunal - Tribunal determines that Accused fit to be tried - referral back to Court - inquiry under s.29 Mental Health (Forensic Provisions) Act 1990 - Accused unfit to be tried - Accused had been detained as inmate or forensic patient for more than 12 months - direction that special hearing proceed under s.30(2)(a) of the Act

CIVIL PROCEDURE - costs - follow the event and may be awarded for a discrete stage of ongoing proceedings STATUTORY CONSTRUCTION - Strata Schemes Management Act - Section 229 - meaning of 'brought by owners corporation against a lot owner' - not applicable on the particular facts

TRADE AND COMMERCE - consumer protection - misleading or deceptive conduct - recommendation by financial adviser of investments in agricultural managed investment schemes - implicit representations by financial adviser that investments were suitable for the investor's personal circumstances - investments obviously not suitable for particular investor - reliance by investor upon advice - schemes ultimately failed - reliance upon advice causative of loss

REAL PROPERTY - possession sought by Trustees of deceased estate - second defence filed by occupier - matters raised relate to concerns with administration of estate - no defence to claim for possession - defence struck out - plaintiffs entitled to judgment

REAL PROPERTY - mortgages and securities - mortgages - remedies of mortgagee - judicial sale COSTS - wasted costs - not to be allowed - affidavits did not comply with UCPR - costs not to be allowed

TORTS - negligence - landslip at building site - damage caused to sewer main owned by the plaintiff - whether geotechnical engineer, occupiers, principal contractor or excavator liable - apportionable claim covered by Part 4 Civil Liability Act 2002 (NSW) - whether local council is a concurrent wrongdoer under s35(3) Civil Liability Act 2002 (NSW) REAL PROPERTY - statutory covenant - whether second and third defendants liable for breach of statutory covenant created by s44 Sydney Water Act 1994 (NSW) - whether claim is an apportionable claim

CRIMINAL LAW - appeal - application for review of conviction for murder under Part 7 Crimes (Appeal and Review) Act 2001 (NSW)

SUPPRESSION ORDER - no question of principle.

COSTS - where plaintiff successful on appeal from decision of Magistrate - where second defendant successful on cross -appeal - where proceedings remitted for further determination by the Magistrate - whether plaintiff entitled to the entirety of the costs of the appeal - whether the costs of the proceedings in the Local Court should follow the event of the further hearing

PRACTICE AND PROCEDURE - application for stay of proceedings in District Court pending determination of summons seeking leave to appeal - applicable test - stay refused

APPEAL AND NEW TRIAL - appeal - practice and procedure - self-represented litigant - procedural fairness - whether primary judge erred in the exercise of his discretion in rejecting evidence and refusing an adjournment application CONTRACTS - building, engineering and related contracts - remuneration - joint venture - quantum meruit - whether party to the deed entitled to recover for services rendered

CONTRACT - construction - assignment of rights - whether party to contract (obligee) can grant charge over its contractual rights to third party without consent of other contracting party (obligor) - where contract stipulates that rights under the agreement "cannot be assigned, encumbered or otherwise dealt with... without the prior consent of the other parties (not to be unreasonably withheld)" - whether unreasonable withholding of consent constitutes breach of contract or affirmative grant of consent CONTRACT - assignment of rights - whether refusal of obligor to consent to grant of charge over assignor's contractual rights unreasonable - obligor protected from suit by assignor by order barring further proceedings unless lump sum costs order paid - whether purported assignee willing to pay costs - whether assignee bound by barring order - whether identity and solvency of proposed assignee legitimate considerations - where contractual relationship continues only for purpose of resolving disputes under contract - respondents concerned with legal and financial status of purported assignee - whether these matters extraneous to agreement EVIDENCE - proof - onus - which party bears onus of proof to establish unreasonableness of refusal to consent to charge over contractual rights - where obligor commenced proceedings for declaratory relief pleading consent to charge reasonably withheld - absence of consent not contested - whether obligor needed to justify refusal of consent - not established whether unreasonable withholding of consent discharged need to obtain consent - if not, obligor entitled to relief - if so, assignees required to prove underlying factual basis, being unreasonableness of withholding consent EVIDENCE - admissibility - judicial discretion to exclude or limit use of evidence - letters sent by obligors articulating basis for refusing consent - whether letters unfairly prejudicial, misleading or confusing - whether letters should be limited to proving refusal of consent - whether letters could be used to prove subjective intention of obligor - where assignees denied opportunity to cross-examine respondents' witnesses - whether absence of opportunity to cross-examine constitutes unfair prejudice - Evidence Act 1995 (NSW), s 136