Cases and authorities

EQUITY - mistake and fraud TORTS - conversion - drawing of cheques induced by fraud - cheques dealt with in a manner repugnant to true owner's right of possession REMEDIES - trust - stolen funds held on trust - proprietary remedy - charge over asset purchased with stolen money

LANDLORD AND TENANT - Distinction Between Lease and Licence - whether oral agreement a lease - whether rent paid - mortgagee allows short term licence - whether conditional upon completion of contract for sale - receivers and managers take possession without notice - preliminary question whether a right of occupancy - no principles involved

PROCEDURE - costs - general rule costs follow the event - apportionment of costs between unsuccessful plaintiffs - commonality of evidence and issues in the cases for each plaintiff - PROCEUDRE - costs - power to order interest on costs - Civil Procedure Act 2005 s 101(4) - circumstances when appropriate to order

CRIMINAL LAW - sentence - murder - motive - worst case

TORTS - negligence - work place injury - whether independent contractor exercised reasonable care in the performance of its work - whether employer in breach of non-delegable duty by reason of negligent act or omission of independent contractor - apportionment between tortfeasors - verdict for the plaintiff

CRIMINAL LAW - sentence - murder - offender with long-standing paranoid psychosis and below average intelligence - chance meeting with victim - recent history of interfamily enmity and violence including murder of offender's brother - where offender's mental illness critical to assessment of proper sentence - where offender in segregation - onerous conditions of incarceration

ADMINISTRATIVE LAW - statutory construction - whether investigation conducted and warning issued by the Health Care Complaints Commission was ultra vires - construction of the Health Care Complaints Act 1993 - meaning of "complaint" - meaning of "affects" - whether an individual client's care has actually been affected - jurisdictional fact - entitlement to certiorari - whether a discernible legal right affected

CONTRACT - unjust and unfair - relevant enquiry for the purposes of the Contracts Review Act - whether the contract is unjust in all the circumstances - whether lender made sufficient enquiries concerning ability of mortgagees to service debt - enforceability of mortgage bearing forged signatures PRACTICE AND PROCEDURE - evidence credibility - inferences drawn from failure to call witnesses - whether a witness is in another party's camp

CRIMINAL LAW - Sentence - Manslaughter - Random and sustained attack on stranger in street - Fatal brain injury when head struck footpath during tackle - Intoxicated offender - Likely blood alcohol concentration of 0.3 - No memory of attack - Conduct racially motivated - Vulnerable elderly peripatetic victim - Attack unplanned - No significant prior convictions - Previous good character - Remorse - Good prospects of rehabilitation - Alcohol problems being addressed - Strong family support - Employment prospects - Discount for guilty plea - Special circumstances for varying statutory ratio for non-parole period

Criminal law - application of s 32 of the Mental Health (Forensic Provisions) 1990 - no issue of principle

CONTRACT - construction - construction of an insuring clause - meaning of "in connection with the Insured's business" - construction by reference to external factors - construction of an exclusion clause in a contract of insurance - meaning of "criminal act" - whether the contract of insurance excludes negligent criminal acts - maxims of construction - the contra proferentem rule - implied retainer TORT - negligence - negligent misstatement - negligent misrepresentation - duty of care - scope of an insurance broker's duties under an implied retainer - standard of care - standard of care expected of a reasonably competent insurance broker - breach of duty PRACTICE AND PROCEDURE - pleadings - whether cross-claimants ought to be constrained by their pleadings - sufficiency of pleaded case in all the circumstances - undesirability of deciding substantive matter on pleading points - distinction between negligent misstatement and negligent representation

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Surrounding Circumstances - Intention to be Bound - Agreement to Execute more Formal Agreement - More Formal and Additional Terms

PRACTICE AND PROCEDURE - default judgment - whether judgment given irregularly - whether plaintiff's claim was for a debt or liquidated sum - whether affidavit in support stated the source of the deponent's knowledge - whether plaintiff entitled to retain portion of the default judgment

ESTOPPEL - equitable proprietary estoppel - monies advanced by the respondent and her husband to the appellant for development of residential property - oral assurances that following completion of development, appellant would repay money and transfer part of property at cost - whether expectation of the respondent was sufficient to give rise to an equitable estoppel REMEDIES - equitable proprietary estoppel - whether respondent entitled to relief by way of equitable charge - interest - whether primary judge erred in awarding compound interest on monies secured by charge

DAMAGES - motor vehicle accident - pre-existing degenerative spinal condition - whether primary Judge correct to find that the consequences of the pre-existing condition would have "subsumed" the consequences of the accident within eight years - whether primary Judge correct to find no causal relationship between accident and further degeneration of spinal condition.

EVIDENCE - admissibility - expert opinion - whether expert report shows conclusions reached were based on specialised knowledge - whether any reasoning process disclosed - whether in any event report should be rejected on discretionary grounds.

PRACTICE AND PROCEDURE - Form of final orders to give effect to the judgment in the proceedings.

PRACTICE & PROCEDURE - defendants' application to read affidavit - hearsay - whether person "unavailable" for the purposes of Evidence Act 1995 s 63 - whether time during which s 67 notice should be extended

EQUITY - proprietary estoppel - promise to transfer property once subdivision of land carried out - no separate promise to subdivide the land - where property was held jointly with wife who was not a party to the promises (or the proceedings) - whether reliance in fact and whether any such reliance in the circumstances was objectively reasonable - whether any detriment established - promisee lived on property - promisee carried out some work on the property - promisee forewent opportunity to seek family law settlement with promisor's encouragement - whether any unconscionability on part of promisor resiling from promise - where promise contingent on conditions yet to be fulfilled - HELD - reliance not objectively reasonable as promise predicated on conditions some of which are outside of promisor's control - only detrimental reliance established was foregone opportunity to seek family law settlement - no unconscionability as time for performance of promise yet to arrive

Costs - UCPR 20.26 - whether offer "exclusive of costs" - whether particulars sought - whether sufficient particulars provided - whether offer could be treated as a Calderbank offer.

EQUITY - guardianship - application in parens patriae jurisdiction to set aside orders of the Administrative Decisions Tribunal - inherent jurisdiction of the court with respect to guardianship of persons preserved by s 8 of the Guardianship Act 1987 - court will only intervene with statutory regime in exceptional circumstances

COSTS - sought in summons - overlooked by counsel - Suitor's Fund application rejected - whether party can seek costs order.

ESTATE - Succession Act 2006 - protective trust - daughter of deceased - currently receiving weekly income from the defendant - claim for entitlement of $1,000,000.00 lump sum - disabled son

PRACTICE AND PROCEDURE - Discovery - Confidentiality - Application for release from confidentiality undertakings.

COSTS

EQUITY – trusts – trustees – application to court for judicial advice – purpose of s 63, Trustee Act 1925 (NSW) – advice sought by the trustee in effect seeks determination of the key issues in dispute with Commissioner of Taxation under Income Tax Assessment Act 1936 (Cth) – determination of those questions inappropriate for judicial advice under Trustee Act 1925 (NSW) – additional reasons for non-exercise of the discretion considered

PRACTICE AND PROCEDURE - Costs - Security for costs - whether Plaintiffs "ordinarily resident" in Australia - Whether Court's inherent jurisdiction to require security for costs should be exercised - circumstances in which proceedings will be struck out.

PROCEDURE - notice of motion - order for summary judgment - motion dismissed - costs

REAL PROPERTY - Torrens title - caveats against dealings - building contract -whether builder has caveatable interest - whether express right void under Home Building Act -unconscionable dealing - whether equitable lien - form of caveat - serious question to be tried.

Criminal law - sentencing - drug supply - ecstasy - indictable quantity

CRIMINAL LAW - leave to appeal against interlocutory order - public interest immunity - application for production of a document disclosing confidential police informer - balancing exercise - common law applied - whether disclosure of identity of informer would assist accused in defence - relevance of potential consequences to informer if identity disclosed - claim to immunity from production upheld

PROCEDURE - costs - departing from the general rule - inducement to bring claim and flawed understanding of the law - notice given of the correct position - departure from general rule not warranted PROCEDURE - costs - departing from the general rule - unremunerated work done on behalf of a trust not an appropriate consideration PROCEDURE - costs - departing from the general rule - order for costs on an indemnity basis from date of offer of compromise

EQUITY - trusts and trustees - death of trustees - purported appointment of new trustees - appointment invalid EQUITY - trusts and trustees - application to court for judicial advice pursuant to Trustee Act 1925 must be by a trustee REAL PROPERTY - torrens title - indefeasibility of title cannot validate an invalid appointment of trustee

CORPORATIONS - winding up - Corporations Act 2001 (Cth) ss 461(1)(e) and (f) - a vehicle established to operate a franchise has ceased to trade and is insolvent - winding up order made - no issue of principle

CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers - identification and examination of the person - Crimes (Forensic Procedure) Act 2000 - further application for forensic procedure - additional information that justifies the making of a further application

CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers - identification and examination of the person - Crimes (Forensic Procedure) Act 2000 s 24 - reasonable grounds to believe that the suspect has committed an offence - evidence tending to confirm or disprove that the suspect has committed the offence - evidence with potential to prove an element of the offence - APPEAL AND NEW TRIAL - Local Courts - appeal to Supreme Court - duty of magistrate to give reasons

CRIMINAL LAW - sentencing - accessory after the fact to murder - offender in fear of her safety from violent co-offender - period in custody served on remand - sentenced to term of imprisonment equating to time served

Common law - contract - claim for cost of removal of land fill.

ADMINISTRATIVE LAW - judicial review - jurisdictional error - no evidence - comparison between material available to decision-maker and conclusion reached - material which decision-maker may take into account - whether decision-maker may seek support for an inference from the absence of material supportive of a contrary view - whether available when evaluative judgment is to be formed on the basis of conflicting indicators ADMINISTRATIVE LAW - jurisdictional error - imposition of onus on applicant - Workers Compensation Act 1987 (NSW) - whether the Act imposes a legal onus on the applicant or the WorkCover Authority ADMINISTRATIVE LAW - judicial review - procedural fairness - obligation to disclose information on which decision-maker intends to rely which might support an inference adverse to the interests of the applicant - Workers Compensation Act 1987 (NSW) - whether WorkCover Authority is required to disclose such information ADMINISTRATIVE LAW - judicial review -obligation to give reasons - content of obligation - matters of evaluative judgment - implication of obligation to give reasons and minimum content of such obligation WORKERS COMPENSATION - employer insurance policy - fixing premiums - review by WorkCover Authority of New South Wales - statutory compulsory workers' compensation scheme - power to make further premium determination during and following review process - Workers Compensation Act 1987 (NSW), s 170

ADMINISTRATIVE LAW - tribunals - Administrative Decisions Tribunal - procedure - referral of question of law to Supreme Court - Administrative Decisions Tribunal Act 1997 (NSW), s 118 - whether appropriate for the Supreme Court to answer CONSTITUTIONAL LAW - federal judicial power - whether Administrative Decisions Tribunal has jurisdiction to determine constitutional questions - whether constitutional questions can arise before the Administrative Decisions Tribunal

Rental agreement - compliance by renter - whether owner can terminate - proof of debt - onus of proof as to extent of payments - sufficiency of reasons - signed contract - significance of collateral oral agreement.

Family provision order under Chapter 3 of the Succession Act 2006 - Plaintiff spouse of deceased - Summons filed outside prescribed period - Whether to extend time for making application - Whether provision inadequate for maintenance and advancement in life of Plaintiff - Competing claims of grandchild and great-grandchildren

CONTRACT - advance of $1.3 million in two amounts of $1,000,000 (in December 2006) and $300,000 (in July 2007) - whether gift or loan - TRADE PRACTICES - whether misleading or deceptive conduct at the time of alleged loan transactions - CROSS-CLAIMS - whether miscellaneous sums claimed by the defendant/cross-claimant were applied for the benefit of the plaintiff/cross-defendant or otherwise.

CRIMINAL LAW - appeal - conviction - admissions - s 90 Evidence Ac 1995 - whether the trial judge should have admitted admissions made by an accused to a community support person. CRIMINAL LAW - appeal - conviction - misdirection in presentation of defence case to jury - whether self-defence should have been put to the jury. CRIMINAL LAW - appeal - sentence - wrong statutory ratio of parole to non-parole period - s 44 Crimes (Sentencing Procedure) Act 1999. CRIMINAL LAW - appeal - sentence - whether the sentence was manifestly excessive - whether trial judge considered all mitigating factors - s 21A(3) Crimes (Sentencing Procedure) Act 1999.

CRIMINAL LAW - application for leave to appeal against sentences - pleas of guilty - aggravated detain for advantage - kidnapping - robbery in company - discharging a firearm with intent to cause grievous bodily harm - manifestly excessive sentences - special circumstances - parity of sentencing - aggregate non-parole periods - mental health - psychiatric illness - specific deterrence - s33A(1)(a) Crimes Act 1900 - s 86(2)(a) Crimes Act 1900 - s 97(1) Crimes Act 1900 - Pt 3 Div 3 Crimes (Sentencing Procedure) Act 1999 - s 9 Crimes (Sentencing Procedure) Act 1999 - s 11 Crimes (Sentencing Procedure) Act 1999 - s 44 Crimes (Sentencing Procedure) Act 1999

EVIDENCE - admissibility - coincidence evidence - s 98 Evidence Act 1995 (Cth) - significant probative value - whether regard must be had to alternative inferences inconsistent with guilt - whether R v Zhang was correctly decided - distinction between judge and jury functions in a criminal trial. CRIMINAL LAW - appeal - pre-trial order - insider trading - s 1043A(1) Corporations Act 2001 (Cth)

CORPORATIONS - Insolvency - Liquidation - Application by liquidator to Court under s 511 of Corporations Act 2001 (Cth)

PRACTICE & PROCEDURE - Preservation orders - whether preservation orders should be modified to release certain moneys - Balance of convenience