Cases and authorities

CONTRACT - identifying terms of contract - what terms were implied in the contract from the United Nations Convention on Contracts for the International Sale of Goods (CISG) - whether goods supplied were fit for purpose and of merchantable quality - whether implied warranty of fitness for purpose had been breached - whether circumstances of termination had any direct relevance to the quantification of damages - DAMAGES - contract - assessment of damages - whether direct losses were sustained - whether indemnity for compensation could be claimed - whether plaintiff could claim damages for loss of profit due to breach.

CRIMINAL LAW - confiscation of criminal proceeds - restraining orders - no matter of principle.

CRIMINAL LAW - confiscation of criminal proceeds - restraining orders - necessity for reasons.

COSTS - Costs where Plaintiff substantially successful in motions - Defendant granted indulgence of leave to withdraw or qualify admissions

FAMILY LAW AND CHILD WELFARE - Adoptions - child over 12 gives sole consent to adoption - whether best interests of child promoted by adoption - whether making such order preferable in best interests of child to any other action taken by law - unrealistic for child to be restored to birth family - only real alternative for Minister to retain parental responsibility - permanent solution provided by adoption order clearly superior - adoption order will provide child with security and permanency of adoptive family - adoption order in best interests of child and clearly preferable. FAMILY LAW AND CHILD WELFARE - Adoptions - change of name of child - child consents to change of name - of itself compelling reason to make order - fact child approaching 18 further reason for approving name change.

CRIMINAL LAW - Navigation offences - reckless navigation of vessel on navigable waters under (NSW) Marine Safety Act 1998, s 13(1)(b) - actus reus of offence - whether Magistrate erred in holding actus reus of offence required real or obvious and serious risk of harm eventuating - plaintiff contends that incurring slight possibility of grave harm sufficient to satisfy actus reus - Magistrate focuses on likelihood of harm eventuating - offence concerned with conduct - navigation of vessels activity of social utility that carries intrinsic risk - Parliament did not intend to prohibit assumption of slight risk even if consequences particularly grave - actus reus requires operation of a vessel to incur a risk that is obvious, the likelihood of which is serious and the potential consequences of which involve personal injury or substantial property damage - likelihood of risk materialising must be at least real, obvious and serious - Magistrate applied correct test. CRIMINAL LAW - Navigation offences - negligent navigation of vessel on navigable waters under (NSW) Marine Safety Act 1998, s 13(1)(a) - whether mere incurring of risk with potentially grave consequences satisfies negligence - mere presence or foreseeability of risk insufficient for negligence - negligence requires unreasonable incurring of risk - assessment of reasonableness conditioned by likelihood of materialisation of risk - mere existence of risk insufficient to constitute negligence. CRIMINAL LAW - Navigation offences - negligent navigation of vessel - whether Magistrate erred in applying standard of care requiring a high and significantly culpable degree of negligence higher than civil standard - criminal negligence and civil negligence distinct concepts - criminal negligence does not require harm to eventuate from negligent conduct - criminal negligence does not require breach of duty to a particular individual - criminal negligence must be proved beyond reasonable doubt - gradations of criminal negligence exist - differing standards of negligence required for manslaughter, dangerous driving and mere negligent driving - criminal negligence in present statutory context requires departure from standard of care for other road users expected of the ordinary prudent driver in all the circumstances - Magistrate applied incorrect test by requiring "criminally culpable degree of carelessness", and a "higher degree of negligence ... than under the civil law", and "acting without due care to a criminal grade". CRIMINAL LAW - Navigation offences - reckless and negligent navigation of vessel - whether Magistrate erred in considering voluntary participation of cadets in recreational activity as an exculpatory factor - Magistrate did not consider this as exculpatory factor - criminal and civil negligence distinct concepts - would be erroneous to treat tortious defences such as voluntary assumption of risk as applicable to criminal offences - voluntary participation in activity carrying obvious risk may be relevant circumstance under s 13(3) in considering whether operation reckless or negligent. CRIMINAL LAW - Navigation offences - reckless and negligent navigation of vessel - whether Magistrate erred in failing to hold that on facts found defendant had acted recklessly or negligently - error of law where decision-maker reaches conclusion on ultimate issue on facts found that is not legally open - real issue whether risk of being thrown overboard in context of vessel turning and having uncovered rear propeller negligent or reckless - Magistrate finds evidence does not establish likelihood of propeller strike - Magistrate finds evidence does not establish beyond reasonable doubt whether incident was materialisation of a real obvious and serious risk as opposed to a freak occurrence - conclusion as to recklessness one reasonably open to Magistrate - application of correct negligence test - whether conduct of defendant departed from standard of care commensurate with civil standard - Magistrate concluded unable on evidence to ascertain likelihood of risk materialising - impossible to decide conduct negligent even if correct test applied - conclusions of Magistrate reasonably open on primary facts found - no error of law. CRIMINAL LAW - Disposition of prosecution appeal - consequence of Magistrate erring in application of negligence test - generally appeals will not succeed unless error of law affects ultimate order made - erroneous application of negligence test would not have affected ultimate result - test for negligence applied by Magistrate followed from prosecution concurring with defendant's submissions as to applicable standard of care - parties bound by conduct of case at trial - not in interests of justice to uphold appeal.

CONTRACTS - Broadcasting and related industry contracts - plaintiff owner and operator of broadcast infrastructure - defendant has access to and use of plaintiff's infrastructure pursuant to contract - defendant exercises option to renew contract - contract provides for expert determination of licence fee if parties fail to reach agreement - expert charged with determining a reasonable fee having regard to rates charged to third parties at facility in question - term sheet determines that expert determination final and binding except if attended by manifest error or error of law - terms of contract direct task to be performed by expert and whether determination binding. CONTRACTS - Plaintiff alleges error of law on basis expert misconceived function by adopting objective "market value" assessment to ascertain fee as opposed to a subjective "fair value" approach - function of expert determined by contractual provisions - contract provides for hybrid process requiring consideration of subjective and objective factors, with rates charged to third parties a mandatory consideration - contract requires appraisal akin to 'fair market value' - expert does not have regard to exclusively objective considerations and considers position of particular parties - expert did not misconceive function. CONTRACTS - Plaintiff alleges error of law on basis expert failed to consider relevant factor - relevant consideration said to be 'special value' of contract to defendant - requirement for ascertainment of 'reasonable fee' refers to defendant as a willing but not anxious and involuntary purchaser - requirement for 'reasonable fee' antithetical to valuation proceeding on basis plaintiff a monopolist - expert did consider special value of contract to defendant. CONTRACTS - Plaintiff alleges error of law on basis expert failed to give weight to current fees under original contract - expert had regard to such fees but concluded of limited relevance - not an error of law to weigh relevant factors in a particular way as opposed to not consider them - circumstances prevailing ten years previously when agreement first made materially different to present - fees agreed ten years previously not useful guide to what constitutes a 'reasonable fee'. CONTRACTS - Plaintiff alleges error of law and manifest error on basis expert used incorrect comparator in assessing 'reasonable fee' - expert said to have incorrectly compared digital audio broadcasting with digital television broadcasting - audio broadcasting said to be inapposite comparator due to fact radio different medium to television with different cost factors - digital audio broadcasting fees considered by expert pertain to agreement between same parties and are relatively recent - errors in methodology employed by expert valuer not errors of law - matter of professional judgment as to weight to accord cost recovery and profit margin - expert evidence adduced in attempt to illustrate manifest error - fact such evidence needs to be adduced conveys error not manifest - expert did not make error of law or manifest error. CONTRACTS - Plaintiff alleges expert failed to give detailed reasons - question whether reasons are 'reasons' within the meaning of the contract - failure to provide 'detailed reasons' entails there will not be a binding determination - due to requirement of 'detailed statement of reasons', provision of wider than usual scope to challenge binding nature of determination and fact issues are complex standard of reasons required by contract akin to that expected of judges and commercial arbitrators - expert sufficiently identifies methodology and provides sufficiently detailed and comprehensive reasons - reasons are 'detailed reasons' within meaning of contract. CONTRACTS - Plaintiff alleges error of law on basis determination manifestly unreasonable - determination said to be unreasonable in Wednesbury sense because of relative magnitude of reduction in licence fee - contract requires new fee to be determined with predominate regard to market based considerations and cost considerations not prevailing when original fee determined - determination not so unreasonably low - determination rewards plaintiff above avoidable cost - arguable that perpetuating current fee would be unreasonable - determination not manifestly unreasonable.

CONTRACTS - Whether deceased made certain promises to plaintiff in 2003 in consideration of her leaving escort industry to become his non-exclusive mistress -alleged promises include establishment of multi-million dollar trust funds for plaintiff's children, and half a million dollar annual allowance and allowances for accommodation and business expenses for plaintiff - whether deceased made promises question of fact - defendant calls no evidence, save for tendering some documents - plaintiff's evidence challenged but uncontradicted - cases against deceased estates founded on oral utterances of deceased which only deceased can refute require Court to closely scrutinise plaintiff's evidence - no legal requirement for corroboration but corroboration ordinarily sought - plaintiff's version of events of doubtful reliability - in context of a case involving extraordinary wealth deceased who had other "mistress" relationships plaintiff's evidence not inherently incredible - some limited corroboration of plaintiff's version - plaintiff consulted solicitors about claim prior to death of deceased - defendant could have called associate of deceased to deny subsequent conversation detailing promises allegedly made to plaintiff - witness in defendant's camp and practically available to defendant - Jones v Dunkel inference drawn that associate's evidence would not have assisted defendant's case - held that deceased made promises as alleged in 2003 conversation. CONTRACTS - Certainty - terms of agreement discussed in 2003 conversation sufficiently certain and complete. CONTRACTS - Intention to create legal relations - absence of express statement that arrangements are legally binding -inference of fact whether intention to create legal relations - intention objectively determined - parties to family, social and domestic arrangements or agreements generally do not intend to create legal relations - rebuttable presumption that in such contexts parties do not intend arrangements and agreements to be legally binding - creation of "mistress" relationship determines that context of present case social - not obvious plaintiff relied on enforceable promise - parties did not seek legal advice and agreement not recorded in writing - incongruous to assume deceased could have obtained injunction restraining plaintiff from returning to escort industry or claimed damages for disappointment if plaintiff did not adequately discharge "mistress" role - subsequent conduct considered in assessing whether legally binding agreement intended - plaintiff's subsequent letter to deceased does not assert legal right to performance of promise - presumption no intention to create legal relations not rebutted - parties did not intend to make contract. CONTRACTS - Contracts that are void, illegal or unenforceable on grounds of public policy - contracts that are sexually immoral and/or prejudicial to the status of marriage - historically contracts for an 'immoral purpose' unenforceable - changing social mores result in liberalised attitude to extramarital cohabitation - rule as to unenforceability of contracts that are sexually immoral and/or prejudicial to status of marriage still pertains - content of rule - authorities establish two classes of case where contract will be not be void: where contract does not bring about state of extramarital cohabitation but makes provision for extant one; and/or where sexual relationship part of wider relationship including cohabitation and mutual support - contracts to provide meretricious sexual services contrary to public policy and illegal - arrangements between plaintiff and deceased not made to facilitate continuation of extant cohabitation or for a relationship beyond sexual services - contract void as contrary to public policy. ESTOPPEL - Equitable estoppel - plaintiff must establish that she acted to her detriment on basis of assumption adopted by reason of the conduct or acquiescence of the defendant in circumstances where unconscionable for defendant to deny assumption - plaintiff claims suffered detriment by reason of giving up escort business, closing accessories business and not documenting agreement with deceased in writing - plaintiff had left escort business six years prior to arrangement - no evidence deceased asked plaintiff to close accessories business - omission to record agreement in writing not relevant detriment - detrimental reliance not established - rule that courts will refuse to enforce rights where enforcement would offend public policy equally applicable to claims arising in estoppel as in contract - plaintiff's claim in equity also fails on public policy grounds. CONTRACT - Whether plaintiff's claim not maintainable by reason of an accord and satisfaction said to have occurred in February 2005 - plaintiff offered via email $100,000 and transfer of ownership in a car "in full and final settlement" of all claims against the deceased - plaintiff accepts moneys and car - accord and satisfaction requires sufficient material in relevant documents so that it is seen that acceptance of payment will be in full and final settlement of claim - any reasonable reader would have construed payment to be made in full and final settlement of all claims - plaintiff's reply to email that she "accepted" and "acknowledged" the communication evince agreement to its terms - plaintiff's claims not maintainable. CONTRACT - Whether plaintiff's claim not maintainable by reason of an accord and satisfaction said to have occurred in November 2005 - plaintiff offered, via document provided to her by associate of deceased, $50,000 "in full and final settlement of all current and future claims" against deceased - plaintiff denies reading document - highly improbably plaintiff did not read document as corrected spelling of her name and signed it - no application to set aside release - plaintiff again released claims in November 2005.

APPEAL - precedent - power to depart from previous decision of Court - test in Gett v Tabet - altering practice as distinct from altering a decision on a question of law - whether Court of Appeal practice should be altered when inconsistent with practice of the High Court and other intermediate Australian courts PROCEDURE - civil - judgments and orders - stay - pending special leave to appeal to the High Court - test in John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 conflicts with test in Jennings construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 - whether exceptional circumstances must be shown before a stay is warranted PROCEDURE - civil - judgments and orders - stay - pending special leave to appeal to the High Court - whether substantial prospects of obtaining special leave - whether short stay appropriate even if no substantial prospects of obtaining special leave

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether contract was one for the carrying out of residential building work for the purposes of s 7(2)(b) - whether, had s 7(2)(b) been found to apply, relief in the nature of certiorari should be withheld on discretionary grounds.

PRACTICE - application for adjournment of further hearing on basis of unavailability of counsel - that known at all relevant times - prejudice - terms as to costs.

CRIMINAL LAW - sentence - riot - violent fight between rival bikie gang members at airport - serious offence but not worst case category - conviction after protracted trial - acquittal for murder and manslaughter - offers to plead guilty rejected by prosecution - deterrence - special circumstances - parity with co-offenders

ADMINISTRATIVE LAW - Building and Construction Industry Security of Payment Act 1999 (NSW) - questions of administrative law - where adjudicator materially denied parties natural justice by determining his jurisdiction in a way for which neither party had contended and without giving them the opportunity to be heard - whether adjudicator's determination void. BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether s 7(1) authorizes more than one adjudication application to be made at the one time for the one payment claim.

CONTRACT - where the defendant was a participant in the plaintiff's bidding group which purchased commercial properties from a third party - whether there was a binding agreement between the plaintiff and the defendant that the defendant would pay a fee to the plaintiff if the plaintiff included the defendant in the bid and the defendant ultimately purchases two properties from the third party - whether the plaintiff is prohibited by s 9 of the Property, Stock and Business Agents Act 2002 (NSW) to recover the fee

CONTRACT - construction of contract - where the plaintiff and defendant are parties to a contract pursuant to which the defendant provides data transfer services to the plaintiff who then resupplies those services to its customers for a term of five years - where the contract stipulates the provision by the defendant of termination assistance to the plaintiff during the last six months of the contract up till 180 days after the term of the contract - what services the defendant is required to continue to provide after the five-year term - what standard of service the defendant is required to provide in its termination assistance - what price is the plaintiff required to pay the defendant for termination assistance - where the contract requires both parties to negotiate and agree on a termination assistance plan within a specified time period but that has not occurred - where the contract contemplates that a termination assistance plan may not be prepared by the parties - whether time is of the essence - whether the plaintiff can, almost three years after the contractually specified time limit, rely on the clause that requires a termination assistance plan to be prepared within one year of commencement of the contract

CRIMINAL LAW - appeal - unreasonable verdict - approach to be taken - miscarriage of justice on the basis of prejudice and bias - no miscarriage of justice - no reasonable doubt arising from evidence - leave to appeal necessary - leave granted - appeal dismissed.

PRACTICE AND PROCEDURE - Costs - second defendant makes settlement offer "without prejudice save as to costs" - plaintiff rejects offer - plaintiff's claims fail - offer not in form stipulated by UCPR r 20.26 - such offer can still have costs consequences - in circumstances offer justifies costs payable on indemnity basis from date of offer. PRACTICE AND PROCEDURE - Costs - second plaintiff replaced as trustee - second plaintiff ceases to be party as no longer necessary or proper party - at time second plaintiff ceased to be party opportunity afforded to debate question of costs - opportunity not taken - expectations engendered in former second plaintiff - as matter of discretion no further costs order made. PRACTICE AND PROCEDURE - Interest on costs - in absence of countervailing discretionary consideration ordinary position that party who obtains costs obtains interest - consents between first defendant and plaintiff and third defendant and plaintiff contain term "no other order as to costs" - whether that term precludes order for interest under (NSW) Civil Procedure Act 2005, s 101(4) - at time consents entered into not unreasonable for plaintiff to think costs dispute brought to an end in context where no application for interest on costs made - looked at objectively plaintiff would have assumed consents brought costs disputation to a conclusion - inappropriate to make order for interest.

EQUITY - application for interlocutory injunction - a lot owner in a strata scheme seeks to restrain the owners corporation from entering into a building contract - the proposed building contract has a component of fire safety works designed to achieve compliance with the local Council's notices under Environmental Planning and Assessment Act 1979 s121B and s121H - another component of the work is arguably to improve or enhance common property - whether the execution of any part of the proposed contact should be restrained - whether serious question to be tried -- assessment of the balance of convenience - REAL PROPERTY - strata title - management and control - strata managing agent appointed to defendant owners corporation under Strata Schemes Management Act 1996 ("SSM Act") s 162 - whether arguable that the terms of the appointment of the strata managing agent do not displace the requirement for a lot owner's consent to the owners corporation making a by-law to which SSM Act s52 applies.

CORPORATIONS - securities - dealing in securities - ASIC suspects insider trading and has commenced investigation - first and second defendants submit to short term restraints on travel out of Australia - first defendant fails to return to Australia contrary to agreed restraints - second defendant proposes to travel out of Australia to China - ASIC seeks variation to existing orders so as to prevent the second defendant's overseas travel - nature of task before the Court - balancing of interests.

SUMMARY PROSECUTION - Fisheries offences - pleas of guilty - whether boat used in connection with offences should be forfeited.

PRACTICE AND PROCEDURE - costs - costs orders to be made upon discontinuance of proceedings - probate - where plaintiff sought a grant of letters of administration with will annexed - Uniform Civil Procedure Rules 2005, r 42.19 - whether plaintiff should have appreciated when commenced proceedings that no real prospect of success - whether prima facie rule that on discontinuing proceedings plaintiff should pay costs on ordinary basis - whether plaintiff acted reasonably in filing the summons seeking grant of letters of administration with the will annexed - special rules about costs apply to probate actions - some sound positive ground or reason for making an order to displace the operation of Uniform Civil Procedure Rules 2005, r 42.19 - order that each party bear their own costs

CRIMINAL LAW - whether offence breach of statutory duty ENVIRONMENTAL LAW - pollution -emissions -- statutory licence -- whether implied condition limiting emissions NUISANCE - defence -- statutory authority -- reasonable care STATUTE - statutory offence - whether breach of statutory duty

CONTRACT - purchase and lease of aircraft - appointments of Manager - stipulated management fee - appointment of a replacement Manager - whether fee payable - construction of documents - congruent operation - fee payable. SECURITIES - events of default - money payable to chargor - direction to pay to third party - third party would hold on trust for chargor - whether attempt to dispose of or deal with or allow interest to arise in secured property without chargee's consent - money was payable by chargee - payment would be with its consent - no attempt etc. TRUSTS - whether third party would hold the money on trust - whether objective manifestations of intention - intention manifested.

TORTS - negligence - personal injury - chainsaw - host employer - labour hire company - existence of duty of care - breach of duty of care - apportionment - assessment of damages - non economic loss - past economic loss - future economic loss - past attendant care services

ADMINISTRATIVE LAW - proceedings in the Dust Diseases Tribunal - primary judge made an order pursuant to s 151AC Workers Compensation Act 1987 appointing appellant insurer as the designated insurer liable to indemnify defendant employer under s 151AB - no dispute between insurers as to which was liable to indemnify the employer - whether primary judge's decision was vitiated by jurisdictional error WORKERS COMPENSATION - worker claimed damages in the Dust Diseases Tribunal in respect of divisible and indivisible injuries - worker continued relevant employment with defendant employer after appellant insurer went off risk but confined his damages claim to a shorter period - primary judge concluded that the last date to which worker's claim was expressed to relate was the relevant date for the purposes of s 151AB(1) Workers Compensation Act 1987 rather than the later date when worker's relevant employment ceased - whether conclusion was erroneous insofar as it related to the worker's indivisible injury claim

PROFESSIONAL NEGLIGENCE - Drafting and preparing conveyancing contracts - enforceability of side agreement - legal profession - scope of retainer - breach of retainer - scope of duty of care - breach of duty of care - Conveyancing Act

PARTNERSHIP - dissolution - former partners continuing to trade but as two separate firms - one firm making use of sources of goodwill of former partnership - distinction between goodwill and sources of goodwill - breach of fiduciary duty - removing and retaining files - whether equitable compensation include amount for reduction in value of goodwill CONTRACT - whether binding agreement for payment by incoming partner for share of goodwill COSTS - exercise of discretion - whether costs of partnership dissolution proceedings should be borne equally by partners - whether offers of compromise comply with UCPR r 20.6(2)

CONTRACT - interpretation - effect of entry into deed of release on operation of employment agreement - whether employee entitled to terminate by giving three months' notice - whether restraint of trade clause continued to apply - distinction between termination of employment relationship and termination of employment contract EMPLOYMENT- whether restraint of trade clauses reasonable and enforceable REMEDIES - injunctions to enforce covenants in restraint of trade - whether "springboard" doctrine provides basis for injunction beyond period of contractual restraint - basis for injunctive relief against company not bound by covenants APPEAL - practice and procedure - whether leave to appeal required - interpretation of s 101(2)(r)(ii) Supreme Court Act - whether should exercise discretion to grant leave - considerations - whether proceedings moot - whether any question of principle - costs incurred in proceedings below

CLAIM FOR DAMAGES - misfeasance in public office and negligence - Plaintiffs obtain development approval from Defendant to build apartment block at Nelson Bay - lengthy delay by Plaintiffs in commencing work on development - Defendant grants development approval for other apartment blocks in the vicinity in the meantime - Plaintiffs seek to increase height and density of project in light of adjoining developments - Plaintiffs make modification application under s.96 Environmental Planning and Assessment Act 1979 - s.96 application with Defendant for extended period - Plaintiffs at no stage appeal to Land and Environment Court under s.96(6) Environmental Planning and Assessment Act 1979 against deemed refusal - planning officer obtains independent legal advice whether s.96 application or fresh development application appropriate - planning officer follows advice that s.96 application was open - height and density issues - independent legal advice obtained whether Department of Planning concurrence required - Plaintiffs repeatedly provide Defendant with revised plans - Plaintiffs lobbying Councillors as well as dealing with planning officer - Plaintiffs in financial difficulties - mortgagee takes possession of development site - Defendant ultimately refuses s.96 application - Plaintiffs sue Defendant claiming damages by way of loss of chance to make a profit MISFEASANCE IN PUBLIC OFFICE - elements of tort - claim by Plaintiffs that planning officer acted with intention to harm Plaintiffs - whether planning officer was holder of public office - mental element - whether conscious maladministration demonstrated - planning officer obtained and acted on independent legal advice - substantial cause of delay in determination of s.96 application was frequent amendments of plans by Plaintiffs - prejudgment by planning officer not established- intention to harm Plaintiffs not established - claim for misfeasance in public office fails NEGLIGENCE - whether duty of care owed by Defendant to Plaintiffs - statutory scheme - availability of appeal under s.96(6) Environmental Planning and Assessment Act 1979 if application not determined within 40 days - whether Plaintiffs vulnerable - whether reliance on Defendant - held duty of care did not arise - no breach of duty in any event - claim in negligence fails

CHILDREN - application for relief in the Court's parens patriae jurisdiction - whether exceptional circumstances.

EQUITY - equitable - remedies - injunctions - termination - of a TAB agency agreement - agent seeks reinstatement to TAB premises pending final hearing - whether serious question to be tried - whether balance of convenience favours grant of an injunction.

COURTS AND JUDGES - Application by media interests to discharge and vary extant interim suppression order - order presently in place expressed to operate until further order of the Court or the Court of Appeal - subsequent appellate proceedings instituted - appellate proceedings dealt with separate suppression orders made by Judge of Appeal - no application for leave to appeal against original suppression order - undesirable that order be self-executing - need for order to be consistent with basis on which order originally made - application refused. PRACTICE AND PROCEDURE - Stay of proceedings - parties agree to refer disputes arising under deed to confidential mediation and arbitration - threshold questions raised as to standing of applicant and whether proceedings an abuse of process - application dealt with on merits without deciding threshold questions - issue whether proceedings are a 'dispute' under the deed referable to confidential mediation and arbitration - whether proceedings a 'claim' precluded by deed - 'claim' refers to proceedings existing or discontinued at date of deed - whether proceedings involve breach of deed by seeking removal of trustee and replacement with non-Hancock family member - plaintiffs seek no such thing - references in deed to proceedings and discontinued proceedings relate to proceedings existing or discontinued at time of entrance into deed - proceedings said to result in Hancock Prospecting not being owned or controlled by Hancock group members - conformable with this provision that trustee be replaced by Hancock family member - proceedings said to involve contravention of disparagement provisions - even if proceedings involve disparagement not a proper basis for stay - contention that making public of deed a breach of deed -public policy reasons why such argument should be rejected - not a dispute 'under this deed' - application dismissed.

INTERLOCUTORY APPLICATIONS - where the parties (other than the first defendant) are involved in complex whisky investment schemes - plaintiffs' motion for production of information and preservation of assets and second, third and fourth defendants' motion for security for costs - worth of undertakings proffered by plaintiffs

REAL PROPERTY - caveats - application for leave to lodge fresh caveats - s 74O, Real Property Act 1900 - whether serious question to be tried that plaintiffs have caveatable interest - where plaintiff has second mortgage securing payment of legal costs payable "under" tax invoices rendered to defendants - where plaintiff did not comply with disclosure obligations under Pt 3.2 Div 3 of Legal Profession Act 2004 - defendants not liable to pay amount claimed in invoices until costs have been assessed, s 317 Legal Profession Act 2004 - legal costs not payable by defendant to plaintiff "under" tax invoices - they would be due under certificate of determination of costs as assessed - no debt is or will be secured by the mortgage - leave to lodge fresh caveat refused REAL PROPERTY - caveats - application for leave to lodge fresh caveats - s 74O Real Property Act 1900 - where agreement to apply net proceeds of sale of properties in reduction of debt owed by defendants to plaintiffs - where no presently payable debt - where debt may arise following assessment of legal costs under Pt 3.2 Div 11 of Legal Profession Act 2004 - fact that not a presently a debt payable to plaintiff does not mean plaintiff is not entitled to have net proceeds of sale of properties applied in due course in reduction of such debt when it becomes owing and payable - serious question to be tried that agreement should be specifically enforced - interests claimed caveatable interests - balance of convenience favours the grant of leave to lodge fresh caveats

CRIMINAL LAW - Sentence - two counts of murder - both committed in single confrontation - history of neighbourhood dispute - three gunshots at point blank range

STATUTES - interpretation "assertion"

CRIMINAL LAW - appeal against sentence - discount for assistance - discount for early plea of guilty CRIMINAL LAW - appeal against sentence - defence of mental illness - whether sentencing Judge erred in only taking mental illness into account on the non-parole period - fresh evidence CRIMINAL LAW - appeal against sentence - delay between arrest and sentence

DAMAGES - motor accident - future economic loss - no question of principle

RESTRAINT OF TRADE - restrictive covenants - meaning of "proprietary" interest - whether there was a legitimate proprietary or commercial interest - whether goodwill held by each party has to be in the same industry to be protected RESTRAINT OF TRADE - restrictive covenants - whether a covenant is reasonable reasonableness judged at date of creation but may include contemplated expansion - reasonableness depends on facts in each case - covenant in this case imposed usual minimum restriction of one year, three kilometres - legitimate interest found therefore, prima facie, it can be protected - minimum restriction allowed DAMAGES - breach of restrictive covenant - whether operator of medical centre damaged by breach - no loss demonstrated - no damages awarded TORTIOUS INTERFERENCE - party not liable for interfering with another's contract if it believes that that contract has come to an end - whether must hold belief reasonably - when question is one of termination, rescission or the contents of a contract, belief must be held reasonably - when party does not know of existence of contract and therefore no question of termination, etc arises, there is no need to consider reasonableness

CONSUMER CREDIT - Consumer Credit (New South Wales) Code s 80 - whether a s 80 default notice must be in the exact terms of s 80(3) - notice must reasonably convey the message the section intends and not be misleading to the borrower CONSUMER CREDIT - consequences of an inadequate s 80 notice - whether the notice is invalid - whether the court can grant leave nunc pro tunc - statute allows for restitution and criminal sanctions as consequences of inadequate notice - these consequences strongly tend against further consequences - breach of s 80, at most an irregularity - authorisation to proceed may be given nunc pro tunc

LEASES - lease of part of lot - part not specified - no plan attached - whether void for uncertainty - whether lease sufficiently identified demised premises LEASES - subdivision - Environmental Protection and Assessment Act 1985 s 76A - whether agreement for lease effected an illegal subdivision - exclusions from agreement were buildings or parts of a building - agreement for lease did not effect a subdivision LEASES - abandonment - agreement for lease assigned by second respondent to first respondent - whether constituted an abandonment - abandonment usually requires both factum and animus - at no stage did the respondents wish to abandon the lease - lease not abandoned

TORTS - wrongful imprisonment - detention of person with disabilities in residential centre - whether imprisonment - absence of formal consent by Public Guardian - whether Public Guardian acquiesced in detention - justification for detention - availability of aggravated or exemplary damages - principles

BANKRUPTCY - vesting of choses in action in Official Trustee upon commencement of bankruptcy per Bankruptcy Act 1966 (Cth), ss 58(1) and 60(2) - whether exception in s 60(4) for bankrupt to maintain in own name actions in respect of personal injuries or wrongs done to bankrupt operative - Beckham v Drake (1849) 2 HLC 579; 9 ER 1213 and Cox v Journeaux (No 2) [1935] HCA 48; 52 CLR 713 considered - action against former solicitor for failure to include in statement of claim a claim for defamation - proper characterisation of claim as loss of chance of successful outcome - proper characterisation of underlying claim against former solicitor as personal injury or wrong done to the bankrupt - bankrupt entitled to maintain action in own name. STATUTORY INTERPRETATION - Bankruptcy Act 1966 (Cth), ss 60(4) and 116(2)(g)(i).

NEGLIGENCE - ceiling collapse in hotel - plaintiffs injured - ceiling not properly installed in 1993 - licence as place of public entertainment renewed in 2002 - structural engineer's certificate that premises structurally sound and capable of withstanding loadings arising from its use - owner of hotel failed to inform structural engineer of activities (dancing) at hotel - owner of hotel breached duty of care requiring that it take reasonable care to avoid foreseeable risk of injury to plaintiffs - but found at trial that factual causation not established between breach and injury to plaintiffs - whether leave to argue on appeal for breach of implied warranty that premises as safe for their purpose as reasonable care and skill could make them - facts not fully found - otherwise not in interests of justice - leave refused - whether finding as to factual causation erroneous - what structural engineer would have done if informed of the dancing - analysis of experts' evidence - (by majority) finding not erroneous.

CONTRACT - unjust - Contracts Review Act 1980 (NSW) - operation of Act where lender uses mortgage originators which in turn use sub-introducers to bring forward potential borrowers - sub-introducers engaged in fraud by falsifying relevant information concerning assets and earnings of borrowers in relation to low documentation lending secured by mortgage over borrowers' homes - lenders had no knowledge of fraud - relevant enquiry for the purposes of the Act, ss 7 and 9 is whether contract is unjust in all the circumstances of the case and whether it is just to grant relief - low documentation lending not unjust of itself but carries inherent systemic risk - principal safeguard against risk in present cases was vigorous application by lender of lending guidelines - lending guidelines not followed - just in all circumstances to grant relief notwithstanding carelessness of borrowers. AGENCY - nature of relationship - agency is a consensual arrangement whereby one party undertakes to act for or on behalf of another - centrality of conception of identity or representation of the principal - entrusting of organisational or enterprise tasks to another party not of itself sufficient to constitute relationship of agency - no relationship of agency between mortgage originator and sub-introducer. UNCONSCIONABLE CONDUCT - requirement of moral obloquy or that conduct is irreconcilable with what is just and reasonable - necessary to characterise relevant contracting party's conduct as unconscionable and not that of a third party - unconscionability not made out in absence of knowledge of contracting party of fraud of third party - Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12CC considered.

PRACTICE AND PROCEDURE - Notices to produce - defendant objects to producing documents in notice - UCPR r 21.10 does not require documents specified in notice to be referred to in an originating process, pleading or affidavit - UCPR r 21.10 requires only that that a thing be identified in the notice - not a valid objection - objection that privilege on certain legal advice not waived - advice deployed forensically - privilege waived - order for production made.

CORPORATIONS - winding up - winding up in insolvency - application by contributories for order terminating winding up - need for plaintiffs to prove company's solvency - where company wound up on basis of unsatisfied statutory demand - company's controllers say that debt not in truth owing - court must work on the basis that it is owing even if disputed - proposal to pay money into court pending determination of that dispute - loan to company for six months proposed - lender not identified - no indication of availability of funds - no indication of how the company would repay - company's assets are unproductive land held for development - expert's report as to solvency - expert merely takes at face value statements made to him by the controllers and gives no assurance of reliability or accuracy of financial data - need for "fullest and best evidence" of solvency not satisfied.

APPEAL - Local Court - no question of principle

CRIMINAL LAW - prosecution appeal - sentencing -- whether manifestly inadequate - aggravated break, enter and steal - consideration of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) CRIMINAL LAW - prosecution appeal - sentencing -- whether manifestly inadequate - shoot at with the intent to murder - failure to assess objective seriousness - erred in the characterisation of the offence as mid range - consideration of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) CRIMINAL LAW - sentencing - standard non-parole period - role of sentencing judge in assessing the objective seriousness of the offence - significance of standard non-parole period