Cases and authorities

COSTS - insurance - contract - whether insurer required to indemnify against certain costs - whether recovery of costs would impose liability in excess of policy limit.

AGENCY - ostensible authority - requirement for representation - whether company held person out as having authority - no representation - no reliance ESTOPPEL - no representation - no reliance AGENCY - ratification of acts done without authority - ratification by silence, acquiescence or inactivity - requirement that principal be aware of all material facts - no knowledge of material terms - no ratification or adoption

ADMINISTRATIVE LAW - appeal from Administrative Decisions Tribunal - whether right of appeal to Supreme Court - appeal from Appeal Panel of ADT - appeal to Court of Appeal.

PRACTICE AND PROCEDURE - application for adjournment

PROCEDURE - order approving scheme of arrangement - application for stay pending consideration of possible appeal - nature of stay in the circumstances - short restraint on lodgment of office copy with ASIC

LIMITATION - failure to account by real estate agent - claim against the Property Services Compensation Fund - whether application made out of time - when plaintiffs became aware of the failure to account - interpretation of beneficial legislation - whether plaintiffs entitled to interest - how limit on amount recoverable operates when husband and wife claim pecuniary loss - whether limit inclusive of costs

Costs where matter resolved and no hearing on the merits

APPEAL FROM LOCAL COURT - guarantee for sale on credit - guarantee altered without knowledge of guarantor - magistrate held that guarantor only intended to guarantee sales to particular business - magistrate held guarantee never arose and set aside statement of claim - whether error of law or fact - subjective intention of guarantor considered by magistrate - irrelevant consideration - error of law - appeal upheld and matter remitted to Local Court

DEFAMATION - whether imputations conveyed by the matter complained of - DEFAMATION - defence of common law qualified privilege - publication in Korean language newspaper - whether reciprocity of interest or duty established - DAMAGES - aggravated damages - whether malice a relevant factor - whether failure to apologise attracted justified award of damages - reassessment of award

TORTS - injury to patron of fitness centre when she fell down staircase - no handrail - whether operator of fitness centre, as occupier of the staircase, breached its duty of care to the patron by failing to install a handrail - whether lessors of premises liable to contribute to the damages award - significance of lessors having created the risk by undertaking renovations in contravention of safety standards

NEGLIGENCE - employer and employee - psychiatric injury from performance of work - not foreseeable - employer not liable APPEAL & NEW TRIAL - errors by trial Judge - not material - no substantial wrong or miscarriage

ADMINISTRATIVE LAW - jurisdictional error - failure to take into account maximum automatic licence disqualification period in Road Transport (General) Act, s 188(4) - whether judge failed to take into account a relevant consideration when imposing a licence disqualification period - whether judge's refusal to re-open sentence proceedings constituted jurisdictional error - licence disqualification period not in issue on the appeal - no error in the sentence imposed by sentencing judge - no jurisdictional error in refusing application to re-open sentence under Crimes (Sentencing Procedure) Act, s 43 - appeal dismissed ADMINISTRATIVE LAW - whether applicant entitled to discretionary relief under Supreme Court Act, ss 65 and 69 - delay in application to reopen sentence under Crimes (Sentencing Procedure) Act, s 43 - discretionary relief refused CRIMINAL LAW - appeal against conviction and sentence - driving in a manner dangerous to the public and driving with a mid-range prescribed concentration of alcohol - application to reopen the sentence proceedings in respect of licence disqualification period - whether licence disqualification period contrary to law pursuant to Crimes (Sentencing Procedure) Act, s 43(2) - licence disqualification period not in issue on appeal - no error in sentence imposed by sentencing judge - no jurisdictional error in refusing application to reopen sentence under Crimes (Sentencing Procedure) Act, s 43 - appeal dismissed

ESTOPPEL - equitable estoppel - lease of commercial office premises taken by appellant on basis that premises would be occupied as to part by respondent - subsequent refusal by respondent to occupy that part - claim to enforce an equitable estoppel - issues on appeal - findings of fact challenged - circumstances in which equitable proprietary or promissory estoppels might arise - whether equitable proprietary estoppel in circumstances of this case - requirement that expectation be intended and understood to affect legal relations - whether unjust or unconscionable for respondent to depart from expectation that it would enter into a sub-lease - whether appellant entitled to relief by way of equitable compensation.

COSTS - general rule that costs follow event - multiple parties COSTS - general rule that costs follow event, exceptions to the - multiple parties - whether inappropriate joinder - no order as to costs - exercise of discretion

CONSTRUCTIVE TRUST - stolen money used to purchase house - defendant obtained $750,000 from Bank by representing that he had $750,000 credit in another Bank, and could use it as security: defendant used part proceeds to settle house purchase - consideration of facts and circumstances which led to finding that representation was knowingly false - damages awarded for deceit after recovery of part - Bank had charge over house purchased for part proceeds traceable into acquisition of house.

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999 (NSW) - adjudicator finds in favour of first defendant having considered and accepted a quantity surveyor's report relied on by the first defendant which contained a disclaimer to the effect that no one except the plaintiff should rely on it - the plaintiff contended that in relying on the report and in not providing adequate reasons for his reliance on it, the adjudicator failed to make a bona fide attempt to discharge his duties or denied the plaintiff natural justice - held that the adjudicator made no error in relying on the report and that his reasons for doing so were adequate

CONTRACT - construction - guarantee - whether later guarantee replaced earlier guarantee - attempt to rely on pre-contractual conversations and post-contractual conduct as an aid in construction

CRIMINAL LAW - sentence - murder of wife - plea of guilty - no prior criminal record - first offence - 25% utilitarian discount - aggravating factors - mitigating factors - age - special circumstances - victim impact statement

SALE OF GOODS - mercantile agent - agent put in possession of vehicle and authorised to sell - agent's employee sold vehicle to financier and entered into hire purchase agreement for his own benefit - agent did not have actual authority to sell vehicle - whether purchaser obtained title pursuant to s 5(1) Factors (Mercantile Agents) Act 1923 - whether sale made by agent in ordinary course of business of mercantile agent - agent would not supply false invoice if carrying out a transaction it was authorised by principal to carry out - sale not in ordinary course of business of mercantile agent - whether purchaser acted in good faith and in absence of notice of lack of authority to sell - absence of good faith where purchaser suspected that the thing was not altogether right and consciously refrained from making inquiry - s 5 Factors (Mercantile Agents) Act 1923 not satisfied - purchaser did not acquire title

PROPERTY - possession of land - whether an agreement entered into

DEFAMATION - publication over the internet and by email - plaintiff a not-for-profit corporation - no appearance by defendant - assessment of damages - reparation and vindication for damage to business reputation - grapevine effect - injunctive relief is appropriate as there is a real risk the defendant will not desist unless by an order of the court

Common law - practice and procedure - summary judgment

Defamation - plaintiff's action fails - indemnity costs - s40 Defamation Act

PROCEDURE - summary dismissal - defendant alleges unjustness of loan made by Plaintiff and also prior loan paid out by Plaintiff - Collier principle - claim for subrogation and restitution by lender against prior lender - prior lender discharges mortgage when paid out - whether good consideration - whether change of position - whether factual inquiry - not appropriate for summary dismissal.

Criminal law - special circumstances - parity of sentence

CRIMINAL LAW - application for leave to appeal against sentence - aggravated break enter and commit serious indictable offence - serious indictable offence of stealing - circumstance of aggravation being in company - plea of guilty - delay of 20 months between offence and arrest - applicant sentenced during intervening period for offences subsequently committed - grounds of appeal assert failure properly to take into account delay and principle of totality - history of incarceration - extent to which sentences may have been imposed concurrently if dealt with together - no evidence before sentencing judge regarding the other offences - not the role of a sentencing judge to make independent inquiries - no error in approach demonstrated - emphasis on the standard non-parole period - no error of the kind in Muldrock v The Queen demonstrated - leave to appeal granted - appeal dismissed

TAXES AND DUTIES - land tax - whether land exempt from taxation as land used for the dominant purpose of primary production per Land Tax Management Act 1956 (NSW), s 10AA(3) - cattle depastured on land - extensive earthworks carried out for future residential subdivision - earthworks not mere preparatory activities - land properly characterised as land "used for" purposes of primary production and commercial land development - necessary to evaluate competing purposes to determine which purpose dominant - commercial land development dominant purpose - land not exempt - not necessary or appropriate in circumstances to express a view on the operation and effect of Land Tax Management Act 1956 (NSW), s 10AA(2).

LEGAL PRACTITIONERS - particular lien - claim by solicitor over legacy to be paid to plaintiff - solicitor entitled to lien over fruits of action and to have lien protected - order that amount claimed for legal costs be paid into court - payment out of amount claimed for legal costs subject to application for assessment within reasonable time

INJUNCTIONS - interlocutory injunction - application for ex parte injunction restraining exercise of mortgagee's power of sale - where no dispute that power of sale arisen - where contended mortgagee is not exercising power of sale in good faith - general approach reconsidered in Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd [2011] NSWCA 39 - serious question to be tried as to whether bank acting in good faith in seeking to exercise power of sale over family home where other properties secured to bank sufficient to discharge debts - balance of convenience favours restraint on exercise of mortgagee's power of sale - injunction granted

SUCCESSION - wills - construction - specific devise - costs of transfer to be borne by devisee as a general rule - general rule must yield where contrary intention can be sufficiently inferred

Procedure. Protecting privacy to prevent identity theft. Need to have regard to the principal of open justice and the duty to give reasons and make factual findings.

CORPORATIONS - company in liquidation - liquidator acted as chairman at meeting of creditors - whether conducted meeting properly - whether inconsistency between Corporations Regulations 2001 r 5.6.17 and Corporations Act 2001 s 497(8) - no inconsistency - liquidator can be chairperson if creditors do not exercise powers under s 497(8) - whether proxies exercised correctly - use of proxies by chairman made no difference to outcome of poll

PRACTICE AND PROCEDURE - evidence - admission of hospital reports

CRIMINAL LAW - murder - intent to murder - trial by judge alone - defence of mental illness - special verdict

CONTRACT - ss 31, 40 and 50 Sale of Goods Act 1923 (NSW) - contract for the supply and purchase of iron ore - construction of provision entitling buyer to request seller not to load shipments - whether seller's concurrence required - whether buyer breached contract by refusing delivery - provision entitling buyer to reduce level of purchases where caused by requirement for buyer to reline its blast furnace and provided reduction was reasonably proportional to reductions of purchases from other iron ore suppliers - whether buyer exercised its rights under the provision - whether reduction was reasonably proportional - BREACH - whether purchaser breached contract by not being ready and willing to deliver - whether buyer dispensed with requirement for purchaser to be ready and willing - DAMAGES - whether seller suffered damages where it was not ready and willing to deliver - measure of damages - mitigation - whether seller failed to mitigate damages - construction of limitation provision

Serious sex offender - application for extended supervision order

PROCEDURE - pleadings - applications by Defendants for leave to file Defences and Cross-Claims - contracts - illegality - the effect of illegal conduct on the formation of contracts - principle in Collier v Morlend Finance - whether complete defence - form of pleading - applications refused.

[DEFAMATION] - whether error in finding of fact pivotal to finding of malicious and false accusations - whether error in finding that "occasion" of qualified privilege was "lost" - whether failure to identify motive or purpose foreign to occasion of qualified privilege - whether finding of malice justified - reconsideration of defence of qualified privilege

TRADE AND COMMERCE - misleading and deceptive conduct - sale of newsagency business - whether schedule forming part of facsimile sent by vendor's accountant to purchasers prior to sale conveyed a misleading and deceptive representation of the business' wage expenses - whether purchasers relied on terms of facsimile DAMAGES - misleading and deceptive conduct - sale of newsagency business - primary judge awarded purchasers damages in respect of overpayment for goodwill and in respect of continuing losses incurred in the five years following purchase - whether purchasers had already been compensated for continuing losses by the award of damages in respect of overpayment for goodwill - whether purchasers entitled to damages for loss suffered during their initial period in control of business

TRADE AND COMMERCE - misleading and deceptive conduct - respondent mortgage broker submitted to lender's agent documents that purported to constitute loan application by borrower - lender advanced monies pursuant to loan contract and mortgage that were subsequently declared void - whether respondent represented to lender's agent that it had verified borrower's identity and that borrower had signed the loan documents - whether primary judge erred in finding that lender had not relied upon representations due to intervening conduct of its agents in not following standard procedures PROPORTIONATE LIABILITY - misleading and deceptive conduct - respondent mortgage broker submitted to lender's agent documents that purported to constitute loan application by borrower - lender advanced monies pursuant to loan contract and mortgage that were subsequently declared void - borrower signed loan and mortgage documents in presence of independent solicitor - whether solicitor represented to lender that he had given independent legal advice to borrower and that borrower had freely and voluntarily signed loan and mortgage - whether solicitor a concurrent wrongdoer within the meaning of Part 4 Civil Liability Act - mortgage broker's liability limited to 65% in light of 35% responsibility of solicitor for lender's loss - significance of receipts and prospective receipts by lender from the solicitor as a non-party concurrent wrongdoer

PRACTICE AND PROCEDURE - costs - family provision - whether plaintiffs' costs should be assessed on the indemnity basis - whether plaintiffs' costs should be capped - offer of compromise not more favourable than judgment obtained by plaintiff - executor did not act unreasonably in not accepting Calderbank offer - not possible to make just assessment of what would be a proper amount at which to cap plaintiffs' costs - plaintiffs' entitled to costs on ordinary basis as agreed or assessed - executor entitled to costs on indemnity basis to be paid out of estate - order that executor's costs be paid out of estate on indemnity basis does not affect right of beneficiaries to contend on passing of accounts that expense for legal costs should not be recoverable from estate because not properly incurred

PROCEDURE - miscellaneous procedural matters - plaintiff's application for summary judgment - defendants' application to strike out pleadings under UCPR, r 14.28 and stay proceedings under UCPR, r 12.10 until costs orders paid in substantially similar prior claims - BANKRUPTCY - scope and policy of legislation - application of bankruptcy laws - Bankruptcy Act (Cth), s 60(2) - proceedings brought by an undischarged bankrupt - whether stayed by the operation of the Bankruptcy Act.

GUARDIANSHIP - protected persons - financial management - interim financial management orders - appeal from decision of Guardianship Tribunal as of right on question of law - Guardianship Act 1987, Pt 3A - whether Guardianship Tribunal can make interim financial management order under Pt 3A, Guardianship Act 1987 if it has already made an interim financial management order in respect of same person's estate - person may be the subject of an application for a financial management order, including interim financial management order, whether or not the person has previously been the subject of such an application: Guardianship Act 1987, s 25J(1)

Reasons for judgment in the substantive case - Concluded in those reasons that the Plaintiffs were entitled to Probate in solemn form of the Will of the deceased that they propounded - Dismissed the Cross-Claim in which the Defendant had propounded a later Will - Plaintiffs seek the costs of the proceedings calculated on the ordinary basis - Defendant seeks an order that there be no order as to costs

Criminal law - murder - evidence of expert witness - comparison of footwear patterns on crime scene shoes and footwear of accused

COMMERCIAL ARBITRATION - whether leave to appeal to the Supreme Court should be granted on questions of law arising out of commercial arbitration award - whether threshold requirements pursuant to s 38(5) of the Commercial Arbitration Act 1984 (NSW) satisfied - whether the determination of the relevant questions of law could substantially affect the rights of one or more parties to the arbitration agreement - whether there is either a manifest error on the face of the award or strong evidence that the Tribunal made an error of law and, if so, the determination of that question may add or be likely to add substantially to the certainty of commercial law - if threshold requirements satisfied whether discretion should be exercised to grant leave - CIVIL PROCEDURE - consideration of Home Office v Harman implied undertaking in relation to use in the subject arbitration or these proceedings of documents obtained during the course of another arbitration - HELD - leave to appeal granted in relation to one question of law

TORT - negligence - blameless accident - contributory negligence - 100% contributory negligence

PROCEDURE - courts and judges generally - disqualification - apprehended bias - actual bias - four applications refused - reasons

PRACTICE AND PROCEDURE - costs and interest - rate of interest payable pursuant to s 84A Probate and Administration Act 1898 - plaintiff's costs to be paid on the ordinary basis as agreed lump sum by the executor out of estate - executor entitled to costs on indemnity basis of defending claim

CRIMINAL LAW - appeal against sentence - use of Form 1 offences - whether sentencing judge erred in refusing to find special circumstances - parity - whether sentence manifestly excessive.