Cases and authorities

TRUSTS - Deceased son said to have held real property purchased from proceeds of sale of deceased's father's cottage on trust - trust said to arise by way of express trust or resulting trust with presumption of advancement rebutted - express trust said to arise from terms on which proceeds provided to son - only evidence supporting existence of trust is solicitor's file note - note evidences only one element of circumstances pertaining to transaction - assessed in context of surrounding and subsequent circumstances note cannot be said to contain terms upon which son held proceeds of sale - evidence rebuts resulting trust - presumption of advancement -property vested absolutely in son. FIDUCIARY DUTIES - Agent and principal - son said to be father's agent - son father's agent in sale of father's house - no obligation in circumstances to act in father's best interests in dealing with proceeds of sale - father in fact authorised and consented to payment of proceeds to son - principal consented to agent's actions. UNCONSCIONABLE DEALING - Relationship of 'special disadvantage' said to arise by father being 'semi conscious' and in hospital subsequent to an operation at time of impugned transaction - no suggestion father lacked mental capacity - contemporaneous arrangement entered into with son illustrates ability to conserve own interests - father not at sufficient disadvantage to constitute 'special disadvantage' - son cannot be said to have taken unfair advantage. UNDUE INFLUENCE - Proved relationships of influence - no evidence that son exerted dominion, authority or superiority over father - no relationship of presumed influence - no evidence of actual undue influence. ESTOPPEL AND CONFIRMATION - Father fails to impugn transaction for period of approximately five years prior to his death - equity aids the vigilant not the tardy - father in fact considered his position and decided not to pursue claim - parties conducted affairs on basis of this decision - not fair or right for claim to be maintained.

PRACTICE AND PROCEDURE - final orders to give effect to reason - further submissions raised - further submissions fail on the merits - costs - no question of principle

CORPORATIONS - application under ss 459G and 459H(1)(b) of the Corporations Act 2001 (Cth) for order setting aside statutory demand - whether an offsetting claim exists - HELD - no genuine offsetting claim established - application dismissed

PROCEDURE - plaintiff's notice of motion for relief already subsumed in settlement - motion dismissed

LEGAL PRACTITIONERS - costs - solicitor's lien - funds in court - where solicitors seek orders for payment of costs from the balance of the plaintiff's verdict monies from the original proceedings -where solicitors' costs have been assessed and certificates issued and judgments pursuant entered - solicitors entitled to the orders sought

CORPORATIONS - proceedings not properly commenced. REAL PROPERTY - Caveat - whether basis for extension of caveat established

CRIMINAL LAW - sentence - pleas of guilty - aid and abet importation of commercial quantity of border controlled drug (amphetamine) - possession of unlawfully imported marketable quantity of border controlled drug (MDMA) - findings by sentencing Judge that Applicant subject to threats of harm to self and girlfriend unless he became involved in offences - Applicant an educated Lithuanian with no criminal history - whether adequate weight given to finding of duress on sentence - relevance of non-exculpatory duress as a factor on sentence - need to assess seriousness of offences in light of findings of duress - need to consider form and duration of criminal conduct, nature of threats made and opportunities available to Applicant to report matter to relevant authorities - importance of general deterrence - error established - Applicant resentenced

CRIMINAL LAW - Crown appeal against sentence - charges of attempting to choke with intent to commit indictable offence, sexual intercourse without consent - arising from the same incident - wholly concurrent sentences passed - whether partial accumulation required

CRIMINAL LAW - application for leave to appeal against sentence - various offences arising from one incident - partial accumulation of sentences for those offences - further partial accumulation upon sentence already being served - whether special circumstances should have been found because of accumulation - danger of applicant becoming institutionalised

DAMAGES - motor vehicle accident - claim for past loss of earnings and future lost earning capacity - prior to accident plaintiff earned income as a self-employed taxi driver and by leasing out a second taxi plate that he owned - whether primary judge erred in finding that plaintiff's pre-injury earnings as disclosed in his tax returns included income from both taxi driving and lease payments - whether fact that plaintiff did not disclose lease payments for income tax purposes precluded him from recovering damages in respect of what he truly earned as distinct from what he disclosed - Registrar directed to refer judgment to Commissioner of Taxation for consideration. DAMAGES - motor vehicle accident - plaintiff sold taxi plates after the accident and claimed damages for loss of opportunity to earn capital profits - whether plaintiff established causal connection between sale of taxi plates and injuries suffered.

BUILDING AND CONSTRUCTION - s 177 Conveyancing Act 1919 - "duty of care not to do anything on or in relation to land..." - whether developer's decision to use particular support system was "doing something" in relation to land - whether developer's decision to use particular support system was something that "removed the support provided by the supporting land" - whether developer's decision to use particular support system was made without exercising reasonable care - relevance of departure from construction certificate BUILDING AND CONSTRUCTION - s 109ZJ Environment Planning and Assessment Act 1979 - whether party was a "contributing party" - effect of agreement of all parties that it would not be alleged that, had a person been a party to the action, that person would have been a contributing party NEGLIGENCE - causation - s 5D Civil Liability Act 2002 - whether failure to warn or advise can only be causative of loss if a warning or notification, if given, would have been acted upon in a way that prevented the loss - whether it is appropriate to attribute liability to someone who puts in place the preconditions that enable another person's negligence to become effective - discussion of the principles governing causation under s 5D AGENCY - whether one party contracted with another as agent for a third party, or whether that party separately contracted with the other in performance of contractual obligations to the third party APPEAL - interference with judge's finding of fact - Jones v Dunkel inference - enables tribunal of fact to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness - missing witness must have been expected to have been called by one party rather than other - inference not available where disputed issue is whether missing witness was agent for the party and no other reason to believe missing witness was in camp of that party CONTRACTS - construction and interpretation - admissibility and legitimacy of use of evidence of post-contractual conduct - discussion of for what proposition County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 is authority - majority reasons do not have as their ratio any proposition about the availability of post-contractual conduct for the purpose of finding the terms of an agreement that is wholly or partly oral CONTRACTS - construction and interpretation - admissibility and legitimacy of use of evidence of post-contractual conduct - post-contractual conduct can be used for the purpose of finding the terms of an agreement that is wholly or partly oral when that conduct is an admission - Tomko v Palasty [2007] NSWCA 258 - circumstances in which being an admission would not permit post-contractual conduct to be used to find terms of a wholly or partly oral contract CONTRACTS - construction and interpretation - that a particular person is party to a contract is a matter of mixed fact and law - whether a party to litigation can make an admission concerning a matter of mixed fact and law - whether admission made by person other than party to the litigation can be admitted against that party - effect of the introduction of the Evidence Act 1995 to the pre-existing common law principles concerning admissibility of admissions for post-contractual conduct CONTRACTS - construction and interpretation - admissibility and legitimacy of use of evidence of post-contractual conduct - post-contractual conduct can be used for the purpose of ascertaining the terms or the subject matter of an agreement that is wholly or partly oral regardless of whether the post-contractual conduct is an admission.

ADMINISTRATIVE LAW - natural justice - operation of casino pursuant to Casino Control Act 1992 - exclusion of gambler by casino operator - whether obliged to afford natural justice - casino operator was occupier of casino premises - entry only by licence of casino operator - exclusion in exercise of right as occupier - no obligation - nor obligation had exclusion been in exercise of statutory power to exclude - exclusion effective.

EQUITY - Equitable remedies - Mortgagee exercised power of sale - Surplus proceeds of sale paid into court - Motion for payment out of court - Whether applicant entitled to funds - Whether any competing claimants - Whether all interested parties served

PROCEDURE - application to strike out statement of claim - statement of claim defective - unsupported by particulars - unintelligible, ambiguous, vague and too general - order for security for costs - second plaintiff resides outside New South Wales - plaintiffs have not paid two previous cost orders - application for joinder cannot survive striking out of statement of claim.

CORPORATIONS - application for termination of receivership or removal of receivers and managers - HELD - application dismissed

CRIMINAL LAW - sentence - felony murder - plea of guilty - no issue of principle - sentence imposed

ADMINISTRATIVE LAW - where firefighter charged with misconduct under Fire Brigades Regulation 2008 and suspended - where formal inquiry officer found firefighter not guilty of misconduct - where nominated officer did not endorse that finding and made recommendations to Commissioner that misconduct was established and disciplinary action should be taken - where Commissioner intended to make finding as to whether firefighter guilty of misconduct - where s 45(5) requires that if a firefighter is found not guilty of misconduct, the nominated officer must terminate any suspension immediately - whether Commissioner has power to make finding as to guilt - whether nominated officer has power to overturn the decision of the formal inquiry officer - Commissioner and nominated officer do not have power to make finding as to guilt or otherwise of misconduct

LEASE - hotel lease - construction of term prohibiting removal of a licence - whether assignee of lease entitled to transfer poker machine entitlement to third party without lessor's consent HOTELS AND GAMING - authorisation to keep and operate poker machines - whether poker machine entitlements a license for the purposes of lease - Gaming Machines Act 2001, ss 15, 56

TRADE AND COMMERCE - misleading and deceptive conduct - representations as to future matters - Fair Trading Act 1987 (NSW), s 41 and Trade Practices Act 1974 (Cth), s 51A - whether necessary to show existence of reasonable grounds in fact relied upon by representor - not necessary to decide whether Sykes v Reserve Bank of Australia (1998) 88 FCR 511 and City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94 should not be followed. TRADE AND COMMERCE - misleading and deceptive conduct - representations as to future matters - Fair Trading Act 1987 (NSW), s 41(2) effects a reversal of the legal or persuasive onus of proof.

SUCCESSION - Will, Probate and Administration - Construction and effect of testamentary dispositions - ex parte application for judicial advice under the Trustee Act 1925, s 63 turned into an administration suit - non-charitable purpose trust - failure of earlier distribution - whether subsequent distribution accelerated

[NUISANCE] - stormwater runoff onto plaintiff's land - whether unreasonable interference with enjoyment of the land - land in undeveloped state - whether drainage inadequate and caused wetting up of the land causing harm with consequence of invasion of protected species of frogs [STATUTORY DEFENCES] - whether Civil Liability Act 2002 applies - whether defendant acted in good faith - whether defendant's conduct justified or excused [DAMAGES] - whether mandatory injunction or whether damages an adequate remedy

APPEAL FROM LOCAL COURT - appeal against order dismissing claim for unpaid fees for architectural services - appeal against order upholding (in part) cross claim for the return of monies paid - whether Magistrate erred in law or failed to give reasons or adequate reasons - termination of contract for services - quantum meruit - notice of contention - reasonable market value for work done - restitution - denial of procedural fairness

ADMINISTRATIVE LAW - judicial review - procedural fairness - reasonably opportunity to be heard -a failure to be notified of proceedings - whether statutory scheme deems notice to have been given - Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 25(2), Consumer, Trader and Tenancy Tribunal Regulations 2009 (NSW), cl 50(2) STATUTORY INTERPRETATION - effect of regulation providing means of service - inconsistency between provisions - which provisions prevails - reading which permits an opportunity for party to be heard preferred over a reading which denies such an opportunity - Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 78(4); Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cl 50; Interpretation Act 1987 (NSW), ss 5, 76 TENANCY LAW - statutory grounds for termination of leave - Residential Tenancies Act (NSW), s 64

WILLS AND ESTATES - family provision claim - relationship with the deceased - estrangement - relationship after 1962 was very limited and there was only ever one face to face meeting - financial resources and needs of claimant - claimant's was effectively to refurbish a new debt-free home which was not appropriate, however smaller provision made - nature and extent of estate - competing claims or interests

CIVIL PROCEDURE - summary judgment application - loan conceded to be repayable - principles applicable to application for stay of judgment - HELD - summary judgment granted - stay of part of judgment sum conditional on payment into court of balance or other security - COSTS - costs orders made in relation to summary judgment application

PROCEDURE - evidence - late service of experts' reports - whether reports in reply or raising new issues - whether defendants entitled to rely on reports served in breach of orders - where different case raised on question of point of origin of fire - defendants not entitled to rely on reports

PROCEDURE - civil - summary disposal - strike out defence; application to - no reasonable defence - inappropriate to determine an unconscionability defence under the Contracts Review Act 1980 on application for summary judgment - pleadings - defective pleadings - strike out; application to - leave granted to amend pleading

PROCEDURE - civil - pleadings - strike out; application to - statement of claim - whether properly pleaded - whether cause of action had expired under the Limitation Act 1969

Appeal - civil - judgment or order; whether Magistrate wrongly found that the elements of the charge of hindering police under s 546C of the Crimes Act had been made out - whether Magistrate should have considered section 99(2) of the Law Enforcement (Powers and Responsibilities) Act 2002 in conjunction with s 99(3) of that Act in the circumstances - held that prima facie case against plaintiffs was not made out because police were not acting in the execution of their duty when conducting an arrest - plaintiff's conviction set aside.

LANDLORD AND TENANT - construction of lease - option to renew - whether lease required lessor to make payment on lessee's exercise of option to renew - whether such a result absurd EQUITY - lease - unpaid amount due from lessor - whether lessee entitled to recoup the amount by deduction from the rent - right of recoupment, set-off, abatement or reduction LANDLORD AND TENANT - whether the lessor was entitled to call upon the bank to pay the guarantee, after the expiration of the limitation period with respect to the debts due by way of unpaid rent - whether there was a negative stipulation, express or implied, precluding the lessor from calling upon the guarantee - Limitation Act 1969 (NSW), ss 24(1) and 63 WORDS AND PHRASES - "without deduction"

APPEAL - civil - notice of motion seeking removal from proceedings - not a party to the proceedings below - not directly affected by the relief sought or maintaining the decision of the Court below - damages sought not within the appellate jurisdiction of the court- Uniform Civil Procedure Rules 2005 (NSW) r 51.4 COSTS - costs sought on an indemnity basis - claim against abuse of process - no evidence demonstrating appellant's attention had been drawn to this factor - costs assessed on ordinary basis PROCEDURE - civil - judgments and orders - leave to appeal previously granted - Court did not deal with all matters of proceeding -attention drawn to the omission by solicitor - no further submissions necessary - restrictions on leave to appeal previously granted

APPEAL - expedition - delay after trial decision - expedition would displace another case - expedition refused - necessity to act promptly if reason for expedition.

CORPORATIONS - s 588FF Corporations Act - application by liquidator to extend time for making an application under s 588FF(1) in relation to two companies - where cause of delay due to complexity of companies' affairs - where entities identified as involved in the transaction of the proposed application had been notified and did not oppose the application - where an extension had already been granted in relation to one company but no previous application in relation to the other - HELD - application granted and in respect of earlier extension order which had been made (and not expired), variation made to earlier order

SUCCESSION - probate - caveat - whether there is some matter occasioning doubt as to whether the grant ought to be made - no question of principle

CIVIL PROCEDURE - application for stay of hearing pending application for leave to appeal interlocutory order - HELD - application refused in exercise of discretion - CORPORATIONS - application to set aside statutory demand on grounds that it defective and that genuine dispute/off-setting claim - HELD - statutory demand set aside

PRACTICE AND PROCEDURE - personal injury damages paid by defendant to plaintiff - claim for contribution pursuant to s5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 by defendant against employer - claim for contribution successful - whether pre-judgment interest payable on contribution should be calculated under s18 Civil Liability Act 2002 or s101 Civil Procedure Act 2005. COSTS - whether offer operated as an offer of compromise under Pt 20 r 20.26 Uniform Civil Procedure Rules 2005 - whether offer was "exclusive of costs" - meaning of words "exclusive of costs" in Pt 20 r 20.26(2) UCPR.

COSTS - court's control over solicitor's costs - Section 98(4) Civil Procedure Act - capping costs - Section 99(2) Civil Procedure Act - disallowing costs WASTED COSTS - expenditure incurred without reasonable cause - not recoverable EXPERT REPORTS - unnecessary - not reasonable to carry out the work to which the costs relate EVIDENCE - irrelevant - not reasonable to carry out the work to which the costs relate SOLICITORS - acting on behalf of executor - duties and responsibilities TRUSTS AND SUCCESSION - payment of costs of proceedings out of specific property or out of residue - Section 93 Trustee Act

APPEAL - civil - costs - general rule that costs follow the event - costs incurred due to adjourned hearing - both parties provided with opportunity to provide further written submissions in light of result - party's failure to avail itself of the opportunity to do so - submission for exception to the general rule not based on point of law - challenge to costs order rejected APPEAL - civil - evidence - admission of evidence based on discretionary judgment of the trial judge - reasons provided for admission of evidence - reasons not recorded because court sound-recording equipment turned off - no further evidence provided by the appellant to supplement transcript - no error of law established TORTS - negligence - assessment of damages - Griffiths v Kerkemeyer damages - calculation based on average weekly earnings - whether calculations based on judge's "experience" - maximum amount of damages awarded for gratuitous care - Civil Liability Act 2002 (NSW) s 15(5)

COSTS - costs of trial - whether successful party's entitlement to costs should be reduced to reflect the fact that it recovered only a small proportion of its claim - costs of appeal - multiple issues - appellant obtained a substantial reduction of the judgment awarded at first instance but was unsuccessful on many of the issues that were argued COSTS - indemnity costs - appellant contended that it made Calderbank offer to respondent - whether respondent acted unreasonably in rejecting offer that would have resulted in a substantial variation to the parties' contractual arrangement PROCEDURE - civil - mediation - section 30 Civil Procedure Act 2005 considered - policy to encourage full and frank settlement discussions - appellant contended that offer of compromise made on day of and at venue of a court-ordered mediation but outside the mediation session - whether evidence inadmissible because it was evidence of a conversation that occurred "in a mediation session" or "within a mediation"

PRACTICE AND PROCEDURE - application brought by the plaintiff to pay moneys held by it into Court - determination of the amount of costs payable to the plaintiff for bringing the application - open offer in respect of its costs made by the plaintiff not accepted by one of the defendants

SUCCESSION - informal will - s 8, Succession Act 2006 - unexecuted document in form of will - whether intended to form will of deceased - whether deceased intended document "without more" to operate as his will - where deceased gave instructions to solicitor to prepare a new will - where deceased died before executing new will - deceased intended document to operate as his will only upon its execution - probate of informal will refused COSTS - whether unsuccessful plaintiff in probate action entitled to have costs paid out of estate

TRACING - personal liability for value remaining of misappropriated funds that can be traced into real property - tracing of misappropriated cheques into mortgage repayments made on real property - tracing through mixed fund - assessment of sum to be restored.

PROCEDURE - joinder of additional defendants shortly before hearing - application to have proceedings transferred to Supreme Court of Victoria - whether more appropriate that present proceedings be determined in the Supreme Court of Victoria - where interests of justice lie.

PROCEDURE - default judgment - application to set aside - proceedings for possession - whether arguable defence that contract unjust - asset lending

NEGLIGENCE - liability of occupier and employer - content of duty of care in each case - breach of duty of care - whether owner and operator of farm breached duty of care to plaintiff employee of contractor by failing to mark a hazard on one of its internal roads - plaintiff driving vehicle which collided with culvert and turned over - foreseeability of risk - adequacy of response by occupier of farm - NEGLIGENCE - breach of duty of care by employer - non-delegable duty of care - breach of duty by occupier of farm became breach of duty by employer. NEGLIGENCE - causation - whether failure to properly mark road hazard caused accident - whether speed of vehicle caused accident - whether plaintiff keeping a proper lookout. CONTRIBUTORY NEGLIGENCE - whether failure to wear seatbelt made any contribution to plaintiff's injuries. CROSS-CLAIMS - apportionment of liability between occupier of farm and employer - whether employer entitled to recovery from owner of farm of compensation paid to plaintiff - section 151Z(1)(d) Workers Compensation Act 1987 - terms of contract between occupier of farm and employer - whether employer breached terms of contract - if employer breached terms of contract whether indemnity clause effective to pass onto employer the farm owner's liability to pay damages to plaintiff. DAMAGES - calculation of damages against farm owner in accordance with Civil Liability Act 2005 - calculation of damages against employer pursuant to Workers Compensation Act 1987 - paucity of evidence as to economic loss - what approach to be followed by Court - plaintiff's entitlement to damages against farm owner to be adjusted by reference to s151Z(2) Workers Compensation Act 1987.

PRACTICE AND PROCEDURE - privilege - whether common law or Evidence Act 1995 applies - s 131A, Evidence Act - Evidence Act and not the common law applies where the objection to inspection taken by person required to produce documents on subpoena or notice to produce - s 131A, Evidence Act only applies where person objecting to disclosure on ground of privilege is same person required to produce document PRACTICE AND PROCEDURE - privilege - waiver - no question of principle

Criminal law - Sentencing - murder - offence committed during course of robbery in circumstances of aggravation - "stale" offence

Appeal under Land and Environment Court Act - leave to appeal - no arguable case demonstrated

Adjournment - application refused - no question of principle.