Cases and authorities

TRADE PRACTICES - misleading or deceptive conduct - proceedings for payment of progress claim pursuant to s 13 of the Building and Construction Industry Security of Payments Act 1999 - whether appellant was misled in failing to serve in time a payment schedule under s 14 of the Act - whether findings of the primary judge supported by the weight of the evidence - whether primary judge considered irrelevant matters.

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - unacceptable risk of committing a serious sex offence if not supervised - extended supervision order

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - unacceptable risk of committing a serious sex offence if not supervised - extended supervision order

PRACTICE AND PROCEDURE - Lengthy litigation between siblings - Notice of motion seeking contempt of court charges - Motion in response seeking summary dismissal of contempt charges - Opposed application to adjourn notice of motions - Party applying for adjournment did not comply with timetable for submissions and amendment of statement of charge - Adequate explanation for default in compliance of directions - No specific prejudice to other party - Motions can be heard and resolved relatively quickly - Preparation and appearance by other party noted but not determinative - Adjournment granted COSTS - Adjournment of hearing of notices of motion - Reserve final order for costs until hearing of the motion - Permits resolution of all costs to a single motion at the same time - Likelihood of single lump sum costs order

PRACTICE - subpoena - application to set aside for abuse of process - whether there is a legitimate forensic purpose underlying issue of the subpoena

CONTRACTS - intention to be bound prior to execution by both parties of formal written contract - intention of parties ascertained objectively - Masters v Cameron (1954) 91 CLR 353 CONTRACTS - equitable remedies - specific performance - whether sufficient acts of part performance - payment of rent in accordance with new lease sufficient part performance

PRACTICE AND PROCEDURE - Application for stay of execution of judgment - defendants have cross-claim against plaintiff on foot - defendants claim cross-claim may be stultified as execution of judgment will render them bankrupt -defendants/cross-claimants claim relief under oppression provisions of (CTH) Corporations Act 2001 - oppression claim should be directed at plaintiff's directors - claims cannot result in plaintiff becoming liable to pay defendants money - no mutuality - stay refused.

CONTRACT - general contractual principles - offer and acceptance - first party alleges he provides advance to assist in funding purchase of property by others - whether agreement to repay the funds advanced to first party or whether first party agreed to receive other benefits for advance - HELD: no agreement to repay funds advanced - TRUSTS AND TRUSTEES - resulting trust - constructive trust - allegations of resulting trust and constructive trust arising from first party's advance of funds to purchase property in the names of others - whether contrary agreement - HELD: no resulting or constructive trust.

EMPLOYMENT - contract of employment - interpretation - misconduct - summary dismissal; DAMAGES - loss of opportunity damages - necessity to identify breach upon which loss of opportunity is to depend

ADMINISTRATIVE LAW - purported reference of a question of law from the Administrative Decisions Tribunal - consent orders for remitter to single judge - doubt expressed as to capacity to remit to single judge by consent - question is a conclusion of fact, not a question of law and is not answered

MORTGAGES - forged mortgage - security for amount payable by way of restitution - whether mortgagee entitled to an order for possession based on failure to pay before order for restitution made COSTS - general rule that costs follow the event - multiple issues - plaintiff successful in obtaining order for restitution - defendant otherwise successful - indemnity costs - Calderbank letters INTEREST - amount ordered by way of restitution - appropriate rate of interest - whether payable for period before defendant aware of plaintiff's payment under mistake - whether payable for period after plaintiff's failure to accept Calderbank offer

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - judicial review - jurisdictional error - whether adjudicator fell into error by finding entitlement to payment other than in accordance with the mechanisms of the contract - natural justice and procedural fairness - whether adjudicator failed to afford natural justice or act in good faith by omitting reference to materials provided to him, but not brought to his attention by parties.

PRACTICE & PROCEDURE - pleadings - application to strike out statement of claim - UCPR 14.7, 14.8 and 14.28 - application dismissed

Two different proceedings, in each of which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made - An order was made that the proceedings be heard consecutively, with the evidence in one being evidence in the other - first application was made by the de facto wife of the deceased - second application was made by three Plaintiffs, each of whom is a natural child of the deceased - leave granted to discontinue one Plaintiff's proceedings and made no order as to costs as she was adopted by other persons after her birth - the Defendant in each proceedings is a solicitor, the executor named in the Will of the deceased to whom Probate was granted

CRIMINAL LAW - application for leave to appeal against interlocutory judgment or order - s 5F(3) Criminal Appeal Act 1912 - charge of wounding with intent to cause grievous bodily harm - plea of guilty entered - application for leave to withdraw plea of guilty - application refused - claim of inadequate legal advice - strength of prosecution case - unavailability of defence of accident - accident not previously raised - no error in application of principles - no error in rejecting evidence tendered on behalf of applicant - leave to appeal refused.

CRIMINAL LAW - Sentencing - Two sexual offences with same victim and offender - Two months apart - Accumulation of sentences - Principle of totality - Significant elements of commonality between offences - Nature of relationship between offender and victim - Nature of the conduct and circumstances of offences - Offender's subjective case - Sentences manifestly excessive.

CRIMINAL LAW - appeal against sentence - whether sentencing judge failed to have proper regard to the sentencing principles relating to mental illness and failed to give proper weight to the mental illness of the applicant when sentencing him - no error in the way the sentencing judge took account of the applicant's mental condition CRIMINAL LAW - appeal against sentence - where sentencing judge failed to have proper regard to the principle of totality - whether sentencing judge failed to consider that the steal from dwelling offence could have been dealt with in the Local Court - where sentence was manifestly excessive - miscarriage of the exercise of the sentencing discretion - overall sentence reduced from 8 years and 10 months to 6 years and 11 months

CONTRACT - whether primary judge erred in finding that the appellants promised for consideration to sign forms of guarantee CONTRACT - guarantees - whether form of guarantee of obligations under building contract covered oral variations to building work when building contract required variations to be agreed in writing CONTRACT - building - whether Home Building Act requires variations as to the work to be performed under a contract to be in writing - Home Building Act 1989 s 6 and s 7 considered TRADE PRACTICES - misleading and deceptive conduct - builder contended that directors of property owner represented that they would sign forms of guarantee when they had no intention of doing so - whether primary judge erred in finding that representations made and constituted misleading and deceptive conduct

PROCEDURE - interlocutory issues - discovery - destruction of documents (mobile phones) containing relevant material in defiance of known orders for discovery - failure to comply with directions of the Court - abuse of process - power to strike out or limit plaintiff's claim - whether proportionate response - Civil Procedure Act 2005 (NSW), ss 56-61. APPEAL - discretionary orders - re-exercise of discretion. PROCEDURE - discovery - form of discovery - UCPR, Pt 21 provides the framework for discovery - no provision in UCPR for order for general discovery.

EVIDENCE - admissibility - US Marine Corp demonstration video of knife attack- s 137 Evidence Act

PRACTICE AND PROCEDURE - Defamation - Uniform Civil Procedure Rules - Rule 33.4 - Notice of motion to set aside interlocutory subpoenas - Whether subpoenas an abuse of process - No legitimate forensic issue identifying any non-plaintiff company subject to any defamatory imputation - No legitimate forensic question that plaintiff is not an excluded company without adducing evidence that such an issue exists - Subpoenas set aside except for one amended subpoena containing legitimate purpose - Costs in the cause when motion heard

CONTRACT - contract for sale of business - construction of contract - whether contract was repudiated - whether specific performance available to vendor - no question of principle - COSTS - whether party entitled to indemnity costs where successful argument was introduced for the first time in submissions following close of evidence.

SENTENCE FOR CONTEMPT - Repeated failure to comply with the Court's orders- Relevant factors to be weighed on sentence- Purging of contempt- Dismissal of charge- Indemnity costs-

TRUSTS - whether plaintiff's interest in real property at time of sale held on trust for cross-claimant and second cross-defendant - whether proceeds of sale of real property held on constructive or implied trust - HELD - beneficial interest in real property held at all times by plaintiff/first cross-defendant - plaintiff liable to pay portion of proceeds of sale to defendant/cross-claimant on failure of joint endeavour - no need to impose constructive trust - DE FACTO RELATIONSHIPS - application for adjustment of property interests pursuant to s 20(1) of the Property (Relationships) Act 1984 (NSW) - HELD - no adjustment warranted in light of conclusion on constructive trust claim

CORPORATIONS - winding up - statutory demand - application for order setting aside - debt is tax debt to which conclusivity provisions of Commonwealth law apply - application dismissed

Dispute between parties who were, formerly, in a relationship - Plaintiff filed a Summons seeking orders under section 66G Conveyancing Act 1919, for the appointment of trustees for sale of a property

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - sexual assault of niece aged 5 - offender then aged 20 - numerous other sexual acts - no charges or convictions - whether can be considered as part of criminal history - diagnosis of paedophilia and intellectual impairment - limited results from prison programmes - application for extended supervision order - whether offender was unacceptable risk of committing a serious sex offence if not supervised - whether offender should be permitted to live at home subject to the order - order made for 3 years - offender to live within closely supervised CJP Centre.

ADMINISTRATIVE LAW - judicial review of certificate of assessor in motor vehicle case - error in allowing head of damage involving less than 1% of award - discretionary refusal of relief - adequacy of reasons for rejection of applicant's medical evidence APPEAL - civil - application for leave to appeal - whether assessor gave adequate reasons for rejecting medical evidence - whether judgment below arguably erroneous - "no evidence" ground - whether constituting jurisdictional error - whether discretionary refusal of relief arguably erroneous PROCEDURE - civil - proceedings - discretionary refusal of judicial review - quick, cheap and just resolution of the real issues between the parties - public interest to be taken into account - Civil Procedure Act 2005 (NSW), s 56

LAND AND ENVIRONMENT - notice of redetermination of rent payable by appellant for licence of domestic waterfront Crown land issued by respondent Minister under s 143 Crown Lands Act 1989 - appellant appealed to Land and Environment Court - whether primary judge erred in law by misconstruing a document issued by the Independent Pricing and Regulatory Tribunal of New South Wales (IPART) upon which the Minister relied in making rental redetermination - proper construction of IPART recommendation for redetermination of rent

WORKERS COMPENSATION - appeal - appeal against finding of the Acting Deputy President - appeal limited to party being aggrieved by a decision of the Presidential member in point of law - denial of procedural fairness - matter proceeded on the papers - failure to consider oral hearing when matters of credit to be decided – whether parties acquiesced in review on the papers - whether failure of Acting Deputy President to take into account internal retrenchment policies of appellant constituted an error of law - no error shown – no denial of procedural fairness.

CIVIL - Medical negligence - Duty of Care - Foetal plaintiff when breach of duty occurred - Hospital owed duty of care to plaintiff which became enlivened upon her birth CIVIL - Medical negligence - Breach of Duty - Civil Liability Act s 5B - Risk of Harm - Risk of plaintiff being born with congenital varicella syndrome (CVS) - Foreseeable - Requisite state of knowledge - Treating doctor consulted specialist to determine if mother should be treated with immunoglobulin - Widely known risk of plaintiff being born with CVS between one and two per cent - Not Insignificant risk of harm - Reasonable person would have taken precautions - Expert evidence - Plaintiff's mother should have been advised about availability, benefits and been administered with immunoglobulin - No evidence of possible serious adverse effects - Defendant breached duty of care CIVIL - Medical negligence - Breach of Duty - Whether defence under s 5O Civil Liability Act - Onus on defendant - Whether deferral of immunoglobulin injection pending serology results widely accepted by peer professional opinion as competent professional practice - Relevant exposure to chickenpox within 96 hour window for immunoglobulin treatment - Expert evidence that deferral of treatment only acceptable when serology results available within six hours - Defence not made out CIVIL - Medical negligence - Causation - Civil Liability Act s 5D - Whether, if administered, immunoglobulin injection would have been effective to prevent plaintiff's mother being infected with varicella - Particular harm - Congenital varicella syndrome - Whether plaintiff's mother would have accepted immunoglobulin treatment - Scientific and expert evidence - Research on comparable cohort of patients - Study quality issue - Differential dosage issue - Strike rate issue - Evidence of possibility only - Research and clinical practice on non-comparable cohort of patients - Evidence of effectiveness in different cohorts only - Probability of effectiveness in population circumstantial evidence of possibility of effectiveness in plaintiff - No causation EVIDENCE - Medical Negligence - Contemporaneous hospital and medical records more reliable and accurate source upon which to rely when making findings of fact - Honest and truthful witnesses - Frailty of human recollection over time when partisan interest in an outcome EVIDENCE - Medical negligence - Unchallenged evidence plaintiff's mother would have accepted immunoglobulin treatment - Evidence not illogical or inherently improbable - Evidence accepted

EVIDENCE - admissibility - motive- s 137 of the Evidence Act 1995

TRUSTS - Trustees - Application for judicial advice - trustee seeks advice as to institution and continuation of proceedings and obtaining litigation funding - reasonable grounds for thinking proceedings have prospects of success - proceedings if successful would bring commercial benefits to beneficiaries - trustee acting reasonably and prudently in bringing proceedings - without litigation funding from a beneficiary, trustee will not bring proceedings - not unreasonable that beneficiary funding litigation receives financial reward - trustee wishes to institute parallel proceedings in New South Wales because of exclusive jurisdiction clause and cost savings - New Zealand courts not unfamiliar with Australian law - institution of proceedings in New South Wales not unreasonable or imprudent in context of pursuing the interests of the trust as a whole.

REAL PROPERTY - Contract for the sale of land - purchaser fails to attend settlement - purchaser unable to be contacted - contract validly terminated, deposit forfeited. PRACTICE AND PROCEDURE - document served in accordance with agreement - purchaser unable to be contacted - contract for sale of land provides that service on party's solicitor is sufficient service - service sufficient under UCPR r 10.6.

PRACTICE AND PROCEDURE - UCPR, r 7.17 and 7.18 - parties generally - appointment of tutor - party seeks appointment of a tutor for an opposing party, who has no assets - questions of: how such a tutor will be found; how the services of such a tutor will be funded; and whether such a tutor can also act as the solicitor in the proceedings.

PROCEDURE - costs - appeals as to costs - appeal against decision of costs assessor following termination of a conditional costs agreement - s 208L Legal Profession Act 1987

CORPORATIONS - winding up - application for winding up in insolvency - originating process served in another State without compliance with Service and Execution of Process Act - whether that omission fatal - power of court to dispense with service - where defendant received originating process and all other documents, filed notice of appearance and was represented by counsel at hearing - case for dispensing with service established - then not relevant that Service and Execution of Process Act not complied with - winding up order made

PROCEDURE - application to set aside default judgment - whether adequate explanation for not defending - whether bona fide ground of defence disclosed. GUARANTEE - election of mode of enforcement by creditor - property given as security for loan facility - guarantees given in respect of loan - creditor entered into possession of property - property unsold - creditor seeking to enforce against guarantors while in possession - whether creditor bound by agreement not to pursue guarantee before selling property - whether guarantee unjust.

CRIMINAL LAW - conviction appeal - dealing with money intended to become an instrument of crime - whether same conduct can constitute the intended crime - identification of intended crime - manner in which charge particularised - Criminal Code (Cth), s 400.5 WORDS & PHRASES - "instrument of crime" - "deals with money" - "physical elements" - Criminal Code (Cth), ss 400.5(1), 400.1(1)

APPEAL - criminal - review of bail application - whether primary judge sitting in Court of Criminal Appeal CRIMINAL LAW - appeal - bail pending appeal PROCEDURE - criminal - jurisdiction - constitution of Court of Criminal Appeal - whether primary judge sitting in Court of Criminal Appeal - power of the Court to grant bail - power to review the bail determination of primary judge - Bail Act 1979 (NSW), s 30; Criminal Appeal Act 1912 (NSW), ss 3, 22 WORDS & PHRASES - "special and exceptional circumstances" - Bail Act 1979 (NSW), s 30AA

CRIMINAL LAW - appeal against sentence - supply of large commercial quantity of prohibited drugs - whether applicant's role as "broker", with no managerial function, entitled him to a finding of below the mid-range of objective seriousness - applicant received only minimal payment for his "services" - whether applicant had a legitimate grievance arising from disparity of sentences of co-accused - whether parity principle with respect to non-parole period infringed - finding of special circumstances made - proportion of non-parole period to head sentence in error - appeal allowed in part

CRIMINAL LAW - appeal against sentence - where sentencing judge erred in finding that the case fell somewhere higher up the scale than the Henry range - no error by sentencing judge in terms of parity with co-offender or consideration of the applicant's affectation by drugs and alcohol at the time of the offence - no error by sentencing judge in finding that the lack of harm to the victim was not a mitigating factor - lesser sentence warranted in law

APPEAL - civil - notice of appeal - leave required to appeal from interlocutory orders and questions of costs - submitting appearance by decision-maker in judicial review proceedings contested by active respondent does not warrant summary judgment

APPEAL - civil - notice of appeal - leave required from costs orders - appeal struck out as incompetent - parties wrongly joined to judicial review proceedings - Land and Environment Court no authorised to deal with independent claim for breach of confidence - indemnity costs awarded after erroneous joinder challenged - no error of principle

PROCEDURE - civil - appeal - standing - application to dismiss strike out of appeal on motion of party lacking standing - whether grantee of licence which had since been assigned to third party retains standing to resist appeal from judgment below

APPEAL - offence - appeal limited to question of law alone - point not argued by parties - questions of construction of statute ENVIRONMENT - prosecution - smoke-free areas - enclosed public places - Smoke-Free Environment Act 2000 (NSW); Smoke-Free Environment Regulation 2007 (NSW) STATUTORY INTERPRETATION -purposes and objects of statute - statutory language to be given a meaning consistent with the purpose of the provision - statute not to be construed according to dictionary definitions of individual words - Smoke-Free Environment Act 2000 (NSW) WORDS & PHRASES - "walls"; "includes"; "directly"; "opens directly to the outside"; "gaps in walls" - Smoke-Free Environment Act 2000 (NSW); Smoke-Free Environment Regulation 2007 (NSW)

NEGLIGENCE - safe system of work at factory - contract worker injured when compartment door of plastic thermoforming machine springs open under pressure - power to spindle inadvertently left on by worker thereby creating pressure on door - whether occupier breaches duty by failing to install an automatic switch shutting off power - whether occupier breaches duty by failing to instruct worker to use emergency buttons. CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence by failing to turn machine off before opening compartment - whether primary Judge's apportionment of responsibility should be disturbed.

PRACTICE AND PROCEDURE - Plaintiff applies for determination of separate questions - matters on foot involving parties to present application in Common Law and Equity Divisions - proposed separate questions discrete and not manifestly unsuitable for preliminary determination - issue whether valid and effective removal of trustee occurred - practical issue is whether issue should be resolved on final basis in Equity or Common Law proceeding - Common Law proceedings set down for interlocutory hearing on 29 September - inappropriate to pre-empt hearing by making orders in Equity Division dealing with same issues.

CONTRACT - deed of agreement to undertake joint venture - whether terms of deed evidence intention to have legal effect - whether terms of deed sufficiently certain for deed to have legal effect - agreement for loan - terms of agreement - whether agreement to defer payment came into existence - whether individual liable for debt advanced to company where individual admits to personal liability for debt - factual inquiry, no issue of principle.

STAY OF PROCEEDINGS - stay on terms - extent of court's discretion - stay unless and until security for costs provided - overriding purpose of litigation - Civil Procedure Act 2005 ss 56, 67. COSTS - security for costs - basis of jurisdiction - inherent power - impecuniosity of natural person plaintiff not determinative - Civil Procedure Act 2005 ss 56, 67 - Uniform Civil Procedure Rules 2005 r 42.21.