Cases and authorities

COSTS - application for costs of main proceedings and motion to vary - application for order in relation to hearing fee - consideration of import of legal Aid Commission Act s 42 - HELD - costs order in relation to main proceedings - no further order as to costs and no order as to hearing fee

COSTS - application for indemnity costs in reliance on Calderbank offers and offer of compromise - application for interest on costs - HELD - indemnity costs appropriate in respect of first defendant - subject to further order, costs of proceedings after joinder of second defendant paid as to 50% on an indemnity basis and 50% on a party/party basis - interest ordered on costs and disbursements incurred by defendants during course of proceedings

COSTS - application by unitholder under s 93(2) of the Trustee Act 1925 (NSW) for costs of appearance on judicial advice application - HELD - unitholder's costs to be paid out of Fund

General Steel - Banking - General principles - Fiduciary obligations - Whether cross-claims disclose reasonable cause of action - Cross claimant's members of a group of approximately 300 people or entities who borrowed moneys for the purpose of investing in managed investment scheme - Plaintiff bank seeks to recover amounts owing under their respective loan Deeds - Prescriptive fiduciary duties unknown to Australian law - Unconscionability - Vicarious liability - Contracts Review Act

PROCEDURE - civil - pleadings - statement of claim - strike out; application to - whether plaintiff had standing to commence proceedings - plaintiff did not have leave to bring proceedings - matter is res judicata between the relevant parties

CONVEYANCING:- fraudulent conveyance - intention to defraud creditors - avoiding transfer - Conveyancing Act 1919 s37A. CORPORATIONS:- winding-up - leave to proceed nunc pro tunc against company in liquidation - Corporations Act 2001 (Cth) s 471B.

PROCEDURE - Civil - Judgments and orders - Enforcement - Whether there has been compliance with Heads of Agreement

COMMERCIAL ARBITRATION - enforcement of award - no issue of principle

SUCCESSION - wills - executors and trustees - application for judicial advice - plaintiff not executor - no grant made

CORPORATIONS - application under Corporations Act 2001 (Cth), s 459G to set aside statutory demand - refusal of adjournment where plaintiff failed to appear - where plaintiff failed to appear on numerous occasions -where proceedings not properly commenced - where plaintiff failed to indicate in supporting affidavit any grounds on which there might be genuine dispute as to the debt the subject of the statutory demand - where no prima facie merit to application - application dismissed

CIVIL PROCEDURE - application for summary judgment pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) - HELD - facts disclose triable or arguable issue in defence of the claim - application dismissed

COSTS - HELD - indemnity costs order made against defendant

JUDICIAL REVIEW of Adjudication Determination - certiorari- "related goods and services" - construction contract- basic and essential requirements- jurisdictional error- jurisdictional fact- calculated otherwise than by reference to the value of the work- appointment of adjudicator- notification of appointment

WILLS AND ESTATES - family provision claim - competing claims or interests - contributions by the plaintiff - obligations owed by deceased - relationship with the deceased - nature and extent of estate - charges on property - deceased's daughter sole beneficiary - daughter bankrupt - deceased severed joint tenancy with plaintiff prior to death - deceased and plaintiff living separately and apart under the one roof - plaintiff provided some financial support for deceased and cared for deceased until his death - whether deceased had a moral obligation towards plaintiff.

CRIMINAL LAW - sentence appeal - plea of guilty to offence of supply indictable quantity of prohibited drug - use of statistics - sentence not manifestly excessive - taking into account time served - sentence should be backdated unless good reason for not doing so - error but no lesser sentence warranted.

ADMINISTRATIVE LAW - Administrative Decisions Tribunal - judicial review - whether judicial review proceedings where appeal by leave available abuse of process LEGAL PRACTITIONERS - disciplinary proceedings - time bar LEGAL PRACTITIONERS - disciplinary proceedings - meaning of unsatisfactory professional conduct

PRACTICE AND PROCEDURE - judgments and orders - construction of order - effect of alleged contravention of UCPR - consent order in terms that restrict, or purport to restrict any disclosure of the terms of the judgment or order PRACTICE AND PROCEDURE - stay of proceedings - applicant has onus of putting forward a basis on which the stay can be granted that is fair to both parties

APPEAL - civil - competency of appeal - whether value of land on which trespass occurred is relevant - amount of damages recoverable - District Court Act 1973 (NSW), s 127(2)(c)(ii). PROCEDURE - civil - competency of appeal - whether affidavit as to "material facts" demonstrated the likely amount of damages - whether the material allowed the Court to be satisfied that the appellant has reasonable prospects of obtaining a variation in the judgment below in an amount equal to or exceeding the statutory figure - District Court Act 1973 (NSW), s 127(2)(c); Uniform Civil Procedure Rules 2005 (NSW) r 51.22 TORTS - intentional - assault - whether reckless conduct sufficient to prove assault - whether apprehension of applicant reasonable. TORT - invasion of privacy - whether tort of unjustified intrusion on personal privacy - whether sufficient factual findings. TORTS - trespass to land - implied right of a person having legitimate business with the occupier of premises to enter and remain until asked to leave - whether negated by conduct of the applicants - whether reasonable steps taken to notify potential visitors that no licence should be assumed was sufficient, absent a lack of subjective awareness of notice.

DAMAGES - torts - negligence - dust diseases - split assessment -whether the subsequent award of general damages should have been reduced by the allowance for general damages contained within the earlier award - Dust Diseases Tribunal Act 1989 (NSW), s 11A. WORDS AND PHRASES - "provisional damages", "further damages" - Dust Diseases Tribunal Act 1989 (NSW), s 11A, Dust Disease Tribunal Rules, r 5.

GUARANTEE - Construction - whether bank owed guarantors a contractual obligation to maintain confidentiality - whether express contractual obligation of confidentiality GUARANTEE - Construction - whether implied contractual obligation of confidentiality - term implied in law - obligation of confidentiality implied into contract between banker and customer but not into contract between banker and guarantor GUARANTEE - Construction - whether implied contractual obligation of confidentiality - term implied in fact - test from BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 not satisfied - obligation of confidentiality not necessary for business efficacy nor so obvious that it goes without saying GUARANTEE - Construction - whether contractual obligation of confidentiality was a condition, such that breach gave rise to right to terminate - analysis of the reasoning in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 - whether mere possibility of detriment to the guarantor is enough to bring about discharge of the guarantee - effect of provision that guarantor's obligations are unconditional and not affected by anything that would otherwise release the guarantor GUARANTEE - Construction - whether contractual obligation of confidentiality was an intermediate term that had been breached in a sufficiently serious way to give rise to right to terminate - whether breach deprived the guarantors of substantially the whole benefit which it was intended that they should obtain from the contract CONTRACTS - Harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980 - Exclusion from contracts entered into in the course of or for the purpose of a business TRADE PRACTICES - whether conduct of bank towards guarantors in obtaining release and confirmation of enforceability of securities was unconscionable - Trade Practices Act 1974 (Cth) - Australian Securities and Investments Commission Act 2001 (Cth) - whether there was a substantial opportunity to negotiate the provisions of the release and confirmation of enforceability of securities - whether legal advice given was independent - whether legal advice given was adequate - whether unconscionable to take advantage of another's pressing need, even if the person who takes advantage has not brought about that pressing need - whether unconscionable to make provision of advance made conditional on executing release and confirmation of enforceability of securities - whether execution of release and confirmation of enforceability of securities was excessive price for advance CONTRACTS - Interpretation - Rules of construction - Contra proferentem rule - Ejusdem generis rule - drafting by stating a general principle and giving examples

PROCEDURE- judicial review- standing- whether a non-party to lower court criminal proceedings has standing to seek judicial review- Supreme Court Act 1970 s 69- broad standing to seek certiorari- declarations inconsistent with a lower court decision with regards to sentencing should not be made without disturbing the lower court order. JURISDICTION- District Court orders on appeal from Local Court- District Court judge's order stands in place of magistrate's if sentence is varied- powers of DCJ are the same as those of the magistrate- "noting" date of expiry of disqualification period formed part of DCJ's order. STATUTORY INTERPRETATION- Road Transport (General) Act 2005 s 188(2)(d)(ii)- Crimes (Appeal and Review) Act 2001 (NSW) s 68(2)- possible conflict between two provisions regarding the calculation of a period of disqualification from holding a driver's licence- provisions in statutes of the same legislature are construed to avoid conflict- unambiguous and specific provision to be preferred to broader and uncertain provision in another Act- when irreconcilable, later provision prevails- the two provisions in question could be read together- District Court judge's order was a jurisdictional error.

PRACTICE AND PROCEDURE - Interest on debts assigned at law - where no evidence debts incurred interest - such debts to bear interest at Court rates from demand date - where debt assigned bears contractual interest - entitlement to interest does not depend on demand - purpose of interest to compensate creditor - assignee entitled to interest at contractual rate. COSTS - Plaintiff succeeds on most but not all of claim - ordinary rule that costs follow event - whether plaintiff disentitled to costs as result within jurisdiction of District and Local Courts - commonality of proceedings justifies commencement in Supreme Court. COSTS - Where costs order made against employed legal practitioner - application to vary such order to indemnity basis and also against principal solicitor - absence of personal responsibility for matter on part of principal solicitor - employee solicitor an experienced solicitor - principal not to be made responsible for acts of employee solicitor in those circumstances.

DEFAMATION - whether matter complained of capable of conveying imputations pleaded by plaintiff - vice of formulating imputations by directly adopting the words used in the matter complained of - whether imputations adequately distil the act of condition allegedly attributed to the plaintiff by the publication

Costs

MORTGAGES - mortgagees remedies - possession of property - Farm debt Mediation Act 1994 - whether debt was a farm debt incurred by a farmer for the purpose of a 'farming operation' - farming operation not established COSTS - departing from the general rule - order for costs on indemnity basis

PROCEDURE - application to file cross-claim out of time - where Applicant's Defence had already pleaded proportionate liability provisions of Civil Liability Act - cross-claim seeks in the alternative to claim contribution pursuant to Law Reform (Miscellaneous Provisions) Act 1946 - whether loss and damage first suffered before or after 26 July 2004 - successive tortfeasors - whether same "damage" - discretionary considerations - leave granted to file cross-claim.

CONTRACTS - general contractual principles - repudiation - agreement to settle legal proceedings - party imposed time limit upon execution of settlement documents - whether imposition of time limit constituted repudiation PROCEDURE - civil - power of court to determine disputes concerning settlement and to make consequential orders - Civil Procedure Act 2005 (NSW), s 73

COSTS - substantial offer of compromise prior to trial - appellants did not accept offer - appellants unsuccessful at trial - appellants unsuccessful on appeal - respondent sought costs of appeal on an indemnity basis due to earlier offer of compromise - issues maintained on appeal in substance the same as those at trial - appellants to pay respondent's costs on an indemnity basis.

REAL PROPERTY - Leases - construction of "lessor's works" - works defined in lease as 'works described in the Plan and Specification' - plaintiff submits prior heads of agreement aid to construction - use of different terminology and provision in lease for mechanism to define lessor's works entails heads of agreement does not assist construction - representations said to be made by lessor to mortgagee as to lessor's works inadmissible as subjective understanding of mortgagee not a permissible basis for interpretation - sketch plan exchanged and initialed at time of execution of lease encapsulates works. REAL PROPERTY - Leases - lessee asserts variation of registered lease such that lessee to take over lessor's works with lessee's expenditure to be treated as prepayment of rent - discussions as to arrangements for lessee to perform works and for expenditure to be credited as prepayments of rent amount to personal agreement between lessee and lessor - if lessee can establish it paid moneys in relation to obligations of lessor, lessee would be entitled to set-off such sums as prepaid rent - insufficient evidence to establish that lessor did not perform its obligations and that its obligations were performed by lessee - claim against lessor fails - claim against mortgagee must also fail. REAL PROPERTY - Leases - mortgagee consents to grant of lease under (NSW) Real Property Act (1900) s 53(4) - s 53(4) does not render mortgagee liable to perform lessor's covenants - s 53(4) renders mortgagee bound by lease if mortgagee consents to lease before registration -whether mortgagee could be bound by oral agreement in respect of prepaid rent - oral agreement merely personal agreement between lessee and lessor and cannot bind mortgagee - in any event mortgagee only consented to lease as registered that did not include oral agreement. REAL PROPERTY - Leases - equitable estoppel - mortgagee said to be estopped from denying consent to oral agreement varying lease - no evidence mortgagee knew of alleged variation - no evidence as to parties proceeding on footing that agreement was varied - mortgagee did not remain deliberately silent - no evidence lessee reasonably relied on such belief - mortgagee not estopped from denying consent to variation. REAL PROPERTY - Leases - tenant's right of equitable set-off - exclusion by clear words - whether 'without deduction' constitutes such clear words - 'without deduction' apt to exclude common law right to deduct by way of recoupment - such words not sufficiently clear to capture equitable set-off - in circumstances of present case, where express term of oral agreement provided for lessee to be credited as prepaid rent with payments for works within responsibility of lessor, 'without deduction' did not exclude right to equitable set-off - whether set-off available against mortgagee - lessee's personal claim against lessor cannot bind mortgagee in possession - mortgagee in possession has independent statutory right to enforce rent covenant against lessee unaffected by personal claim of lessee against lessor - mortgagee entitled to recover rent accruing to tenant after notice of mortgage regardless of prepayments to lessor prior to mortgage.

DAMAGES - tort - trespass - what constitutes reasonable rent for purpose of damages - questions of proof where records incomplete - no issue of principle

CORPORATIONS - winding-up - winding-up in insolvency - plaintiff seeks winding-up on basis of non-compliance with statutory demand - where defendant has leave under s 459S Corporations Act 2001 (Cth) to dispute existence or amount of the plaintiff's alleged debt - whether plaintiff a creditor - advances initially made as subscriptions for shares to be issued - parties later agreed that advances should be treated as a loan until a shareholders' agreement entered into or shares issued - loan has become repayable as reasonable time for entering into shareholders' agreement and issuing shares has long passed - defendant owes plaintiff sum claimed - defendant insolvent and winding-up ordered

PRACTICE AND PROCEDURE - Plaintiff seeks to use affidavit evidence filed by defendant pursuant to asset preservation order in security of costs application - whether leave required to use evidence for purpose other than for what it was given - use to be made of evidence in same proceeding relevant factor - nature of asset preservation order and connection with security for costs order also relevant factor - leave granted.

PRACTICE AND PROCEDURE - Expert evidence - cross-claimant seeks direction to adduce expert evidence at trial - cross-defendant contends expert evidence is suboptimal - not impossible that evidence will be of use at trial - no evidence that evidence caught cross-defendant by surprise - obligation of cross-defendant as much as cross-claimant to seek direction - report served almost concurrently with joinder of cross-defendants - no evidence of prejudice - direction made.

CRIMINAL LAW - plea of guilty to manslaughter in satisfaction of indictment for murder - killing of child by her mother during psychotic episode - substantial impairment

Costs

ADOPTION of referee's report - Insurance contract - Section 45 Insurance Contracts Act- Exclusion clause - Meaning of "effected" - Named insured

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offence - preliminary hearing - application for extended supervision order - "unacceptable risk" test - construction of term "criminal history" - manner and extent to which admissions of uncharged sexual misconduct may be taken into account - intellectual disability - dispute as to accommodation conditions - interim supervision order granted

CRIMINAL LAW - sentence - murder - plea of guilty - objectively serious offence - aggravating factors - mitigating factors - no prior criminal record - 25% utilitarian discount - early plea - offence above mid-range - provocation not established

PRACTICE AND PROCEDURE - notices of motion seeking particulars and discovery - order in which issues are to be dealt with.

FORMAL ORDERS

CORPORATIONS - winding up - winding up in insolvency- whether special circumstances justify extending the time for determining the plaintiff's application that company be wound up in insolvency pursuant to s 459R(2) of the Corporations Act 2001 (Cth) - special circumstances of case justify extension of time - where delay in the provision of up-to-date financial information relating to the affairs of the company - where delay in determining application attributable to parties preparing material to proposed amended claim seeking winding-up on alternative grounds pursuant to s461(1)(e) and (f) of Corporations Act 2001 (Cth) CORPORATIONS - winding up - winding up in insolvency and on other grounds - whether plaintiff should have leave to amend originating process to seek winding-up on other grounds - applications for winding up in insolvency and applications for winding up by the court on other grounds may be brought in the same proceedings - desirable that all aspects of controversy be determined in the one proceeding - leave given to amend originating process LEGAL PRACTITIONERS - where timetable consented to in hope winding-up proceedings would be automatically dismissed after six months pursuant to s 459R of Corporations Act - obligations of legal practitioners to ensure determination of real issues and avoid ambush

Family provision order under Chapter 3 of NSW Succession Act 2006 - first Plaintiff former spouse of deceased- second Plaintiff son of the deceased - Plaintiffs each self-represented - Defendant is NSW Trustee & Guardian, to which Letters of Administration granted - whether factors warranting making of first Plaintiff's application - competing claimant widow of the deceased.

Family provision order sought by two daughters of deceased under the Family Provision Act 1982 - Whole estate left to son who looked after deceased - Whether jurisdictional issue established and if so, nature and quantum of provision to be made.

CONTRACT - election - whether by providing account statements to borrowers debiting interest at lower contractual rate and accepting payments of that interest lenders made unequivocal election to charge interest at lower rather than higher rate. ESTOPPEL - promissory estoppel - whether lender's conduct in respect of two loan facilities was capable of inducing borrowers to form assumption that lender would not charge interest at higher contractual rate in respect of other facilities.

JUDICIAL ADVICE - application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - HELD - judicial advice given

First Defendant did not enter an appearance or file a defence to statement of claim - Judgment on issue of liability entered in favour of the Plaintiff, against the first Defendant, leaving assessment of damages sought against the first Defendant outstanding - No appearance by, or on behalf of, the first Defendant on trial for assessment of damages - Whether appropriate to hear assessment of damages claim pursuant to UCPR rule 29.7

Building and Construction Industry Security of Payment Act 1999 (NSW) - ss 14, 16 and 17 - where claimant gives notice of intention to apply for adjudication prematurely - notice invalid - adjudicator's jurisdiction not enlivened

DEFAMATION - form of imputation pleaded by plaintiff - whether imputation adequately distils any defamatory sting allegedly directed at the plaintiff

GUARANTEE - bank loan to company - charge over company's assets as security - charge unregistered - liquidation of company - charge void as against liquidator - guarantee of loan by sole director and shareholder of company - whether failure to register charge entitled guarantor to discharge - exemption clause in guarantee

DEFAMATION - whether imputations pleaded by plaintiff capable of being conveyed by matter complained of - form of imputation - imputation including the phrase "Ponzi scheme"