Cases and authorities

COSTS - Appeal - Appellant succeeds on one sub-issue but appeal dismissed - Whether orders should be made dealing with the costs of that sub-issue. PROCEDURE - Application to vary costs orders made on appeal - Whether supported by UCPR 36.16(3) or 36.16(3A).

APPEAL - civil - appeal limited to an erroneous decision with respect to a matter of law - whether appeal court can make findings of fact - whether finding as to repudiation of contract involved findings of fact. CONTRACT - building - termination - repudiation - whether invalid notice under the clause of the contract constituted repudiation of the contract - whether builder could accept the repudiation.

PROCEDURE - Security for costs - Application for leave to appeal - Whether prospects of success sufficient.

INJUNCTIONS - Undertakings given by defendants not to dissipate, remove or encumber property or assets - distinction between Mareva injunctions and injunctive relief to preserve subject matter of proprietary claims discussed - defendants seek variation to allow sale of real property - issue as to application of surplus from sale - whether surplus to be held in accordance with existing undertaking or released to fund defendants' defence - original undertaking contemplated defendants' would not be precluded from paying reasonable legal expenses - proposed expenditure of proceeds on legal expenses small in regards to quantum of case -undertaking varied.

Interrogatories

CORPORATIONS - whether order for production should be limited to exclude documents subject to implied undertaking or otherwise - HELD - order for production overrides implied undertaking - order for production limited to exclude documents obtained under the Mutual Assistance in Criminal Matters Act 1987 (Cth) in the absence of consent from Attorney-General to their production - COSTS - Applicants to pay costs of the liquidators

SECURITY FOR COSTS - Applicant relies on corporate impecuniosity ground - no evidence to satisfy ground - strength of case - proportion of costs to issues in dispute small - great delay by defendant in bringing application - no evidence as to quantum - application refused.

PRACTICE AND PROCEDURE - solicitors' lien - unpaid costs - s728 of the Legal Profession Act 2004 - conduct of parties - what conditions appropriate to "satisfactorily secure the solicitors' unpaid costs.

CRIMINAL LAW - Recklessly causing grievous bodily harm - Sentencing - Whether accused denied procedural fairness by failure to warn of increase from "tentative" view during submissions - Resentence

CRIMINAL LAW - Supply of prohibited drug - Sentencing Appeal - Whether sentencing discretion fettered in assessment of isolated act of supply - Whether sentencing judge erred in not accepting applicant drug user prior to arrest - No appellable error in finding of fact by sentencing judge - Error in giving no weight to the conclusion of two expert reports about ongoing psychological management - Sentence quashed and resentenced

PRACTICE AND PROCEDURE - Liberty to apply - order of Court of Appeal reserves liberty to apply to vary orders where changing circumstances render orders otiose - Court of Appeal order substantive not merely machinery - liberty to apply does not allow for substantive variations of rights.

CORPORATIONS - application for termination of liquidation - company returned to solvency after deed of company arrangement

ADOPTION of referee's report - Extension of time claims - Delay costs - Principles in Chocolate Factory - Brick by brick analysis - Approach in Kane - Retrospective analysis

CONTRACTS - General Contractual Principles - Offer and Acceptance - undertakings proffered in defendants' written submissions - accepted by counsel for plaintiff - whether conditional upon acceptance of defendants' proposed orders that the proceedings be otherwise be dismissed and each party bear their own costs

GUARANTEE:-of an advance to a named person - whether advance made at all or to that person - whether lender's costs concerning the guarantor's lapsing notice relating to the lender's caveat are costs "relating to and in connection with...any variation or discharge" of a security within the meaning of those words in the loan agreement.

CORPORATIONS - oppression suit - plaintiff objects to parts of defences raising allegedly wrongful conduct of plaintiff's principal as a director - where that conduct apparently not known to alleged oppressors - whether fact of such unknown conduct relevant to question of oppression - whether relevant parts of defences should be struck out PROCEDURE - subpoenas - whether certain parts of subpoenas should be set aside as oppressive or irrelevant - whether other subpoenas should be set aside as premature

CORPORATIONS- powers of ASIC- short minutes were to be filed in consequence of a successful cross-appeal- ASIC issued an instrument which varied the list of exemptions from sections of the Corporations Act (Cth) including a section relevant to the cross-appeal- what is the effect of the instrument on the Court's orders?- whether an ASIC instrument can retrospectively alter exemptions- instrument did not have retrospective effect and it is doubtful whether ASIC can make a retrospective instrument.

COSTS - Application to vary costs order - Application brought within 14 days limited by UCPR 36.16(3A) but referring to wrong rule - Amended after 14 days to refer to correct rule - Whether indemnity costs justified by contract - Offers of compromise made - Whether court should make order excluding indemnity costs.

Vendor and purchaser- husband on contract as sole purchaser- purchaser's solicitor tells vendors' solicitor that wife will be joint transferee and to alter contract- vendors' solicitor does so- wife never intends that she be party to contract- purchaser's solicitor sued for breach of warranty of authority- verdict for defendant upheld on appeal.

PROCEDURE - costs - where proceedings in substance brought by estate agent against its principals to determine entitlement to commission - where estate agent in liquidation and proceedings initially framed as application by liquidator for the court's direction and judicial advice - but principals joined at the outset as defendants - where principals (defendants) held entitled to recover balance of deposit held by estate agent because agent did not establish right to commission - costs order to be made against estate agent as unsuccessful party - whether order should be made against liquidator - held not, there being no dereliction by the liquidator and given the substantive nature of the proceedings from the outset

CORPORATIONS - practice and procedure - appropriate orders to be made to give effect to reasons of Barrett J in Smartec Capital Pty Limited v Centro Properties Limited & Anor [2011] NSWSC 495 - costs

CONTRACT - construction - whether contract gives rise to a debt and whether interest is to be paid; Limitation Act 1969 - whether certain debts statute barred - allocation of payments for the purpose of confirmation under s 54; PLEADING - Common Indebitatus Accounts - Account Stated

PLEADINGS - whether any reasonable cause of action disclosed - claim arising out of unsuccessful private prosecution in the Local Court - no rational connection revealed between conduct complained of and relief sought - proceedings dismissed

[CONTEMPT] - [PRACTICE AND PROCEDURE] - application to rely on evidence served late - failure to comply with directions - application for adjournment to explain delay - issue of whether adjournment efficacious where application for order that defendant in contempt for failure to deliver up machinery pursuant to Consent Orders - and where order relied upon did not include notice required under Rule 40.7(3) of the Uniform Civil Procedures Rules 2005

PRACTICE AND PROCEDURE - application to file a second amended statement of claim

CORPORATIONS - application under s 459G Corporations Act 2001 (Cth) for order setting aside statutory demand - whether demand validly served in absence of an affidavit verifying debt - whether genuine dispute as to existence of debt or offsetting claim - whether "some other reason" established for the purposes of s 459J(1)(b) - HELD - demand not served in compliance with s 459E as no affidavit verifying that portion of the debt which was not a judgment debt - genuine dispute as to the proper construction of an order staying the execution of the initial costs order underlying the judgment debt and as to whether the debt had been released prior to the registration of the costs assessment certificates - therefore genuine dispute as to existence of the debt - entry into Deed of Release constitutes "some other reason" for the purposes of s 459J(1)(b) - statutory demand set aside

EQUITY - trusts - resulting trusts - where the plaintiff was the director of a company and purchased a property with a portion of the purchase price paid from the account of the company - whether the money paid from the company account was a loan to the plaintiff or whether it was to discharge a debt allegedly owed by the company to the plaintiff - presumption of resulting trust in favour of the company for the proportion of the purchase price paid by the company CORPORATIONS - insolvent transactions - whether the payment of the deposit and payment of the balance of the purchase price for the property by the company were insolvent transactions under the Corporations Act 2001 (Cth) - presumption of insolvency under s 588E(4) - whether the payments by the company were uncommercial transactions - whether a loan by a company is a "transaction" under the Corporations Act 2001 (Cth)

PROCEDURE - costs - no matter of principle

Mortgages - default - knowledge of mortgagors - credibility of witnesses - trial of action

DAMAGES - Personal injury - No point of principle - Measure of damages - Orthopaedic injuries and psychiatric condition - Economic loss - Whether residual earning capacity established - Onus - Individual circumstances in the labour market - Whether lost business opportunities

APPEAL - appeal from General Division of Local Court - appeal limited to question of law under s39 of Local Court Act 2007 - whether failure to provide adequate reasons - adequacy of reasons to be considered by reference to nature of appeal - issue was scope of agreement for the occupation of rooms in a medical centre - Magistrate found agreement as to one room but not as to the other - reasons adequate.

Order dismissing the Plaintiff's proceedings - On behalf of the Plaintiff, submitted that her costs should be paid out of the estate Defendant seeks costs of the proceedings payable by the Plaintiff - it is submitted that she should pay the Defendant's costs of the proceedings, in part calculated on the indemnity basis - Difference between costs of the proceedings and costs of obtaining administration

The Plaintiff, the widow of the deceased, sought a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to his children by his first marriage - Large estate and notional estate - Whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made

PRACTICE AND PROCEDURE - UCPR - Slip rule - Error in order. COSTS - Negligence - Judgment for both defendants on plaintiff's claim - Judgment for second defendant on first defendant's claim - Whether first defendant's prior knowledge of information relevant to second defendant's liability should result in award of indemnity costs against first defendant for entire matter.

Three proceedings heard together, with evidence in one, being evidence in the others - Plaintiff in first proceedings - son of the deceased - Plaintiff in second proceedings - former de facto wife of the deceased, and mother of the Plaintiff in the first proceedings - Plaintiff in third proceedings - daughter of the deceased with whom he had virtually no contact from shortly after the time of her birth - Defendant - widow of Deceased - Property held by the deceased and the Defendant as joint tenants

TORT - assault - malicious prosecution - false imprisonment

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - paranoid schizophrenic with Anti-Social Personality Disorder, and alcohol and cannabis dependence - unacceptable risk of committing a serious sex offence if not supervised - whether custodial programs suitable - extended supervision order.

Criminal Law - Sentencing - Child pornography - Commonwealth and State offences - Whether mental illness material cause of crime - Whether aggravating factor errors affected sentence - Whether sentence manifestly excessive

NEGLIGENCE - breach of duty of care - contract truck driver on site - incidents of grease being placed on truck steps - defendant should have warned others on site of criminal consequences and dismissal if caught - whether causation established - would warning have deterred perpetrator from further incident which caused fall and injury - application of s 5D(1) Civil Liability Act 2005 - not enough that warning might have had effect - on facts, not more likely than not that warning would have prevented injury - whether past and future economic loss correct assessed - post-injury earning capacity - on facts, half average weekly earnings of full-time males not correct measure - lesser post-injury earning capacity assessed.

FREEDOM OF INFORMATION - application for access to documents - appeal to Appeal Panel from review by Tribunal of agency's determination - Appeal Panel dismisses appeal - application for relief to Supreme Court - appeal or judicial review - applicant complained that Tribunal had not ensured that relevant material was disclosed under s73(5)(b) Freedom of Information Act 1989 - no occasion for Tribunal to make further enquiries to the existence of further relevant material - applicant complained that access should have been given to documents not in existence at time of application - entitlement only to documents held at time of application - other complaints not upheld - relief refused.

NEGLIGENCE - State electorate office worker - harassment and bullying by Minister for Aboriginal Affairs and Minister Assisting the Premier on Citizenship - Speaker of the Legislative Assembly of New South Wales Parliament, employer - whether breach of duty by Speaker - non-delegable duty to take reasonable care - whether risk of psychiatric illness reasonably foreseeable - breach - exacerbation of psychiatric illness - duty of care of State member - breach of duty by bullying and harassment - whether Speaker liable for tortious conduct of State member - State member acting as Speaker's representative - whether State of New South Wales liable - s 5 Crown Proceedings Act - s 8 Law Reform (Vicarious Liability) Act - whether State Minister a servant of the Crown - whether State member is a person in the service of the Crown INTENTIONAL TORT - whether intention to cause psychiatric injury BREACH OF CONTRACT - whether term implied BREACH OF STATUTORY DUTY - whether failure to comply with Occupational Health and Safety Act 2000 EVIDENCE - consideration of the principle in Jones v Dunkel DAMAGES - assessments under Division 3, Part 5 Workers Compensation Act and Part 2 Civil Liability Act - whether plaintiff totally incapacitated for work - application of s 151Z(2) Workers Compensation Act

CONTRACT - construction - commercial agreement - whether provision entitling respondent to commission on sales made by appellant extended to commission on sales made by associated entitles - whether court entitled to depart from literal meaning of unambiguous provision in order to give it a commercial and businesslike operation CONTRACT - implied terms - commercial agreement - whether implied term that appellant would not voluntarily do anything that caused respondent to be deprived of the circumstances under which it would derive commission - whether implication of term warranted when agreement did not impose obligation on appellant to make sales that would have entitled the respondent to commission CONTRACT - implied terms - commercial agreement - termination on reasonable notice TRADE PRACTICES - misleading and deceptive conduct - sophisticated commercial parties negotiating at arm's length the terms of proposed agreement - whether alleged representations concerning the terms were misleading or deceptive EQUITY - fiduciary duties - commercial agreement between sophisticated parties - whether by entering agreement with appellant that gave rise to a potential conflict of interest respondent breached any fiduciary duty owed to appellant - whether appellant gave fully informed consent

COSTS - relevant statutory provisions governing the costs order - when did the limitation on costs crystallise into a constraint relevant to the parties - Legal Profession Act 1987, s 198D; Legal Profession Act 2004 (NSW), s 338 STATUTORY INTERPRETATION - principles - reading provision in context - whether, when operative statute adopts a term "as defined in" a source statute, account must be taken of the operation of that phase in the source statute TORTS - intentional - assault - whether legal costs were subject to the statutory limitation limiting the amount recoverable WORDS AND PHRASES - "matter" -Legal Profession Act 2004 (NSW), Sch 9, cl 18 WORDS AND PHRASES - "the same meaning" - Legal Profession Act 1987, s 198C; Legal Profession Act 2004 (NSW), s 337

CORPORATIONS - Corporations Act 2011 (Cth) s 482(1) - application to terminate winding up - no issue of principle

ADMINISTRATIVE LAW - natural justice - prejudgment and apprehension of bias - second decision made on remitter after the quashing of the first decision - outcome the same - no bias and no reasonable apprehension of bias - alleged breach of the Hardiman principles - no bias arising from breach - otherwise no error of law

CONTRACT - where the parties are property developers of land on either side of a road - where it was a condition of the development consents of both the plaintiffs and the defendant that a roundabout be constructed at the intersection of the properties with the construction cost to be shared between the applicants but envisaged the local council would construct the roundabout - where the plaintiffs alone had a contract with and paid the entire construction cost to the construction company - whether conversations and correspondence gave rise to a contract between the parties RESTITUTION - where the parties are property developers of land on either side of a road - where it was a condition of the development consent of both parties that a roundabout be constructed at the intersection of the properties with the construction cost to be shared between the applicants - where the plaintiffs alone had a contract with and paid the entire construction cost to the construction company - where the defendant participated in the design and construction process of the roundabout and had full knowledge of the construction - where the defendant sold its land to a third party purchaser after the construction of the roundabout was completed - whether the defendant must pay half the construction cost of the roundabout to the plaintiffs on the basis that the defendant had been unjustly enriched at the expense of the plaintiffs - whether there must be a request for a restitution claim based on unjust enrichment to be made out where the claim is for work done and materials provided for the benefit of two parties - whether the defendant's obligations passed onto the third party purchaser and whether the defendant received the benefit of the work EQUITABLE CONTRIBUTION - money paid by one party for construction costs benefiting both parties - where no common obligation for full payment to a third party

CORPORATIONS - winding up - statutory demand - application for order setting aside - no determination on the merits - where company which was served on 4 March 2011 with a demand dated 1 March 2011 accepted that the debt was owing but maintained it was not due and payable until 2 March 2011 - where an application to set aside the demand was nevertheless made - costs - proceedings should not have been brought - demand to be set aside but plaintiff to pay defendant's costs assessed on the indemnity basis

APPEAL - appeal from Local Court - question of law - s 39 of the Local Court Act 2007 - leave sought to appeal - s 40(2) of Local Court Act 2007 - declaratory relief - s 79 of the Supreme Court Act 1970 - construction of Deed - defendant not a party to Deed - leave to appeal refused - appeal dismissed - costs