Cases and authorities

COSTS - meaning of "settlement offer" - whether offer to settle genuine offer to settle proceedings - reasonableness of offer as regards prospects of success - time offer made - relevance of ultimate success - s 48A Defamation Act 1974 (NSW) COSTS - offer of compromise - interest accruing after offer of compromise made not to be taken account in determining whether offeror obtained judgment no less favourable - Uniform Civil Procedure Rules 2005, 42.14, 42.16 COSTS - application of general rule - Uniform Civil Procedure Rules 42.1 - discretion to award - multiple issues in proceedings - costs orders to reflect degree of success of parties WORDS AND PHRASES - "settlement offer"

PROCEDURE - costs and interest - whether it was unreasonable for the first defendant to not accept the plaintiff's Calderbank offer - whether the plaintiff's offer was more advantageous to the first defendant than the result obtained by the first defendant in the proceeding - whether the first defendant should pay the plaintiff's costs on an indemnity basis - whether the first defendant is entitled to interest

APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales - appeal from General Division of Local Court - no question of law or mixed question of law and fact

APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales - appeal from General Division of Local Court - no question of law or mixed question of law and fact

NOTICE TO PRODUCE - whether amounting to an abuse of process where seeking documents also sought in substantive proceeding for preliminary discovery - admissibility of evidence - whether representations by solicitor amount to admissions by client - call for documents under r 21.10 UCPR - whether entitlement spent where affidavit not read

PROCEDURE - freezing orders - where plaintiffs allege second defendant acquired business with knowledge of mortgagee's interest - good arguable case shown - risk of dissipation shown - no question of principle

CRIMINAL LAW - manslaughter

CONTRACTS - loan agreement - whether borrower advised lender of need to vary terms and conditions of agreement - whether lender represented to vendor that it would agree to such variation - written agreement held to be all-encompassing and binding - no binding oral representations held to have been made EVIDENCE - proof - onus of proof - party seeking to rely upon spoken words as a foundation for a cause of action - necessary that the words spoken are capable of forming a binding contract and are intended by the parties to be legally binding - mere aspirational words insufficient

NEGLIGENCE - plaintiffs injured as a result of falls from bikes at a purpose built skate park constructed and controlled by the defendant - surface of bare concrete painted to facilitate removal of graffiti - surface more slippery when painted than in original condition - whether defendant in breach of duty to take care for the safety of users of the skate park - Civil Liability Act 2002 - whether risk obvious - whether riding bikes at skate park a dangerous recreational activity - whether defendant liable in negligence as result of materialisation of an obvious risk of a dangerous recreational activity - whether defendant owed a duty of care for recreational activity where risk warning given - whether accidents caused by reason of the added slipperiness of the surface when painted - whether plaintiffs established that accidents would not have occurred if surface had not been painted - where plaintiffs injured as result of the materialisation of an obvious risk of a dangerous recreational activity - verdict for the defendant

PENALTY - equitable doctrine - consent orders - whether higher amount is a present debt - substance of arrangement

TRUSTS & TRUSTEES - termination of trust - Rule in Saunders v Vautier - grounds for trustee withholding consent to termination TRUSTEE - right of indemnity from trust assets - not available in respect of property that is the subject of a specific bequest to the executor on trust MISLEADING CONDUCT - proper characterisation of conduct in totality of circumstances - not trade or commerce - not business or professional activity

NEGLIGENCE - whether insurance broker provided misleading advice to insured concerning insurance policy. DAMAGES -whether insured could have obtained alternative policy - whether insured's loss should be assessed as a loss of a chance. DAMAGES - whether insured's settlement with insurer reasonable. EQUITY - assignments - unassignable property - right to sue - tort - contract - Trade Practices Act 1974 (Cth). CORPORATIONS - company under administration - Corporations Act 2001 (Cth) s 437A(1) - whether can assign cause of action.

COSTS - Whether the defendants' success on "main" or "central" issue in the proceedings entitles them to costs of the of the proceedings including costs in respect of the other issue on which they were unsuccessful - applicable principles - application for costs orders against third parties - whether having regard to all the circumstances of the case each party should pay its own costs

Leave to appeal against sentence - grounds entirely without substance - leave refused with brief indication why.

CRIMINAL LAW - appeal and new trial - appeal against sentence - whether sufficient weight given to finding of special circumstances - no point of principle

SEXUAL OFFENCES - applicant's wife did not give evidence - comment by prosecutor - post-incident conduct - whether consciousness of guilt - necessity for careful directions.

TORTS - quia timet injunction - whether intended height of Telecommunications tower a risk to safety of aircraft using plaintiff's airfield - whether public nuisance - whether plaintiff has standing - whether private nuisance - no emanation from defendant's land - whether substantial and unreasonable interference with plaintiff's land - extent of grant of quia timet relief

NEGLIGENCE - Civil Liability Act 2002 ss 5G & 5S - plaintiff member of defendant club - plaintiff climbed locked gate on defendant's premises rather than return to the clubhouse for a key and fell sustaining injury - no duty of care - plaintiff's actions not reasonably foreseeable - no duty to protect against plaintiff's actions - contributory negligence - no reasonable cause of action - proceedings dismissed.

PRACTICE AND PROCEDURE - interlocutory applications in proceedings for possession of land - application to set aside default judgment - whether satisfactory explanation for delay - whether bona fide defence available - subpoena addressed to former solicitor - confidential documents produced in answer to subpoena - no claim for legal professional privilege made at time of production - whether claim for privilege waived - application of s 122(2) Evidence Act 1995 (NSW) - legal professional privilege waived in part - application to amend statement of claim - costs.

SOLICITORS - possessory lien over client's documents - general principles - retainer discharged by solicitor - former client's documents subject to subpoena - interest of third party to solicitor client relationship involved - third party has interest which would be embarrassed by assertion of lien - former solicitors not entitled to retain documents in face of subpoena - practice of Court to protect interests of former solicitors in such circumstances - third party granted access to documents on basis that former client will not have access.

SOLICITOR - whether refer to Law Society Council or Legal Services Commissioner - preparation of affidavits that did not tell whole truth

ADMINISTRATIVE LAW - review of decision of CTTT pursuant to s69 Supreme Court Act 1970 - Application of s48 of the Residential Tenancies Act 1987 - What matters relevant to whether rent increase excessive - Refusal by a Tribunal to consider financial circumstances of tenant - no jurisdictional error.

LANDLORD AND TENANT - whether owner of residential premises is entitled to possession as against the long term occupants of those premises - whether the defendants have an equitable life tenancy of the premises - HELD - no equitable life tenancy - the nature of the defendants' tenancy of the premises - whether the premises are controlled premises, and the tenant a 'protected tenant', under the operation of the Landlord and Tenant (Amendment) Act 1948 (NSW) - HELD - the first defendant is the sole tenant pursuant to a periodic monthly tenancy at common law on the terms of a previous holding-over tenancy - as revised, the plaintiff has established that the premises are not controlled premises and that the tenant is not a 'protected tenant' under the Landlord and Tenant (Amendment) Act 1948 (NSW) - notice of termination valid under the Residential Tenancies Act 1987 (NSW) - plaintiff entitled to possession

APPEAL - General principles - Right of appeal - Interference with magistrate's findings of fact - Admission of fresh evidence - Whether error of law or mixed fact and law demonstrated - Whether fresh evidence could not have been obtained with reasonable diligence for use at trial - Whether the fresh evidence is such that there is a high degree of probability that there would be a different verdict.

Vexatious litigant - application for leave to appeal - no question of principle

CONTRACT - construction and interpretation - contra proferentem rule - agreement by investment banker to advise takeover target - bidding war - calculation of fees CONTRACT - whether claim by investment banker for fees settled by accord and satisfaction - whether banking of cheque proffered in part payment of invoiced amount precluded claim for balance

Application to remove financial manager of managed person's estate

EVIDENCE - property developer's intentions and plans as to how would have performed a contract had contract not been repudiated - not excluded by opinion rule - relevant and admissible as to course contract would have taken. EVIDENCE - opinion evidence - whether property developer can give expert evidence of prospective lot yield - held: not within specialised knowledge of a property developer. EVIDENCE - opinion evidence - evidence of costs of performing contract had contract not been repudiated - evidence of property developer as to costs of performance - held: evidence from customers of people with specialised knowledge in trades or professions not specialised knowledge. EVIDENCE - opinion evidence - evidence of costs of performing contract had contract not been repudiated computed by extrapolating from costs previously incurred - held: not specialised knowledge as within the province of any reasonably intelligent person.

CORPORATIONS LAW - Application to set aside statutory demand - Claim for commission by a real estate agent - Held there was an off-setting claim based upon the agent's actions in acting as the purchaser's agent without informing the vendor for whom he also acted - Demand set aside

CORPORATIONS - external administration - application by provisional liquidator for order terminating his appointment and order that the company be dissolved - where deed of company arrangement fully effectuated but no transition to creditors' voluntary winding up - case for termination of provisional liquidator's appointment made out subject to suitable future governance - governance issue intended to be dealt with by deregistration of company - but only ASIC can effect deregistration - none of court's powers to order ASIC to deregister applicable to this case - order directing dissolution refused - proceedings adjourned to allow provisional liquidator to reformulate claim

CRIMINAL LAW - sentencing - Crown appeal - sentence reduced by assistance - partial failure to provide assistance - s 21E Crimes Act (Cth) - reasonable excuse - onus of proof

PRACTICE & PROCEDURE - Court of Appeal - security for costs on leave application - inherent jurisdiction - whether correctly exercised - relevant factors - costs on leave application

Costs - security for costs - appeal costs - special circumstances

GUARANTEE AND INDEMNITY - enforcement of guarantee - capacity in which guarantee provided

DAMAGES - torts - negligence - lawyer - loss of opportunity - assessment of damages

PROCEDURE - Supreme Court Procedure - New South Wales - Removal of defendants from proceedings - Whether defendants were improperly joined - Where defendants are police officers - Where the State accepts vicarious liability for any negligent act of the police officers relevant to the plaintiff's claim. PROCEDURE - Supreme Court Procedure - New South Wales - Proceedings erroneously commenced by summons - In the interests of justice to require proceedings to continue on pleadings.

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute as to existence of debt - no matter of principle - whether "some other reason" why demand should be set aside - accompanying affidavit sworn some four months before date of demand - replacement affidavit sworn two days after date of demand subsequently served

DEFAMATION - pleadings - form of pleadings - use of slang or colloquialisms in pleadings - requirement to specify defamatory meaning - imputations struck out - liberty to re-plead

CONTEMPT - concurrent contempt, civil and criminal proceedings - whether motion for contempt should be stood over until after substantive proceedings - whether contempt hearing prejudicial to later criminal trial - determination of defendant's credit in contempt proceedings

CRIMINAL LAW - Sentencing - Supply of methylamphetamine - Where the sentencing judge found that the applicant was the second in command of a drug supply enterprise - Whether sentencing judge erroneously placed the offence above the mid range of objective seriousness - Whether the sentencing judge erroneously took into account aggravating features - Whether the sentencing judge failed to take into account a mitigating feature - Whether sentence manifestly excessive.

APPEAL - interlocutory injunction pending appeal - balance of convenience - no question of principle

Costs

WILL - Construction - Public policy - Condition affecting eligibility for appointment as trustee of trust of which primary beneficiary - Ineligible for appointment as trustee so long as married to or in cohabitation with specified person - Not debarred from receiving the corpus of estate while remaining married to or in cohabitation with specified person - Effect on marital relations - Whether likely to induce divorce and separation - Whether causes significant discord or friction in marriage

EQUITY - general principles - unconscionable dealings - Plaintiff provides son with one-third interest in real property - father said to be under special disability because of alcohol abuse, assault by younger son and re-establishment of recent relationship with son - notice of special disability said to arise by improvidence of transaction - son fails to plead to allegations in statement of claim - deemed admissions - held: son unconscionably took advantage of special disability - declaratory relief - son holds interest in property on trust for father. LOAN AGREEMENT - agreement entered into on behalf of Plaintiff by son acting pursuant to Power of Attorney with grandson - maturity date reached - amount of advance and interest not paid pursuant to agreement - grandson fails to plead to allegations in statement of claim - held: loan advance repayable with interest.

CORPORATIONS - winding up - application for order on the just and equitable ground - company owned by husband and wife engaged in long-running matrimonial litigation - company paralysed - taxation debts not paid - Commissioner of Taxation supports application - just and equitable ground established

Claim for possession of land by mortgagee/lender - elderly parents mortgage their home to secure borrowings by son and his company - defence of undue influence and cross-claim under Contracts Review Act 1980 - Application of Contracts Review Act - asset lending - improvident transaction from parents' point of view - failure by mortgagee to make any inquiries as to financial circumstances of parents - effect of explanation by solicitor of loan documents - loan agreement unjust as it affected parents - whether Court should exercise its discretion to apply Contracts Review Act in favour of parents.

PROCEDURE - cross-vesting - winding up application by husband in respect of company of which he and wife are only members and directors - matrimonial litigation in progress between them in Family Court - application by wife for order transferring winding up application to Family Court - winding up application supported by Commissioner of Taxation - evidence of failure of company to pay substantial sums due to Commissioner - transfer refused