Cases and authorities

CONTRACTS - unjust contracts - mortgage and loan contracts - cross claim - two mortgage loans - disclosed purpose to refinance existing borrowings and to make off farm investment - actual purpose differed in part - failure to disclose changed investment strategy and other alterations in purpose - whether plaintiff was aware or failed to take steps to ensure serviceability of first loan - not established - whether plaintiff failed to follow lending guidelines - not established - whether lender engaged in asset lending -not established - whether defendants were inexperienced - not established - whether defendants were not sophisticated borrowers - not established - whether lender failed to establish false information supplied by alleged fraudster- whether lender was aware of fraudster - whether contract was unjust - section 7 of the Contracts Review Act - not established - defendants' conduct - defendants failed to disclose investment decisions to plaintiff - money borrowed for high risk investment - defendants were legally advised against investment - whether plaintiff acted unconscionably - not established - whether defendants' position was result of plaintiff's conduct - not established - loan contract not unjust - relief sought in cross claim refused - costs

CRIMINAL LAW - conviction appeal - whether evidence of admissions by appellant that he attempted to kill his wife wrongly admitted - Criminal Procedure Act s 281 - whether at the time when an admission was made the appellant was or could reasonably have been suspected by police officers of having committed an offence - whether reasonable excuse that tape recording not made - Evidence Act s 85 - whether admission made in circumstances where truth of admission unlikely to be adversely affected - Evidence Act s 90 - whether trial judge exercised discretion wrongly by admitting evidence - whether any relevant unfairness - relevance of appellant's physical condition - whether appellant capable of understanding questioning - CRIMINAL LAW - conviction appeal - Jury Act - majority verdict - whether trial judge's direction that majority verdict possible in some circumstances undermined effect of Black v R direction concerning need for jury to try its utmost to reach unanimous verdict - advisability of mentioning possibility of majority verdict before necessary to do so

CRIMINAL LAW – Offences – Robbery in company – Appeal against conviction – Unreasonable verdict – Where the victim was robbed by three men at night in Kings Cross – Where there was no evidence as to the exact time of the robbery – Where CCTV footage showed the appellants in company with one of the robbers near the location of the robbery at 2:30am – Where the appellants were subsequently found by police, and the victim, in the company of one of the robbers – Where the victim identified the robbers by their dark clothing, but the appellants were wearing light clothing – Where the Crown case relied largely upon identification evidence of the victim – Whether verdict was unreasonable and cannot be supported having regard to the evidence at trial.

CRIMINAL LAW - whether the sentencing judge erred in assessment of the seriousness of the offence - whether the effect of the offender's mental condition was properly taken into account - whether sentence was manifestly excessive - failure by sentencing judge to take into account in an appropriate manner the psychiatric evidence of the offender - offender re-sentenced

CRIMINAL LAW - whether the sentence was manifestly inadequate - whether the sentence imposed adequately reflected the criminality and nature of the offending - where Crown allege error in sentencing judge failing to fix a non-parole period within appropriate range - consideration of deterrence in case - CRIMINAL LAW - offender leave to appeal against sentence - whether the sentencing judge erred in concluding that the offender's character was of little value in the sentencing exercise - whether the sentencing judge erred in failing to state that the elements of general and specific deterrence should be given less weight where the offender is suffering from a mental illness

CRIMINAL LAW – application for extension of time – delay largely unexplained – application refused - CRIMINAL LAW – appeal by stated case – appeal to District Court from Local Court – prosecution for offence of break, enter and steal – appeal dismissed, conviction and sentence confirmed – request to submit question of law – prosecuting authority not notified of request – adequacy of formulation of questions of law in stated case – stated case defective

CRIMINAL LAW - whether the sentencing judge erred in finding that the offender did not accept responsibility for her criminality and did not acknowledge the loss she caused - implications of evaluating offender's remorse absent the giving of oral evidence in court - whether the sentence imposed was manifestly excessive

CRIMINAL LAW - sentencing - offence contrary to s 154A(1)(b) Crimes Act 1900 - whether error in assessment of objective seriousness of offence - whether value of motor vehicle driven by offender was relevant - whether error in failure by sentencing judge to refer to possibility of summary disposal - whether sentence manifestly excessive

Procedure - appeal - dispute as to ownership of shareholding in company - application for declaration of dividend to enable respondents to fund costs of appeal

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – referral for medical reassessment – construction of s 62 of Motor Accidents Compensation Act 1999 – jurisdictional fact – to whom material must be "additional" – further information of a different kind

Family Provision. Application by son who was given a life interest. Orders for provision by way of Crisp order and an increased share of residue.

CONTRACTS - joint venture - previous taking of an account before different Associate Justice who had retired - method of calculation of interest previously determined - interest should be simple interest - Additional question raised by parties - how payments made and received by creditor should be applied - whether first to loan and then to interest payable thereon or otherwise in accordance with manner in which receipt of payment had been treated by creditor or directed to be treated by creditor - determination based upon construction of deed - Upon construction of Deed payments received credited to loan first and then to interest payable thereon - PAYMENT OF INTEREST on moneys found to be payable - interest calculated from 25 June 2008 until payment at rate prescribed by Practice Note - COSTS of application for accounts and for the hearing

CORPORATIONS – arrangements and reconstructions – Part 5.1 scheme of arrangement – arrangement between a company and its members – meeting convened and held in accordance with order under s 411(1) – need for resolution approving scheme to be “passed” by required majorities “at” that meeting – while meeting in progress, chairman demands poll and directs conduct of poll – voting cards completed and deposited by members and put into custody of person directed to count votes and report result to chairman – chairman then declares meeting “closed” and announces that the result of the poll will be “announced to the ASX as soon as possible following the conclusion of the meeting” – later the same day, chairman receives report on voting showing necessary majorities achieved and causes copy to be transmitted to ASX – whether resolution passed “at” the meeting

COSTS – fraud – solicitor-client or party-party – conduct of proceeding – failure to produce documents – failure to call witnesses who had filed affidavits – late briefing of counsel – abandoned claims

PRACTICE AND PROCEDURE – non-publication orders – Evidence at 1995 (NSW) s130 – public interest immunity – police operating procedures – public interest in confidentiality is to be balanced against the public interest of open justice

SUCCESSION - family provision orders sought - adequacy of provision - Plaintiffs - spouse and children of the deceased - estate left to de facto wife of deceased - small estate - financial and material circumstances of Plaintiffs - whether Plaintiffs have been left without adequate provision for proper maintenance and advancement in life - no provision to be made for Plaintiffs

FAIR TRADING ACT 1987 (NSW) – s 42 – misleading and deceptive conduct – whether misrepresentations made as to ownership of land – non-disclosure of encumbrances on land – whether reliance on representations – causation – whether plaintiff informed of true position prior to investment - TRUSTS – whether arrangements as to investment gave rise to an equitable charge or trust – whether any interest in land created

CONTRACTS – where plaintiffs mortgaged home to secure loan for speculative property investment – plaintiffs induced by representations made by property developer to whom they were introduced by their son – plaintiffs in position of special disadvantage – plaintiffs signed incomplete loan documents – loan documents completed by plaintiffs’ agent with materially false statements as to plaintiffs’ occupation, financial position and loan purpose – mortgage originator submitted loan application to finance company to arrange loan – no proper verification of details in loan documents – plaintiffs signed further loan documents containing false statements – plaintiffs defaulted and refinanced with different lender to avoid foreclosure – second loan application contained materially false statements and not properly verified – portion of proceeds of second loan disbursed without plaintiff’s authority - TRADE PRACTICES – whether lender engaged in unconscionable conduct in contravention of ss 51AA, 51AB or 51AC of Trade Practices Act 1974 (Cth) - CONTRACTS – whether loan “unjust” under Contracts Review Act – whether lender through agent should have known of false statements in loan applications – whether lender through agent should have known of plaintiffs’ position of disadvantage – whether lenders engaged in “pure asset lending” - CONTRACTS – whether mortgage originator engaged in misleading or deceptive conduct in contravention of s 52 of Trade Practices Act by submitting documents containing false representations to lender - CONTRACTS – whether breach of solicitor’s retainer to disburse loan proceeds otherwise than in accordance with plaintiffs’ directions - TRADE PRACTICES – whether property developer and plaintiffs’ son engaged in misleading or deceptive conduct in contravention of s 42 of Fair Trading Act

PROCEDURE - Amendment of Summons - Joinder of parties - CONSTRUCTION OF WILL - meaning of identified beneficiary - whether gift to identified beneficiary (Hospital) lapsed - identity of beneficiary entitled - whether organisation successor to beneficiary

RESTITUTION – quantum meruit – effect of termination of costs agreements on ability of solicitor to proceed to recover, tax or assess any of costs claimed – whether solicitor acquired entitlement to recover reasonable remuneration on quantum meruit basis in respect of legal services – whether claim for quantum meruit properly before primary judge – whether valid request by company for solicitor to provide it with legal services – directors of company not authorised to make request

CRIMINAL LAW - appeal against sentence - plea of guilty to two counts of armed robbery - whether sentence manifestly excessive in circumstances where no error identified but applicant's institutionalistion largely responsible for commission of offence.

CRIMINAL LAW - appeals against sentence - pleas of guilty to one count of knowingly facilitate car rebirthing activity on an organised basis, pursuant to s 154G(1) of the Crimes Act 1900 - whether Judge erred in assessment of objective gravity of offences - whether disparity of sentence between co-offenders - whether Judge failed to take into account one offender's onerous bail conditions - whether sentences manifestly excessive.

TORTS – negligence – breach of duty – motor vehicle accident – whether scope or content of duty so limited that no breach – first appellant owed respondent duty of care limited to manoeuvring vehicle into carport for three or four metres – first appellant was negligent in failing to keep his foot on brake and prevent it slipping onto accelerator - TORTS – negligence – causation – motor vehicle accident – “factual causation” test imposed by s 5D(1)(a) CLA satisfied – whether “scope of liability” test for causation imposed by s 5D(1)(b) CLA satisfied – no reason why responsibility for harm to respondent should not be imposed upon first appellant - TORTS – negligence – contributory negligence – motor vehicle accident – whether just and equitable to reduce respondent’s damages by 100% pursuant to s 5S CLA – whether apportionment of 50/50 was manifestly inadequate – culpability and causal potency not equal - TORTS – negligence – duty of care – motor vehicle accident – driver of motor vehicle of any age owes duty of care to someone in position of respondent

ADMINISTRATIVE LAW – judicial review – exploration licence – renewal of licence – subjective statutory pre-condition to renewal – decision-maker must be satisfied that special circumstances exist justifying renewal over certain area – whether no evidence to support primary judge’s finding that decision-maker was so satisfied – partial transfer of licence – whether document or instrument of transfer between transferor and transferee required under statute to effect transfer – transfer effected by statutory process – whether transferor and transferee signed document setting out terms of proposed new authority before transfer occurred - COSTS – general rule that costs follow the event exceptions to the – public interest – no reason why appellant should have benefit of departure from general rule

PROCEDURE – Appeal – Whether errors in the reasoning of the primary judge justified appellate intervention. - TORT – Negligence – Non-delegable duty of employer – Labour hire company – Truck driver hired out to truck owner – Negligence of truck owner resulting in defective seat – Injury to truck driver caused thereby – Whether employer vicariously liable. - TORT – Motor accident – Injury caused by truck jolting on potholes – Whether this a “motor accident” within the Motor Accidents Compensation Act 1999. - EVIDENCE – Jones v Dunkel inference from failure to call witnesses – Whether available only against the party who did not call the witnesses, or generally against all parties.

CONTRACTS - construction and interpretation of contracts - interpretation of miscellaneous contracts and other matters - where joint venture agreement and development agreement between plaintiff and first defendant - whether plaintiff or first defendant entitled to three undeveloped lots and proceeds of sale of six lots after termination of development agreement - whether first defendant entitled to specific performance of alleged agreement giving it proceeds of sale of six lots

CORPORATIONS - winding up - insolvency - presumption of insolvency arising from failure to comply with statutory demand - period for which presumption available to found winding up application - where company made application purporting to be under s 459G - where court found that no valid or effectual application under s 459G had been made - company's application dismissed - whether failure to comply with demand occurred seven days after dismissal or 21 days after service of statutory demand

PROCEDURE - courts and judges generally - proceedings for revocation of probate and declarations of invalidity of will - settlement of proceedings between two of three parties to proceedings - second defendant declines to take part in proceedings - directions for service of notice of proposed orders on second defendant - whether second defendant has proper notice of orders proposed to be made - SUCCESSION - wills, probate and administration - despite settlement, as against second defendant, it is necessary to prove circumstances warranting revocation of probate - whether probate should be revoked - later will is invalid for want of testamentary capacity - parties agree to dispense with procedural requirements to make a claim under Family Provision Act, 1982 - Court declines to make such orders - grants liberty to apply.

DEFAMATION - dismissed manager - establishing business in same industry - publication to industry - whether imputations conveyed - defence qualified privilege at common law - malice - aggravated damages.

PROCEDURE - judgment and orders - application to vary orders - construction of court orders - purpose of order - amendments unnecessary - application to vary orders refused.

TORTS - negligence - duty of care - builder in occupation of site - Plaintiff delivering concrete to the site - contract between builder and concrete supplier - independent contractor to concrete supplier employs Plaintiff - Plaintiff injured delivering concrete to the site - Plaintiff's truck overturns on public roadway leading to the building site - whether builder owes duty of care to the Plaintiff in respect of the roadway - self-imposed duties - absence of reliance by the Plaintiff - no duty of care.

COSTS – where defendants successful on the basis that the plaintiff did not establish that their conduct caused him loss although they admitted, during the hearing that their conduct was misleading or deceptive or negligent – where the defendants made two offers of compromise, the first offering verdict for them and with them paying the plaintiff’s costs and the second, offering $200,000 plus costs – HELD – that there should be an allowance in favour of the plaintiff because the defendants should have made the admission earlier but that the second offer of compromise was effective to give the plaintiff indemnity costs after adjusting for the allowance – the plaintiff ordered to pay 75 per cent of the defendants’ costs on the ordinary basis up until the second offer of compromise and on the indemnity basis thereafter

Criminal Law - sexual offences - s 293 Criminal Procedure Act - evidence of sexual experience or sexual activity - s 293(4)(a) - evidence of sexual experience or sexual activity at or about the time of the commission of the offence - evidence of events forming part of a connected set of circumstances.

APPEAL AND NEW TRIAL - appeal on a question of law to Court of Appeal from Appeal Panel of Administrative Decisions Tribunal under s 119 Administrative Decisions Tribunal Act 1997 - no jurisdiction of Court of Appeal to extend appeal to the merits

PROCEDURE - civil - interlocutory issues - application to vacate hearing

APPEAL – Court of Appeal – jurisdiction and powers – power of single judge to make decision about extension of time to appeal or seek leave to appeal – PRACTICE – parties – representation – assistance of unrepresented litigant by a McKenzie friend – whether desirable to make order granting leave for representation by McKenzie friend at future hearings – PRACTICE – order for pro bono assistance – relevant considerations for deciding that it is in the interests of justice to make the order – PRACTICE – parties – representation – challenge to retainer – how brought – PRACTICE – address for service – post office box not sufficient

PRACTICE – Order directing inquiry – Whether Court of Appeal should direct that this not be before the primary judge.

CONTRACT - franchise agreements - whether ending of franchise relationships constituted termination of agreements - whether franchisor had right to acquire franchisee's leasehold interests for no consideration - contractual interpretation - commercial, businesslike construction - CONTRACT - restraint of trade - franchise agreements - whether restraints on franchisee and its directors constituted reasonable protection of franchisor's legitimate interests - whether contractual regime sufficiently protected any interest in confidential information and industrial property - ESTOPPEL - estoppel by convention - whether conventional estoppel arose when franchise businesses continued after conclusion of specified contractual terms - parties did not make any consistent, clearly identifiable assumption about the nature of their relationship and how it was to end

INJUNCTION – applicant is an applicant under s 59 of Succession Act 2006 (NSW) for family provision – threat to prevent her managing a motel asset of the estate – whether claimant eligible person – whether evidence that assets of estate placed at risk – whether any reasonable claim – balance of convenience

PROCEDURE - costs - security for costs - plaintiff - whether ordinarily resident outside of New South Wales - Rule 42.21 of the Uniform Civil Procedure Rules - plaintiff bankrupt - Australian citizen - passport surrendered - United States visa cancelled - resident for tax purposes - no assets in jurisdiction - plaintiff resides with family in Sydney in holiday rental accommodation - ordinarily resident outside New South Wales not established - motion dismissed - costs

PROCEDURE – civil – subpoena – non-compliance – contempt – failure to produce documents pursuant to subpoena – whether it was established that there were documents in existence which could have been produced but which were not - PROCEDURE – civil – contempt – filing of documents – non-compliance – whether there was a failure to file affidavits in accordance with timetable - PROCEDURE – civil – contempt – failure of orders to state precise acts of contempt alleged with the required specificity, failure to specify which documents were not produced, failure to allege that the subpoenaed documents were in the possession or control of the addressee at the relevant time, failure to allege that the addressee was seeking to file any affidavit in response, failure to file evidence that Notice of Motion was served personally – Supreme Court Rules, r 9 - WILLS AND ESTATES – administrator – removal of executor – negligence – whether inventory grossly undervalues estate property – Probate and Administration Act 1898 (NSW), s 66 - WILLS AND ESTATES – construction of will – whether shares form part of estate, whether real property forms part of estate

Family Provision. Claim for provision by infant children. Consideration of their needs on a short term and long term basis in the context of a small estate. Small amount ordered. Plaintiffs' costs capped.

CRIMINAL LAW – particular offences – property offences – receiving stolen property – possession of housebreaking implements – CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (prescription drugs) – CRIMINAL LAW – leave to appeal against sentence – principle of double jeopardy – failure properly to assess objective seriousness (receiving offence) – failure properly to assess objective seriousness (supply prohibited drug offence) – failure to give effect to finding of special circumstances – no error established – CRIMINAL LAW – appeal against severity of sentence – individual sentences not manifestly excessive – extent of accumulation of sentences excessive – applicant re-sentenced

COSTS – costs of accused in criminal proceeding – Criminal Procedure Act 1986, s 257C – whether costs may be awarded to accused following withdrawal of prosecution - COSTS – costs of accused in criminal proceeding – Criminal Procedure Act 1986, s 257D (1)(c) – whether prosecutor failed to properly investigate a relevant matter - APPEAL – Criminal Appeal Act 1912, s 5AB – whether trial judge erred in refusing to make costs order following withdrawal of prosecution - APPEAL – exercise of discretion – House v R [1936] HCA 40, 55 CLR 499 – whether decision of trial judge fell outside the bounds of a sound discretionary ruling

CRIMINAL LAW - sentencing - Criminal Case Conferencing Trial Act - material error - re-sentence

PRACTICE AND PROCEDURE - procedural fairness - whether the primary judge denied the appellant procedural fairness - primary judge dismissed appellant’s case for "implied discontinuance" by appellant - where appellant indicated he could not proceed after primary judge dismissed appellant's motion for the judge to recuse himself - consideration of duty of primary judge to unrepresented litigants to ensure litigant's proper understanding of proceedings and adequate opportunity to vindicate rights in court - duty to warn of consequences of dismissal and to ascertain whether intention to discontinue in circumstances.

APPEAL - civil - application for leave to appeal - vexatious litigant

SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicants - principles upon which relief granted - application by children - where testator's adult daughter and son each received bequests of $50,000 from an estate worth approximately $5 million and sole residuary beneficiary (testator's wife) has significant other assets