Cases and authorities

ADMINISTRATIVE LAW - judicial review - procedural fairness - Consumer, Trader and Tenancy Tribunal - proceedings heard in absence of party - party not notified of hearing date - whether lack of procedural fairness - error of law on face of the record - no evidence to support findings of Tribunal - jurisdictional error.

PROCEDURE – application to restrain sale of property or require sale proceeds to be paid into court pending final determination – where interlocutory orders previously made dismissing application to restrain sale – where mortgagee entered into sale contract in purported exercise power of sale – whether applicant in contempt of court for non-compliance with court orders – whether contempt of an order in same suit or proceedings – whether serious question to be tried that power of sale exercised validly – whether notice properly given under s 57(2)(b) of Real Property Act 1900 – where application seeks to vary or set aside previous interlocutory orders in absence of material change of circumstance or fresh material – balance of convenience – no question of principle

CONTRACTS – building and construction contracts – performance bonds – whether entitlement of principal to call on performance bonds conditioned upon the objective fact of material non-compliance by the contactor with its contractual obligations – Clough Engineering v Oil & Gas Corporation (2008) 249 ALR 458 considered – grant of interlocutory injunction – whether contractually unjustified call on bonds likely to damage reputation and financial standing of contractor - EQUITY - injunction to restrain breach of negative stipulation in contract - exercise of equity's auxiliary jurisdiction - need to demonstrate inadequacy of relevant legal remedies including an award of damages - test for grant of interlocutory injunction

PROCEDURE - application for vexatious proceedings order pursuant to s 8 Vexatious Proceedings Act - whether proceedings are vexatious - whether vexatious proceedings were instituted or conducted frequently - repeated re-litigation of issues determined against the Defendant - failure to pay costs orders in respect of dismissed proceedings.

EQUITABLE REMEDIES - interlocutory injunction - plaintiffs apply to restrain exercise of a lien claimed over specialised equipment - serious question to be tried found - plaintiffs owe defendants monies in excess of the value of the lien - plaintiffs offer to pay defendants the value of the lien - equipment essential to conduct of plaintiff's business - balance of convenience favours grant of relief on terms - HELD: interlocutory relief granted on terms that the plaintiff pays the defendant the market value of the equipment plus a sum to cover the possibility that the plaintiffs' estimate of the market value of the equipment us wrong.

Family Law. Application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984. Defendant charges all his interests in jointly owned properties. Order made for adjustment.

CONTRACTS – construction – meaning of “completion” in deed – whether deed required completion in accordance with plans and specifications or only practical completion – relevance of doctrine of substantial performance – breach – whether plaintiff completed works in accordance with deed – whether plaintiff repudiated deed – where defendant terminated deed – whether defendant repudiated deed – whether defendant under implied obligation to act in good faith – whether plaintiff breached obligations in respect of financial accommodation needed to fund development – whether wrongful interference by defendant – whether plaintiff in breach of fiduciary duties in draw down on bank facility and application of some of proceedings – whether defendant breached obligations under interim management agreement – whether plaintiff suffered loss – amount of loss. - EQUITY - fiduciary obligations - whether fiduciary obligations are imposed in commercial context - relevance of terms of contract. - REMEDIES – restitution – whether defendant unjustly enriched at plaintiff’s expense – quantum meruit. - DAMAGES – whether defendant suffered loss – mitigation of loss – whether plaintiff suffered loss. - PRACTICE AND PROCEDURE – references – adoption of referee’s report.

EQUITY - trusts - resulting trust - proof of beneficial ownership - one party paid for property - second party provided work on property - whether intention that beneficial interest not be held on trust shown - on facts no intention shown. EVIDENCE - rules of evidence - rule in Browne v Dunn - defendant gave evidence - particular evidence then elicited from plaintiff in cross-examination - had not been put to defendant - whether plaintiff could rely on the evidence - evidence could be relied upon.

TORTS – damages – contribution between tortfeasors – s 5(1)(c), Law Reform (Miscellaneous Provisions) Act 1946 – where plaintiff’s damages already reduced by determination of co-tortfeasor’s notional liability under s151Z(2), Workers Compensation Act 1987 - - APPEAL – general principles – point not taken at hearing – not permitted to be raised on appeal

ADOPTION – children with special needs – whether in children’s best interests that adoption order be made rather than continue parental responsibility order – whether natural parents’ consent should be dispensed with – whether access to natural parents should be increased.

PRACTICE AND PRCEDURE - adequacy of pleadings - HELD - claim in negligence has not been properly pleaded and cannot now be maintained - claim in nuisance is limited to pleaded allegations - TORTS - nuisance - whether substantial and unreasonable interference by the defendants with the rights of or in connection with the plaintiffs’ use of their land as a result of development and use of defendants’ land as commercial nursery - HELD - no unreasonable interference with use or enjoyment of land by defendants as pleaded

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - offender mature woman of good character - killed her partner by single stab wound during violent incident - history of physical and emotional abuse by deceased

ADMINISTRATIVE LAW - Motor Accidents Compensation Act - medical assessment review panel - assessment of degree of permanent impairment

COMMERCIAL CONTRACTS - complex suite of agreements in relation to financing of commercial aircraft - construction of clause for payment of manager - whether replacement manager is a "substitute" - whether events of default have occurred - whether plaintiff has attempted to deal with Secured Property

PRACTICE AND PROCEDURE - contribution proceedings - interlocutory applications re discovery, subpoena and joinder of parties.

Trade Practices Act - Whether conduct misleading or deceptive - Alleged half-truths - Consideration of authorities - Proceedings pursuant to the Building and Construction Industry Security for Payments Act - Whether plaintiff mislead defendant causing it not to put on payment schedule in response to plaintiff's payment claim

PRACTICE AND PROCEDURE - employment contract - discovery of documents.

BUILDING AND CONSTRUCTION – application for stay of execution of judgments obtained pursuant to adjudications made under Building and Construction Industry Security of Payment Act 1999 and consequential orders – defendant owned land and engaged plaintiff as builder under construction agreement – both parties alleged breaches of construction agreement – plaintiff obtained judgments pursuant to adjudications and consequential orders – plaintiff subsequently subject to deed of company arrangement – defendant lodged proof of debt with deed administrator – proof of debt pending determination - BUILDING AND CONSTRUCTION – whether adjudications would operate practically as final determination of parties’ rights if judgments not stayed – effect of builder’s insolvency on operation of Act – where defendants may be prejudiced by inability to recover money paid under judgments if not stayed – whether serious question that defendant not indebted to plaintiff or debt discharged by set-off on ultimate determination of proof of debt – where defendant elected to take work out of plaintiff’s hands instead of terminating contract for plaintiff’s breach – where defendants subsequently repudiated contract – whether serious questions that defendants entitled to damages claimed in proof of debt – where no security proffered by defendants for outstanding judgments – plaintiff’s entitlement to enforce judgments in absence of security – moneys to be held on trust until proof of debt ultimately determined - PROCEDURE – where plaintiff obtained charging order under Civil Procedure Act 2005, s 106 against defendant’s land – whether charging order over land valid – whether Registrar-General empowered to register restraining order against land – orders to be discharged

EQUITY – PRACTICE AND PROCEDURE – legal incapacity in relation to the conduct of legal proceedings – s 3(e) Civil Procedure Act 2005 (NSW) – proceedings were instituted purportedly on behalf of the plaintiff by a tutor on the basis that he was a person under legal incapacity in relation to the proceedings – the plaintiff put in issue whether he was such a person – the tutor moved on motion for an order to determine whether he was or was not – requirements for legal incapacity

CRIMINAL LAW - Crown appeal against sentence - pleas of guilty to two offences of robbery armed with a dangerous weapon and two offences of attempted robbery armed with a dangerous weapon - sentences failed to reflect objective seriousness of offences - failure to take into account offences on a Form 1 document - failure to apply the principles in Pearce v The Queen (1994) 194 CLR 610 - excessive attention paid to offender's subjective case - need to re-sentence.

CRIMINAL LAW – Commonwealth Criminal Code – particular offences – drug offences – manufacturing commercial quantity of controlled drug (methamphetamine) – CRIMINAL LAW – Crown appeal against manifest inadequacy of sentence – objective gravity of offences – CRIMINAL LAW – sentence – sentencing procedure – sentencing statistics – applicable range of sentences – consideration of comparable offences – comparable sentences under Commonwealth law – comparable sentences under state law – appropriate basis for comparison – CRIMINAL LAW – enactment of s 68A Crimes (Appeal and Review) Act 2001 – construction of s 68A – partial resolution by publication of R v JW – whether s 68A applies to Crown appeals – preclusion from taking into account double jeopardy element: R v De La Rosa – discretion to reject Crown appeal – Crown appeal dismissed

CRIMINAL LAW - appeal against sentence - whether the offender had a justifiable sensse of grievance when comparing his sentence with that imposed upon the co-offender - whether the offender was entitled to a discount in excess of 25% for cooperation and early plea of guilty

CRIMINAL LAW - offences against the person - homicide - where the deceased had an illness causing cognitive degeneration - where the deceased consumed a drug given to him by the appellant knowing that by doing so he would die - whether the act causing death was that of the deceased or the appellant - whether the trial judge’s directions on the mental capacity of the deceased were erroneous - whether possessing the capacity to commit suicide requires a person to make an “informed decision to take one’s own life” - CRIMINAL LAW - offences against the person - manslaughter - whether manslaughter by criminal negligence available where a person makes a drug available for another’s consumption intending that death will result - whether failure to make enquiries of a person’s mental capacity capable of constituting a breach of duty causing death - CRIMINAL LAW - procedure - summing up - whether trial miscarried due to trial judge not identifying essential element of the offence in written directions but doing so in oral directions - CRIMINAL LAW - appeal and new trial - Criminal Appeal Act 1912 s 8(1) - whether an acquittal or a new trial should be ordered - WORDS AND PHRASES - “suicide”

CRIMINAL LAW - sentencing - young offender - no question of principle

CRIMINAL LAW - Crown appeal against sentence - pleas of guilty to three offences of robbery armed with a dangerous weapon and one offence of possess pistol without licence - whether sentences reflected the objective seriousness of the offences, whether principle in Pearce v The Queen (1994) 194 CLR 610 was applied - whether regard had to offences on Form 1 - application of standard non-parole period - application of principle of totality.

CONTRACT – collateral contract – inconsistent with principal contract – pre-contractual promissory estoppel available. - EQUITY – contract – equitable relief against enforcement – pre-contractual promissory estoppel. - ESTOPPEL – promissory estoppel – pre-contractual promise – estoppel available. - ESTOPPEL – promissory estoppel – negative effect – restraint on enforcement of rights. - ESTOPPEL – promissory estoppel – exclusively equitable. - EVIDENCE – written contract – parol evidence rule – entire contract rule – pre-contractual promissory estoppel not barred.

LIMITATION OF ACTIONS – cause of action founded on an alleged assault by police officers – amendment of pleadings outside limitation period to allege cause of action founded on false imprisonment – whether new cause of action arises out of substantially the same facts for the purposes of s 65(2)(c) of the Civil Procedure Act 2005 (NSW) – adequacy of proposed pleading to enable question to be determined - LIMITATION OF ACTIONS – limitation period applicable to an action for damages for personal injury founded on false imprisonment - LIMITATION OF ACTIONS – claim for aggravated damages founded on alleged assault – whether claim is ‘for damages for personal injury” within s 18A(2) of the Limitation Act 1969 (NSW) – whether limitation period is three years – whether claim for exemplary damages can be pursued independently of pleaded claim for aggravated damages

CORPORATIONS – PROCEDURE – EXAMINATION – ARREST AND DETENTION – authority by which person arrested for failure to attend examination may be held in custody by Corrective Services discussed.

PRACTICE AND PROCEDURE - security for costs - corporation - cross claim.

CORPORATIONS – COMPANY TITLE – CLASS RIGHTS - whether regulations made under Company’s Constitution restricting access to certain areas in company title residential building were “for” the efficient conduct of the building as a whole – whether regulations valid.

COSTS – whether appropriate to order that costs should be payable forthwith – unreasonable conduct – failure to act expeditiously in conduct of proceedings – failure to assist in furthering overriding purpose – s 56 – 58, s 98, Civil Procedure Act 2005 (NSW) – UCPR 42.7

REAL PROPERTY – Torrens title – unilateral severance of joint tenancy - Real Property Act 1900 (NSW), s 97 – where transfer unilaterally severing joint tenancy lodged with Registrar-General after death of severing tenant – modes of severing joint tenancy – whether severing tenant’s acts before death sufficient to effect severance at equity – relevance of perfected gift doctrine in context of unilateral severance – whether transferor’s death precludes transferee from proceeding to registration – implications of dealings taking effect as deeds under Real Property Act where person taking under deed dies before execution – whether severing tenant’s death terminates solicitor’s authority to lodge transfer - EQUITY – where surviving joint tenant alleged payment of acquisition costs and costs of improvements and repairs – whether resulting trust or constructive trust arises – whether presumption of advancement arises between mother and child – where insufficient evidence of payment – where mother intended son to hold property as joint tenant

CONTRACT - Vendor and Purchaser - claim by vendor for balance deposit and cross-claim by purchaser for damage to premises and non-delivery of fixtures or included items.

PRACTICE AND PROCEDURE – application to strike out amended defence – where pleadings concern non-disclosure by insured to insurer’s agent – whether remedies under Insurance Contracts Act 1984 (Cth), s 28 available where allegation of non-disclosure by insured to insurer’s agent – issue not to be decided on interlocutory application for strike out - PRACTICE AND PROCEDURE – where lack of specificity in pleadings alleged – where certain matters pleaded should be clear to plaintiff – where pleadings of sham transactions require further particularity – where failure to plead content of foreign law relied upon with sufficient particularity – where pleading of deliberate or reckless non-disclosure by insured impugned – whether necessary to plead non-disclosure was dishonest and with intention to deceive - PRACTICE AND PROCEDURE – where pleading of reckless violation of Corporations Act, s 588G by plaintiffs raises issue of plaintiffs’ actual knowledge and subjective belief of insolvency – where material facts of knowledge and belief not properly pleaded - PRACTICE AND PROCEDURE – application for discovery – no question of principle

COSTS – application for indemnity costs – whether offer of settlement was an offer of compromise under the rules – whether offer operated as a Calderbank offer – whether intention shown – whether offer a genuine compromise or invitation to surrender - UCPR 20.26(3)(a)

PROCEDURE – privilege – where proceedings concern testamentary capacity of deceased – where documents sought under subpoena addressed to deceased’s lawyer who is also lawyer for plaintiff seeking probate – where documents prima facie privileged under Evidence Act 1995, s 119 or common law – application of Uniform Civil Procedure Rules, r 1.9 and Evidence Act to inspection of documents – whether Evidence Act, s 121 precludes privilege claim – whether deceased is “a client” for s 121 – whether privilege waived under Evidence Act, ss 122 or 126

PRACTICE AND PROCEDURE - Application by plaintiff for interim payment from second defendant pursuant to section 82(3)(c) Civil Procedure Act 2005 - plaintiff brain damaged when fork of his bicycle collapsed - no issue as to application of section - quantum of interim payment of damages - order made - APPLICATION by second defendant for interim contribution/indemnity from cross-defendants with respect to interim payment - second defendant unable to bring itself within section 82(3)(c) - order refused.

CRIMINAL LAW - offences contrary to the Commonwealth Criminal Code 1995 - obtaining a financial advantage by deception - sentence appeals by Crown and offender - application by offender to adduce fresh evidence - whether circumstances special and unusual - whether Crown appeal revealed latent error - in offender's application whether sentencing judge misunderstood objective seriousness of offence - whether sentencing judge erred in failing to have adequate regard to the effect on offender's family of his imprisonment.

CRIMINAL LAW - Appeal against conviction - indecent assault - two complainants - verdict of guilty on one complaint and not guilty on the other - whether a doubt about the reliability of one complainant implied a similar doubt about the other - whether the verdict of guilty unreasonable. - CRIMINAL LAW - Appeal against conviction - two complainants - two independent indecent acts charged - whether trial judge erred in not directing jury not to engage in tendency reasoning. - CRIMINAL LAW - Appeal against conviction - indecent assault - whether trial judge erred in not directing jury to exercise caution before convicting because Crown case depended largely on evidence of complainant.

APPEAL – Appeal against conviction – conviction on some counts of sexual assault and acquittal on others – whether verdicts of jury were inconsistent and unreasonable – verdicts capable of being reconciled – Challenge to Trial Judge’s refusal to give direction – whether evidence available to support Crown submission in final address.

APPEAL – appeal to District Court from decision of a magistrate – Crimes (Appeal and Review) Act 2001, s 18 – whether appeal should be conducted by way of review or rehearing - APPEAL – appeal to District Court from decision of a magistrate – Crimes (Appeal and Review) Act 2001, s 20 – whether District Court judge exceeded jurisdiction - APPEAL – appeal to District Court from decision of a magistrate – credit findings – whether District Court judge obliged to accept the credit findings of the magistrate - APPEAL – appeal to District Court from decision of a magistrate – setting aside of conviction – whether any additional order ought to be made by the District Court so as to finally dispose of the matter - APPEAL – appeal to District Court from decision of a magistrate – setting aside of conviction – Crimes (Appeal and Review) Act 2001, s 73 – production of memorandum to finalise proceedings - APPEAL – appeal to District Court from decision of a magistrate – setting aside of conviction – Criminal Procedure Act 1986, s 206 – certificate certifying the matter has been dismissed - PROCEDURE – trial – conduct of trial judge – reasonable questioning of witness by trial judge – whether trial judge has misused advantage of seeing and hearing witness – bounds of reasonable questioning - BIAS – apprehended bias – test for reasonable apprehension of bias – whether fair minded lay observer might reasonably apprehend that District Court judge might have prejudged the outcome of appeal proceedings - WORDS & PHRASES – “dismiss the charge” – “acquit” – “quash” – “set aside conviction” - WORDS & PHRASES – “autrefois acquit” – “autrefois convict”

CORPORATIONS – LIQUIDATORS – COSTS – liquidator’s claims failed – whether liquidator personally should pay defendants’ costs on indemnity basis – whether liquidator acted prudently and reasonably in prosecuting the proceedings.

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - referral for medical reassessment - proper construction of s 62 Motor Accidents Compensation Act 1999 - whether there was additional relevant information, whether the additional information was capable of having a material effect on the outcome of the previous assessment - further information not of a different kind from material available to first Assessor - further information merely a different opinion by another Doctor.

EQUITY [397] – Equitable remedies – Specific performance – The jurisdiction in general – General principles – Enforcement by purchaser

PROCEDURE - amendment - application to amend Statement of Claim - existing claim against solicitors for breach of retainer and negligence - proposed amendment alleges breach of fiduciary duty - whether fiduciary duty alleged is known to the law - whether actual prejudice by lateness of amendment. EQUITY - general principles - fiduciary obligations - solicitors retained to act on sale of shares by vendor - authorised Director is also Director of purchaser company - whether solicitors in position of conflict - whether fiduciary obligation owed.

SUCCESSION – PROBATE – CAVEAT – whether caveator had shown any interest in deceased’s estate supporting lodgement of a caveat against grant of probate – no question of principle.

CRIMINAL LAW - sentence - Crown appeals - one offender pleads guilty to importing commercial quantities of cocaine and methamphetamine - second offender pleads guilty to attempted possession of commercial quantity of unlawfully imported cocaine with a similar offence concerning methamphetamine to be taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - claim by Crown that sentences manifestly inadequate - assessment of roles of offenders - assessment of objective gravity of offences - held that sentences manifestly inadequate - no discretionary reasons why Court should not intervene - offenders resentenced

CRIMINAL LAW - drug offences - importation 10 kg methamphetamine (Ice) - Criminal Code Act 1995 (Cth) s 307 - joint criminal enterprise - 3 offenders - different roles - whether findings as to role(s) open - discount for assistance - intelligence only - whether sentences excessive.