Cases and authorities

SUCCESSION - family provision - claim by asserted de facto partner of deceased - status of Plaintiff as de facto partner is disputed by Defendant - whether Plaintiff otherwise an eligible person - whether factors warranting the making of the application - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance and advancement - application not made within prescribed period - whether sufficient cause shown for application not having been made within prescribed period - competing claim of beneficiary - nature of provision to be made for Plaintiff

ADOPTION – application for adoption order by step-parent – adoption in child’s best interests – consent of child’s mother not given in accordance with Adoption Act 2000 (NSW) – consent not effective – no grounds for making consent dispense order – adoption order to be made on receiving mother’s effective consent and up-to-date evidence that mother and step-parent living together

CRIMINAL LAW - Sentencing - money laundering

CRIMINAL LAW – appeal – conviction – warning to jury – delay between offence and complaint – whether trial judge failed to properly direct the jury in relation to delay in complaint - CRIMINAL LAW – appeal – conviction – warning to jury – danger of convicting on uncorroborated evidence of complainant where such evidence cannot be adequately tested because of passage of time – whether trial judge should have warned the jury in accordance with Longman v R [1989] HCA 60, (1989) 168 CLR 79 - CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Criminal Procedure Act 1986, s 294AA - CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Evidence Act 1995, s 165B - STATUTORY INTERPRETATION – Criminal Procedure Act 1986 – Evidence Act 1995 – transitional provisions

GUARANTEE AND INDEMNITY – enforceability – guarantee covenants in variation of lease – guarantees not signed by two of five guarantors - ESTOPPEL – estoppel by representation or convention – assurance that five personal guarantees would be executed – knowledge of solicitor that two guarantees not received imputed to client – no action taken by client with knowledge that assurance unfulfilled

Application by son left out of will. Whole estate left to a younger son. Order for provision. No matter of principle.

COMPETITION LAW - Competition Code - employment contract - restraint on investment in a competitor - whether restraint had the likely effect of substantially lessening competition.

Motor accident compensation claim - application to have claim dismissed on the ground of delay - whether full and satisfactory explanation for the delay - where claimant ignorant of existence of cause of action

CRIMINAL LAW - Confiscation of criminal proceeds - Restraining orders - Ancillary orders - Necessity for reasons - New statutory regime for applications to set aside restraining orders.

TORTS – liability of occupier of fitness centre – content of duty of care – breach of duty – section 5B Civil Liability Act 2002 – CONTRACT – plaintiff contractual entrant – implied warranty as to suitability of premises – breach of implied warranty – CROSS-CLAIM – content of duty of care owed by landlord/owner to plaintiff – whether deficiency in stairs constituted “dangerous defect” – terms of lease – whether cross-defendant/owners in breach of terms of lease – DAMAGES – quantification – past and future paid assistance – past and future gratuitous services – whether preconditions under ss 15 and 15B Civil Liability Act 2002 were satisfied.

PRACTICE AND PROCEDURE – CROSS VESTING – whether nine cases in NSW Supreme Court should be transferred to Victorian Supreme Court – whether transfer conducive to efficient administration of corporate insolvency – no question of principle.

CRIMINAL LAW - appeal against sentence - plea of guilty to an offence of aggravated (infliction of actual bodily harm) sexual intercourse without consent and an offence of detain for advantage - whether Judge failed to properly take into account the applicant's mental illness - whether Judge failed to properly consider the applicant's contrition - whether Judge erred in failure to find special circumstances - whether sentence for sexual assault offence manifestly excessive.

CRIMINAL LAW – conviction appeal – whether on whole of evidence it was open to jury to be satisfied beyond reasonable doubt that appellants part of joint criminal enterprise to commit sexual assault on 15 year old girl – identity of actual perpetrator of sexual act unknown – whether appellants aware that sexual intercourse with complainant was taking place and that she was asleep when this commenced – whether inference could be drawn that appellants encouraged commission of criminal act - CRIMINAL LAW – criminal complicity – joint criminal enterprise – persons acting in concert – presence when crime committed – what constitutes encouragement to commit crime – correctness of direction as to recklessness as to consent of complainant

CRIMINAL LAW – Application for leave to appeal against sentence – Parity – Assistance to authorities – Whether appropriate recognition given to assistance.

CRIMINAL LAW - Crown appeal - sexual intercourse without consent - whether actual or threatened violence an element of the offence - whether young prison inmate vulnerable - whether non-conclusive finding on future prospects of rehabilitation available - consideration of relevance of duration of offence - whether structure of sentence reflected overall criminality - whether sentence manifestly inadequate - Crown appeal upheld

CRIMINAL LAW - appeal against sentence - plea of guilty to one count of aggravated steal from the person - whether further affidvait evidence qualifies as fresh evidence - whether sentence manifestly excessive.

SUCCESSION - Family Provison - Eligible person - Claim of grandchild - Grandchild living in home of deceased for 11 years - Whether grandchild dependant on deceased - Held dependant - Whether there are factors warranting an application - Held such factors exist - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance and advancement - competing claim of beneficiary - nature of provision to be made for Plaintiff

Judicil review - Domestic Tribunal - Dog Show in Bega - Procedure fairness - Applicability of Companion Animals Act

APPEAL – Supreme Court Act 1970 s 75A – administrative law - Administrative Decisions Tribunal – application for declaration under s 33I of the Commission for Children and Young People Act 1998 that Part 7, Division 2 not apply to the plaintiff – where plaintiff convicted in 1982 of index offence of "sexual intercourse without consent" contrary to s 61D Crimes Act 1900 – child related employment - where plaintiff unable to work as a bus driver –– whether plaintiff posed a risk to the safety of children – where allegations of subsequent sexual abuse made against plaintiff in 2000 and 2001 – where plaintiff sought to cross-examine complainant about allegations - where complainant not made available for cross-examination before Tribunal – whether allegations had substance - where but for the allegations risk posed to the safety of children otherwise low or non-existent - denial of procedural fairness – appeal allowed - proceedings remitted to Tribunal for decision according to law

FAMILY LAW – De facto relationships – Adjustment of property interests – Whether error by primary judge – Re-determination by Court of Appeal.

DEFAMATION – Defence of truth – Whether available where the imputation is comment – Whether error by primary judge in finding defence made out. - DEFAMATION – Defence of statutory qualified privilege – Interest or apparent interest – Whether defence defeated by malice – whether defendant must exclude malice in order to show that its conduct was reasonable. - DEFAMATION – Defence of comment – Whether available where imputation is partly comment and partly assertion of fact.

COSTS – indemnity costs – contractual entitlement to indemnity costs – whether assessment of defendant’s costs on an indemnity basis more favourable than entitlement under contractual indemnity – discretion as to costs – general principles – Legal Profession Act 2004 s 364 – UCPR 42.5(b). - COSTS – indemnity costs – whether pursuit of groundless allegations without reasonable prospects of success, which prolonged the trial, was so delinquent as to warrant indemnity costs – discretion – general principles - COSTS – payment of costs by non-parties – circumstances in which non-parties may be ordered to pay costs of proceedings – whether repeal of UCPR 42.3 operated retrospectively – whether involvement in plaintiff’s conduct of the proceedings justified award of costs against a non-party – general principles – Civil Procedure Act 2005 s 98

PROCEDURE – orders – dissolution of stay of execution of writ of possession

EVIDENCE - admissibility - tendency - directions to be given to jury - probative versus prejudicial value - risk of unfair trial - likelihood of jury adopting impermissible reasoning.

ADOPTION – whether in child’s best interest to dispense with consent of natural father and make adoption order – no question of principle.

COMMON LAW - professional negligence - solicitors - litigation - alleged failure to properly conduct case - immunity.

PRACTICE & PROCEDURE – possession list - application for "default judgment" – where defendant bankrupt and trustee not elected to appear - where defence on foot -whether defendant has right to appear to defend proceedings despite s 60(2) Bankruptcy Act 1966 – where not clear whether plaintiff's application is actually for summary judgment pursuant to UCPR 13.1 or strike out pursuant to UCPR 14.28 – matter adjourned for further submissions.

STATUTES - acts of parliament - interpretation - relevance of international law for interpretation of domestic statute - Foreign State Immunities Act 1985 (Cth) - JURISDICTION - immunity - Foreign State Immunities Act 1985 (Cth) s 9 - no exception for acts of torture contrary to international law - JURISDICTION - immunity - Foreign State Immunities Act 1985 (Cth) - immunity of individuals and former officers

PROTECTIVE JURISDICTION – TUTOR – whether Supreme Court has power to appoint tutor for plaintiff in District Court proceedings – whether order should be made in this case.

CONTRACTS – loan agreements and registered mortgage – proceedings by lender against borrower for order for possession and a monetary order – consent orders made in favour of plaintiff/lender on basis of settlement agreement – Contracts Review Act 1980 – subsequent application under Act to set aside consent orders and for leave to file amended defence and cross-claim raising a case of unconscionability of the loan agreements – loans advanced by plaintiff were development project funds for a property redevelopment of the subject property – whether borrower had an arguable case that she was in a position of special disadvantage as at the time of the loans – whether loans amounted to asset lending – a finding open that the settlement agreement was “unjust” under the Act having regard to medical and other evidence – however no basis for an order under s.7 setting aside the consent order s- no arguable case established of a case based on unconscionability in accordance with general law principles

TENANCY - construction of agreement - whether lessee disentitled from exercising option to renew - exercise conditioned on observance and performance of covenants and agreements in lease - whether deemed default by reason of litigation was a failure to observe and perform - lessee not thereby disentitled from renewing - whether lessee breached covenant not to assign or procure any assignment or transfer - whether assignment in equity breached covenant not to assign - whether phrase "procure any assignment or transfer" includes equitable assignment - equitable assignment not a breach - in any event breach could not be relied on because notice under s133E Conveyancing Act not responsive to the exercise of the option.

ADMINISTRATIVE LAW – judicial review – misconstruction of statute conferring power – error of law on face of record – Supreme Court Act 1970 (NSW), s 69(3) - ADMINISTRATIVE LAW – procedure – internal review of medical assessment – administrative officer acting as gatekeeper for review applications - Motor Accidents Compensation Act 1999 (NSW), s 63(3) - TORTS – negligence – motor vehicle accident – degree of permanent impairment suffered by applicant – whether medical assessment incorrect in a material respect - WORDS & PHRASES – "incorrect in a material respect" – Motor Accidents Compensation Act 1999 (NSW), s 63(2) - WORDS & PHRASES – "reasonable cause to suspect" – Motor Accidents Compensation Act 1999 (NSW), s 63(3)

Family Provision - Claim by a daughter left out of will - Very small estate - Held Estate should pass to both daughters equally

CORPORATIONS - winding up - application by contributory for order terminating winding up - liquidator has paid all proved debts - insufficient funds to pay statutory interest on proved debts - shareholders who are also major creditors waive their own entitlements to interest and put liquidator in funds to satisfy interest entitlements of other creditors - waiver and right of liquidator to release funds to other creditors conditional on court making certain orders - one such order is order that liquidator pay interest to other creditors - liquidator inadvertently releases funds to other creditors - no basis for making order for payment by liquidator in any event - order for termination of winding up sought in form that termination to occur on interest being paid and a new director being appointed - form of order not authorised by section allowing court to terminate winding up "on a day specified in the order" - meaning of "specified" - another order sought contemplates direction for convening of general meeting to elect a new director and to consider removal of existing directors - second aspect not within scope of court's power to make directions for resumption of management and control by officers - observations on timing sequence indicated by s 482(1) and s 482(3)

APPEAL - appeal from Local Court pursuant to section 59(2) of the Crimes (Appeal and Review) Act 2001 - offence of 'Not keep firearm safely-not prohibited firearm/pistol' - section 39(1)(a) of the Firearms Act 1996 - respondent found not guilty - police firearm left in police vehicle - section 6(2)(a) of Firearms Act 1996 - exemption relating to police officers - whether Magistrate erred in concluding that the application of s 6(2) was a 'preliminary issue' - whether Magistrate erred in construing s 6(2) - whether Magistrate otherwise erred - appeal upheld - order dismissing proceedings set aside - matter to be remitted to the Local Court - costs

FAMILY LAW - De facto relationships - adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - 11 year de facto relationship - two children of parties - trust claim by Defendant - matter proceeds on undefended basis - no appearance by Defendant - evidence of the financial contributions to the acquisition, conservation or improvement of property or to the financial resources of the parties - value of property poorly substantiated - financial contributions unequal - non-financial contributions and contributions as homemaker considered - HELD: just and equitable to make an order adjusting the interests of the parties in property - Plaintiff ordered to transfer her interest and title in the real estate owned jointly with the Defendant to the Defendant on condition that he pays to her $50,000

CORPORATIONS - winding up - creditors voluntary winding up - remuneration of liquidator - where process for determination by committee of inspection breaks down - question for court to determine as to quantum of remuneration - delineation of functions attracting remuneration - whether certain activities are within those functions - whether "benefit" test applies - whether "but for" test applies - sufficiency of particulars given to allow court to assess work done - possibility of duplication - onus on liquidator to show proper quantum - onus not discharged - directions for further progress of application

PROCEDURE - costs - where plaintiff unsuccessful in proceedings - order that plaintiff pay defendant's costs - subsequent application by defendant for order under s 348(1)(b) of Legal Profession Act 2003 or s 99(2)(c) of Civil Procedure Act 2005 that plaintiff's solicitor pay defendant's costs - whether solicitor acted for plaintiff "without reasonable prospects of success" - whether solicitor caused costs to be incurred "improperly or without reasonable cause" - neither allegation made out

PROCEDURE - separate determination of questions - whether separate determination should be ordered - parties executed deed of release - one party seeks separate determination of question whether release precludes cross-claim as filed - cross-claim seeks order declaring deed of release void - separate determination not appropriate

EQUITY - unconscionability - undue influence - cottage built on defendants’ property at plaintiff’s expense - relationship between plaintiff and defendants broke down - plaintiff required to leave defendants’ property - whether unconscionable for defendants not to reimburse plaintiff for costs of construction of cottage - whether agreement or arrangement between defendants and plaintiff procured by way of unconscientious conduct or undue influence - HELD - no benefit unconscionably retained by defendants in circumstances - defendants did not act unconscionably or exercise undue influence in their dealings with plaintiff - CONTRACTS - whether intention to create legal relations in a domestic or social context - whether relief under Contracts Review Act - HELD - no intention to create legal relations - plaintiff’s claim dismissed

CONTRACTS – contract for sale of land – whether contract had been validly terminated for non-compliance with Notice to Complete – whether Notice to Complete was valid – whether Notice to Complete ought to have included an adjusted purchase price pursuant to s 66M Conveyancing Act – whether risk under contract for sale passed to purchaser already in possession pursuant to a lease agreement before the contract was entered into.

EQUITY - remedies - breach of fiduciary duty - account of profits - amount of "profit" or "benefit" received by solicitor in breach of fiduciary duty - whether solicitor's wife and company owned by her liable for account of profits under the second limb of Barnes v Addy ("knowing assistance") - PROCEDURE - judgments and orders - interest on judgments - time from which interest runs - PROCEDURE - costs - whether solicitor liable to pay plaintiff's costs - whether solicitor liable to pay plaintiff's costs on an indemnity basis - whether solicitor's wife and company owned by her liable to pay plaintiff's costs

CRIMINAL LAW – conviction appeal – former s 33 Crimes Act 1900 – wounding with intent to cause grievous bodily harm – whether trial judge erroneously directed jury that conviction could be based on recklessness – whether trial judge correctly directed jury on need to find both malice and intent to cause grievous bodily harm - CRIMINAL LAW – conviction appeal – self-defence – s 419 Crime Act 1900 – whether trial judge effectively reversed onus of proof – whether trial judge correctly directed jury that Crown required to prove beyond reasonable doubt that accused did not act in self-defence

ADMINISTRATIVE LAW - judicial review - grounds of review - Occupational Health and Safety Act 2000 - meaning of ‘exposed to risks’ in s 8(2) - whether there is a requirement for the prosecution to prove the actual exposure of a person or persons to a risk - whether it is sufficient for the prosecution to prove that a person or persons were proximate to the risk - ADMINISTRATIVE LAW - prerogative writs and orders - Occupational Health and Safety Act 2000 - where the Full Bench of the Industrial Court dismisses an appeal from the Local Court - where the Court of Appeal subsequently finds that the Local Court decision was vitiated by jurisdictional error - whether the prerogative writs should issue with respect to the orders of both the Full Bench and the Local Court - ADMINISTRATIVE LAW - judicial review - grounds of review - Occupational Health and Safety Act 2000 - inconsistencies in magistrate’s findings of fact

Family Law. Application under Property (Relationships) Act 1984 for adjustment of parties' property interests. Held there was no de facto relationship. In the circumstances other claims for relief not substantiated. Proceedings dismissed.

Duty of Care

CONTRACT – damages – excess interest charges – Hadley v Baxendale "second limb" – loss of chance damages – damages awarded - DAMAGES – contract – excess interest charges – Hadley v Baxendale "second limb" – loss of chance damages – damages awarded