Cases and authorities

EQUITY - Trusts and trustees - evidence - powers, duties, rights and liabilities of trustees - issue about terms of trust - alleged trust instrument lost - trust found to exist and terms of trust inferred from secondary evidence - a half interest in real property as tenant in common was conveyed to a family member on trust for her grandchildren - trustee discharges mortgage in respect of the trust property and in respect of the other half interest in the property - trustee claims reimbursement for mortgage payments - whether payments were a gift or a loan - held - payments were a gift - trustee claims interest on payments - claim dismissed.

EVIDENCE - admissibility - coincidence evidence - whether significant probative value

PROCEDURE - notice to produce - UCPR 21.10(1)(b) - power of court to set aside in whole or in part - need for "specific document" to be "clearly defined" by notice - categories not permitted - whether "financial accounts" of a company for a given year satisfies "clearly defined" requirement - need for document sought relevant to a fact in issue - CORPORATIONS - winding up - winding up in insolvency - application for order setting aside statutory demand - alleged genuine dispute - defendant requires production of documents going to state of plaintiff's financial health - whether that is relevant to a fact in issue - held relevant to genuineness of asserted dispute

Judicial Review - Two accidents - Assessor's approach to apportionment

PROCEDURE - costs - costs of adjournment - late adjournment application - counsel - whether brief should have been refused - Bar Rule 87(a) and (c) - departure from usual order - parties' respective conduct - cost to be born by defendant - Suitor's Fund - certificate granted - variation made to earlier order

SHIPPING AND NAVIGATION - carriage of goods - appeal from Local Court - whether decision should be set aside because Magistrate failed to address defendant's defence - whether Supreme Court should determine matter - whether appellant entitled to assert lien on goods - whether appellant had bona fide belief that it was entitled to assert lien - whether giving up of right to lien constituted sufficient consideration for agreement between appellant and respondent

PROCEDURE – summary disposal of claim by trial judge - litigant subject to an order deemed to be a vexatious proceedings order– leave required under the Vexatious Proceedings Act 2008 to apply for leave to appeal – leave refused.

VEXATIOUS LITIGANT - order made under s 84(1) of the Supreme Court Act 1970 that the applicant not institute any proceedings without leave – application for leave to appeal against the order – whether leave required under the Vexatious Proceedings Act 2008 to institute the leave application – whether leave to appeal required - leave to appeal refused.

Family Provision. Claim by a son for whom no real provision made. Question of nature of relationship between plaintiff and testator. Order for further provision . No matter of principle.

CONTRACT – employment – termination – whether employee entitled to terminate by giving three months' notice. EMPLOYMENT - consequence of termination of employment relationship on obligations of the parties - whether restraint of trade clause enforceable - whether second defendant incorporated to avoid restraints imposed on first defendant. REMEDIES – injunctions – relevance of effect of injunction on third party. PROCEDURE – civil – jurisdiction – special federal matter

APPEAL - Local Court Magistrate - Whether there was an agreement for father to pay son's legal fees

PROCEDURE - civil - documents - affidavits - application to tender affidavit - whether statements constitute admissions - relevance - par 68 to the end of the affidavit rejected

APPEAL – civil – interlocutory orders – stay pending appeal – orders authorising sale of uncollected goods – stay of proceedings pending provision of security for costs - PERSONAL PROPERTY – bailment – authority to sell uncollected goods of bailor – whether reasonable opportunity to remove goods from premises - PROCEDURE – stay pending appeal – order permitting sale of uncollected goods – whether bailee entitled to impose conditions not contained in court order - WORDS AND PHRASES – "uncollected goods" – Uncollected Goods Act 1995 (NSW), s 5

APPEAL – civil – stay of orders made at trial – stay of execution of writ of possession - PROCEDURE – stay of execution of writ of possession – writ issues against occupant of land as licensee of Co-operative

ABUSE OF PROCESS – inherent jurisdiction – extends to restraining interlocutory applications after final judgment. - COURT & JUDGES – inherent jurisdiction – abuse of process – power to prevent in existing proceedings – extends to restraining interlocutory applications after final judgment. - PRACTICE & PROCEDURE – abuse of process – inherent jurisdiction – extends to restraining interlocutory applications after final judgment.

CONTRACT – employment – fixed term – repudiation – walk out by employee – contract not terminated. - CONTRACT – performance – readiness and willingness. - EMPLOYMENT – contract for fixed term – repudiation – walk out by employee – contract not terminated. - EMPLOYMENT – repudiation – walk out by employee – negative restriction – injunction – contract not terminated – employer’s direction to return to work – whether reasonable.

CORPORATIONS - registered managed investment scheme - alteration of constitution by special resolution - form of resolution in notice of meeting refers to amending deed in form produced to meeting and initialled by chairman for identification - form of such deed accompanying notice contains blanks for dates - these dates completed in form initialled by chairman which also reflects change of name of an entity - lack of correspondence accordingly between the two documents - whether procedural irregularity for the purposes of s 1322(2)

Practice and procedure - stay of proceedings where claim based on legislation the validity of which is challenged in other proceedings - where plaintiffs no longer party to those proceedings

PROCEDURE - civil - pleadings - whether leave to file defence to amended cross-claim - allegation of forgery - whether substantial prejudice caused by pleadings - dictates of justice - paragraph disallowed - leave to file defence granted

CORPORATIONS – STATUTORY DEMAND – whether Plaintiff has demonstrated it has genuine claim to offset whole of Defendant’s debt – no question of principle.

ADMINISTRATION LAW - judicial review - whether District Court failed to accord procedural fairness - APPEAL - civil - whether appeal from District Court exercising appellate jurisdiction from Consumer, Trader and Tenancy Tribunal - jurisdiction arising under another Act - District Court Act 1973, ss4, 9, 44, 127 - PROCEDURE - amendment - leave to amend summons seeking leave to appeal to seek judicial review - whether arguable case of jurisdictional error - WORDS & PHRASES - "action" - District Court Act 1973 (NSW), ss 4, 9, 44, 127

PROPERTY - goodwill - CONTRACT - breach of fiduciary duty - alleged merger of two businesses of A & B - no contract concluded before the two businesses begin to be carried on as one by B with A's consent - agreement never reached as to proportionate interests in the consolidated business - B has discussion with C about selling the consolidated business to C - A warns B and C that no sale must take place without A's consent in the light of A's claim to have an interest in the business - and in view of the dispute between A and B as to the existence and extent of A's interest, C decides not to purchase - however, B, wishing to be relieved of the business, allows C to take over the running of it, provided C assumes liability for rental of all property used in the business - A accuses C of having purchased with knowledge of A's interest - C denies having purchased at all, but in any event offers to hand over the business to A - A does not take up the offer - A sues B who does not appear and whose whereabouts are not known, and C for having participated in B's wrongdoing. - HELD: A's claim not proved - no suffering of loss proved. Proceeding dismissed with costs.

Judicial Review - Motor Accidents Authority of NSW - decision of Assessor and Review Panel

CRIMINAL LAW – appeal – conviction – summing up – failure to put defence case to jury – where Crown case substantially based on evidence of one witness – failure to direct jury as to manner in which Crown relied on that evidence - CRIMINAL LAW – appeal – conviction – evidence – whether verdict unreasonable or unsupportable on evidence – where evidence of central Crown witness implicating accused uncertain

ADMINISTRATIVE LAW – judicial review – grounds of review – Building and Construction Industry Security of Payment Act 1999 – whether an incorrect determination by an adjudicator that a s 17(2) notice was served within the prescribed time amounts to jurisdictional error – whether Brodyn Pty Ltd v Davenport correctly decided. - ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – Building and Construction Industry Security of Payment Act 1999 – whether determinations by adjudicators amenable to orders in the nature of certiorari for jurisdictional error – whether adjudicators are exercising a statutory function – whether there is a superadded requirement that an adjudicator is subject to a “duty to act judicially” before being amenable to prerogative writs. - ADMINISTRATIVE LAW – judicial review – privative clauses – Building and Construction Industry Security of Payment Act 1999 – whether the Act limits the power of the Supreme Court to review an adjudicator’s determination – whether such a limitation is permissible in light of Kirk v Industrial Relations Commission. - BUILDING AND CONSTRUCTION – security of payment – procedure for recovering progress payments – adjudication of disputes – Building and Construction Industry Security of Payments Act 1999 s 17.

CORPORATIONS - arrangements and reconstruction - scheme for acquisition of stapled securities consisting of shares in a company and units of two managed investment schemes - acquisition to be achieved by Part 5.1 scheme and amendment of constitutions of managed investment schemes - consideration consisting of partnership interests in Bermuda limited partnership - certain foreign holders to receive wholly cash consideration - other holders may elect to receive cash instead of partnership interests but limited to 4,000 such interests - whether these provisions are class-creating - whether s 411(17) implications

PROCEDURE - judgments and orders - interest - interest up to judgment - from when computed - relevant rate - PROCEDURE - costs - departing from the general rule - whether costs orders should be made with respect to distinct issues - no reason to depart from general rule - PROCEDURE - each party obtains money judgment - one party obtains costs order - costs yet to be quantified - whether there should be set-off - whether there should be stay

Negligence – Whether breach of occupiers duty causing harm – If so whether contributory negligence – Action against person other than employer – Application of s 151Z of the Workers Compensation Act 1987 (NSW) – Assessment of damages

CONTEMPT OF COURT – use of document produced on discovery and on subpoena for purpose unconnected with proceedings, without leave of Court – document used in attempt to gain commercial advantage – contempt found – apologies accepted.

CONTRACT - loan secured by mortgage - applicable interest rate - allegation that loan contract altered by lender after signature by borrowers

CONTRACT - employment contract - restraint of trade clause - first employer obtained clause preventing engagement for 6 months after termination in "any trade or business which directly competes with [first employer"] - employee classed as International Program Manager resigned and went straight to second employer which conducted competing businesses - observations on enforceability of retraint - on construction of clause, "any trade or business" referred not simply to identity of new employer but to trade or business activity in which employee was engaged - on the facts Managed Services was a separate trade or business from new employer's other businesses and employee was engaged only in that separate trade or business - although the end product was similar, the manners of provision were different in ways which customers were likely to regard as significant - consideration of "direct competition" - on the facts the first employer had not shown that there was direct competition - proceedings dismissed

FAMILY LAW AND CHILD WELFARE [105] - De facto relationships - Legislation - New South Wales - Property (Relationships) Act 1984 - Adjustment of property interests - Discretion - Principles on which exercised

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 - meaning of "frequently".

NEGLIGENCE – Occupier’s liability – breach of duty – risk not obvious – no question of principle. - OCCUPIER’S LIABILITY – breach of duty – risk not obvious – no question of principle.

EVIDENCE – admissibility of market assessment as to property value – whether admissible under business records exception in Evidence Act 1995 (NSW), s 69 –whether business record admissible under s 69 subject to opinion rule – evidence excluded under opinion rule – no evidence of author’s qualifications, compliance with Expert Witness Code of Conduct, or assumptions for opinion – alternatively, evidence excluded under s 135

CORPORATIONS – application under Corporations Act 2001 (Cth), s 482 to stay or terminate winding-up of defendant company – application made by contributory and sole director of defendant company – where applicant proffered undertakings to seek adjournment of proceedings to make arrangements to discharge liabilities – onus on applicant to make out positive case for application – considerations relevant to grant of application – where evidence that company insolvent – where applicant failed to provide books and records to liquidator – where no evidence from external party to corroborate applicant’s assertions as to company’s financial position – not in the public interest or interests of commercial morality to restore stewardship of company to applicant’s control – undertakings proffered not proper basis for adjournment - COSTS – whether company’s liquidator and major creditor entitled to indemnity costs – where applicant delinquent in pursuing application

PRACTICE AND PROCEDURE – INDEMNITY COSTS – Plaintiff’s Motion dismissed – evidence given by Plaintiff’s solicitor in support of Motion not frank – conduct of Motion by Plaintiff deserving of criticism.

CONTRACTS – construction of lease – where lease required lessee to deliver up land free of all improvements and to remediate land so that it could be put to its highest and best use – whether ‘highest and best use then permitted under the zoning of the land’ includes a lawful existing use – whether it includes potential attribute of subfloor excavation or basement – what was ‘highest and best use’ within meaning of lease – whether land was in condition such that lessee sufficiently complied with obligations under lease or later agreement – whether lessee provided lessor with independent expert certificate that lessee had complied with obligations under lease – whether any negligent misrepresentations made. - TRADE PRACTICES – whether lessee engaged in misleading or deceptive conduct – Trade Practices Act 1874 s 52. - DAMAGES – whether damages recoverable for misleading or deceptive conduct – whether damages recoverable for negligent misrepresentation – whether damages recoverable in respect of any breach of lease or later agreement – whether lessor failed to mitigate loss – remoteness of loss – nature and amount of any loss and damage suffered.

ADMINISTRATIVE LAW - judicial review - natural justice or procedural fairness - duty to give notice. HOTELS AND GAMING - Gaming Machines Act - transfer of poker machine entitlements - whether lease gave interest in entitlement - whether plaintiff entitled to restrain transfer. TORTS - detinue - conversion

CRIME – sentencing – whether sentencing proceedings miscarried because evidence as to applicant’s disability not fully understood until after sentence imposed – whether fresh evidence should be admitted in the appeal

CRIME – sentencing – crown appeal – whether judge gave inadequate weight as to objective seriousness of offence – whether erred in taking into account the need not to deter parents from reporting unlawful conduct of their children – whether sentence manifestly inadequate – sentencing discretion properly exercised

CRIMINAL LAW - verdicts of guilty on some counts - inconsistent verdicts - Jones v The Queen (1997) 191 CLR 439 - unreliability of complainant's evidence on all counts - CRIMINAL LAW - verdicts of guilty on some counts - jury properly directed to give separate consideration to each count - verdicts not inconsistent - MFA v The Queen (2002) 213 CLR 606 - CRIMINAL LAW - sexual assault - competing medical evidence - no error in jury accepting one medical expert over the other

APPEAL – criminal – appeal against conviction – whether verdict unreasonable in light of acquittals on 4 other counts, including one offence which was alleged to have occurred during the same incident as the convicted offence – whether conviction unsupported by evidence - APPEAL – criminal – appeal against conviction – whether trial judge put defence case adequately in summing up to jury – no further direction sought at trial – leave required – Criminal Appeal Rules, r 4 - PROCEDURE – criminal – appeal against conviction – verdict unreasonable or not supported by evidence – not on question of law alone – leave required – Criminal Appeal Act 1912 (NSW), s 5 - WORDS AND PHRASES – "question of law alone" - Criminal Appeal Act 1912 (NSW), s 5

APPEAL against conviction – judge alone trial – principles to be applied on appeals from verdict of a judge sitting without a jury – appellant convicted of offence under s.47 Crimes Act 1900 – throwing destructive substance (petrol) over female complainant – appellant did not hold a lighter or point of ignition – whether that was an “indispensable” link in the chain of reasoning towards guilt – whether evidence established that the appellant had the required intention to burn the complainant at the time of pouring the petrol – whether the finding that he did have such intention was the only rational or reasonable inference available from the evidence – the actions and utterances of the appellant in combination established to the requisite standard an intention to burn – the fact that he did not hold a lighter not an indispensable fact or link – Crown had discharged onus of proof – only inference to be drawn beyond reasonable doubt was that the appellant had that intention

CRIMINAL LAW – appeal – sentence- offence maliciously inflict grievous bodily harm with intent to murder – sentence judged erred in classifying case as worst case category – lacking premeditation – absence of weapon – appeal dismissed