Cases and authorities

Environment and Planning- Development Consent- Construction- whether consent allowed for staged development of subdivision- whether breach of condition in respondent's failure to submit a plan to council for extension of public road access to boundary of appellants' land- whether primary judge erred in declining to construe condition in the absence of council's submissions and in finding consent not breached. Remedies- Declarations- whether utility in making declaration- matter does not arise until uncertain future event- no certainty that all parties affected by declaration are parties to the appeal- deficient form- failure to identify event or time from which public road access to appellants' lot was required- no declaration made.

FIDUCIARY DUTY: loyalty - fair and open dealing - honesty - FIDUCIARY DUTY: accountant - non-traditional category - particular circumstances - EQUITABLE COMPENSATION: causation and principles - Brickenden's case - EVIDENCE: complex fact findings - practical limits in explaining all considerations and impressions - CREDIBILITY: reconstruction - uncorroborated assertions - principle in Watson v Foxman - COSTS: Sanderson order

CORPORATIONS – application by plaintiff for removal as liquidator and as deed administrator and for appointment of replacement liquidator and deed administrator – where plaintiff is incumbent liquidator and deed administrator – where application made due to plaintiff’s inadequate professional indemnity and fidelity insurance and lack of resources and infrastructure to assist in discharge of duties – sufficient cause shown to order plaintiff’s removal as liquidator under Corporations Act 2001 (Cth), s 473(1) – need for orders under s 447A to modify Part 5.3A of Corporations Act to authorise plaintiff’s removal as deed administrator on own application – appropriate to make orders under s 447A in circumstances – plaintiff undertakes to bear costs of application personally – no evidence of orders adversely affecting other parties with interest in application

CORPORATIONS - voluntary administration - application for order extending convening period for second meeting - extension of seven weeks sought - where business to be sold but in such a way that proceeds will not be known until 31 October 2010 - director may then propose deed of company arrangement - administrators in any event need to know outcome before formulating recommendations - objection by lessor - administrators personally liable for rent - administrators assure court that they will allow lessor to show premises to prospective new tenants

CONSUMER CREDIT - Credit Protection - loan facility to trustee company - whether sham or pretence and individuals the real debtors - whether Consumer Credit Code, s 6(1)(a) satisfied - whether interest rate included a penalty - whether should be set aside - second mortgage finance - whether an order for possession and leave to issue a writ for possession should be made - whether the lender should conduct sale of mortgaged properties

COSTS - will construction - discretionary costs rulings on [2009] NSWSC 857 - conflict extended beyond will construction - unsuccessful plaintiff to pay own costs, executor's costs of litigation out of asset in dispute, observations onincidence of general costs administration.

PROCEDURE - personal injuries claim - proceedings given an early date on Plaintiff's application - Plaintiff change of solicitors - application to vacate the hearing - delay in obtaining file from previous solicitors - separate hearing ordered on liability.

CORPORATIONS – application for directions by liquidators under s 479(3) of Corporations Act 2001 (Cth) as to distribution of funds under control – where director had engaged in securities and derivatives trading on behalf of clients without financial services licence – whether liquidators justified in treating funds as held on trust for investors – sale of securities held on trust for individual investors – whether liquidators justified in distributing to individual investors proceeds from sale of securities due to some intermingling of investors’ funds – extent of intermingling – no question of principle

Contracts - Building, engineering and related contracts - Application to restrain calling up of performance guarantees under contract - Whether prima facie case established - Consideration of whether there need only be genuine dispute as to whether there had been default necessary to enliven contract right to call on guarantees

EVIDENCE - subpoenas - legitimate forensic purpose - application to set aside - whether subpoena which seeks documents relevant only to credit of Crown witness other than the informant is legitimate - where credit is an important issue - whether reasonable grounds to think that documents relevant to impugned credit will be found - APPEAL - interlocutory application before Local Court - leave to appeal necessary - clear error of law - limitations on role of Court hearing appeal.

PRACTICE AND PROCEDURE – Summary judgment – Whether the proposed defence demonstrates the claim – Whether the Court has all the requisite material to reach a definite and certain conclusion. - PRACTICE AND PROCEDURE – Summary dismissal of cross-claim – Whether the proposed amended cross-claim has any prospects of success. - EQUITY- Unconscionable conduct – Defendant’s directors unable to speak or read English – Whether bank could reasonably have known any facts or matters so as to make its conduct unconscionable. - MORTGAGES AND SECURITIES – Default – Recovery of money.

CRIMINAL LAW - appeal against sentence - pleas of guilty to two counts of supplying drugs (ecstasy and methylamphetamine) - two counts of unauthorised possession of a pistol and one count of dealing with proceeds of crime - whether sentences imposed on supply offences were manifestly excessive - whether aggregate sentence was manifestly excessive - whether Judge failed to give effect to a finding of special circumstances

APPEAL – civil – whether cause for expedition of the hearing of the appeal - APEAL – civil – whether orders from primary judge should be stayed pending appeal - PROCEDURE – civil – orders – variation of stay

PRACTICE AND PROCEDURE – Application to strike out pleadings – Many paragraphs of pleadings are of questionable relevance – Underlying facts not clearly pleaded or particularised – Causes of action and basis of relief unclear – Orderly process of litigation demands that the fundamental principles of pleading be adhered to – Requirement to particularise any pleading of a dishonest and fraudulent design.

CORPORATIONS – application for orders under Companies Act 1961 (NSW), s 307 declaring dissolution of defendant void and s 366 for enlargement of time to bring proceedings – where plaintiff commenced proceedings against defendant for workers’ compensation for mesothelioma said to arise from asbestos exposure when defendant’s employee – where substantial effluxion of time since winding up of defendant and distribution of assets – where defendant required to be reinstated in respect of workers’ compensation proceedings – dissolution of defendant declared void on terms – appropriate in circumstances to wind up defendant on just and equitable ground and dispense with procedural requirements for winding up

TORTS - negligence - duty of care - duty owed by mine operator to employee of labour hire company - existence of duty and content of duty - Leighton Contractors Pty Limited v Fox [2009] HCA 35 - application of that case - standard of care - assumption by mine operator of responsibility to supervise - knowledge of defect in system - what was required to meet standard of care - whether breach of duty established - TORTS - adjustment of liability between mine operator and employer - non-delegable duty of employer owed to employee - TORTS - contributory negligence - experienced plant driver - attempting to implement unsafe system of work - DAMAGES - application of Civil Liability Act 2002 and Workers Compensation Act 1987, s 151Z(2) - DAMAGES - effect of medical evidence - effect of observations made of plaintiff.

CORPORATIONS - external administration - partner in firm holds office as liquidator and adminisrator of deed of company arrangement - partner resigns from firm - need to appoint replacement liquidator or administrator - advantages in keeping the administration within the firm - efficient course is for court to make appointments - various forms of appointment depending on circumstances - syncronisation of half-yearly reports

CRIMINAL LAW - sentencing - where sentence imposed for an offence more serious than the charged offence - Crown concession of error - re-sentence

CRIMINAL LAW – particular offences – drug offences - knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug - CRIMINAL LAW – application for leave to appeal against sentence – whether error in finding no evidence of real contrition or remorse – whether error in assessment of objective criminality – whether failure to take into account nature of drug as precursor – whether failure to provide reasons for finding that matter fell into middle range of objective seriousness for purpose of application of standard non-parole period – no error found

CRIMINAL LAW – appeal – Criminal Appeal Act 1912, s 5F (3A) – appeal against decision on admissibility of evidence – requirement that decision eliminated or substantially weakened the prosecution’s case - CRIMINAL LAW – appeal – interlocutory orders – Evidence Act 1995, s 97 – the tendency rule - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – requirement that evidence of tendency have significant probative value - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – factually similar cases – inappropriateness of equating tendency evidence with coincidence evidence - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – whether “sufficient similarity” or “striking similarity” required in establishing tendency - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – whether a pattern of behaviour, modus operandi or system or pattern with common threads is required in establishing tendency - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – evidence of tendency of principal of college to have sexual interest in young male students and to engage in sexual activities with young male students - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – multiple allegations – evidence of each allegation “different” – whether separate counts on indictment be heard together

ADMINISTRATIVE LAW - judicial review - not available to quash acquittal in criminal proceedings - COSTS - general rule that costs follow the event - self-represented respondent - payment of reasonable expenses including lost wages

CRIMINAL LAW – incitement to commit indecency – elements of offence – whether characterisation of the act incited as indecent depends on the purpose of the person committing the act, or the purpose or understanding of the person who incites – Crimes Act 1900 (NSW), s 61N(1) – CRIMINAL LAW – incitement to commit indecency – evidence – the scope of circumstances permissible to consider in determining whether an act was an act of indecency – Crimes (Appeal and Review) Act 2001 (NSW), s 56(1) – CRIMINAL LAW – incitement to commit indecency – significance of the act incited by the applicant being an act engaged in by the complainant – Crimes Act 1900 (NSW), s 61N(1) – APPEAL – appeal from Local Court to Supreme Court – powers of Supreme Court – WORDS AND PHRASES – “act of indecency” – Crimes Act 1900 (NSW), s 61N(1)

PRACTICE AND PROCEDURE – Judgments and orders – Amendment of orders – Slip rule – No error or mistake in original orders – No accidental or inadvertent failure – Issue not litigated in the course of the hearing – No basis for application of slip rule. - PRACTICE AND PROCEDURE – Costs – Costs on an indemnity basis – Unreasonable to have brought proceedings – No reasonable prospect of success – Warnings given by opponent’s legal representatives.

CONTRACT - restraint of trade - contract of employment contained non-recruitment covenant (anti-poaching) restraining engaging or soliciting staff for 12 months after termination of employment - application for interlocutory injunction - enforceability of restraint on engaging or soliciting staff - prima facie case of soliciting one staff member who had made initial approach to defendant - on the evidence there was faint ground for apprehension of future breaches - interlocutory injunction refused.

PRACTICE AND PROCEDURE – REPRESENTATIVE ORDER – thirteen plaintiffs with separate cases but common questions of fact and law – whether representative order appropriate in case management – no question of principle.

CORPORATIONS – application under Corporations Act 2001 (Cth), s 459G to set aside statutory demand – whether proceedings validly constituted – where originating process not signed by plaintiff company’s sole director or solicitor – whether defect or irregularity can be cured by s 467A and s 1322 of Corporations Act – where no evidence of substantial injustice caused by defect or irregularity – where evidence that sole director knew and approved of institution of proceedings – where genuine dispute about debt

CORPORATION [1117] - Share capital - Shares - classes of shares and shareholders - Redeemable preference shares - Shares issued as redeemable prefrence shares given no preference over issued shares, only over unissued shares - No valid issue of redeemable preference shares - Purported redemption invalid.

CONTRACT – construction – commercial agreement – under a Business Direct Channel Partner Agreement (“the Agreement”) the defendants (“Optus”) engaged the plaintiff to market and sell telecommunications products and services on its behalf – clause 27.3(a) (“the first clause”) of the Agreement provided that Optus may terminate the Agreement by giving notice if the plaintiff breached any term of the Agreement – clause 27.3(b) (“the second clause”) of the Agreement provided that Optus may terminate the Agreement for any reason and at any time in its absolute discretion by giving notice – Optus purported to terminate the Agreement by notice stating that it was under the second clause – the plaintiff contended that on its proper construction the notice was invalid because it was under the first clause and breach had not been established – IMPLIED TERMS – in the alternative the plaintiff contended that Optus was under an implied obligation to act in good faith in exercising its right to terminate under the second clause and had acted in breach of that obligation – HELD – on its proper construction the notice was under the second clause – Optus was under no obligation to act in good faith in exercising the right to terminate and if it was it had not breached it

PROCEDURE - Supreme Court procedure - New South Wales - notice of motion - orders sought pursuant to Part 10.14 of the Uniform Procedure Rules 2005 - substituted and informal service - unsuccessful attempts to locate first defendant - first defendant had admitted receipt of statement of claim - order made under Rule 10.14(3) of the Uniform Procedure Rules - costs - plaintiff to bear the second defendant's costs of the motion

Arbitration - Judicial supervision/review - Discussion of relevant principles - Gordian Run-off Pty Ltd v Westernport Insurance Corporation (2010) 267 ALR 74 applied - Whether the plaintiff should be granted leave to appeal a question of law arising out of the award under s 38(4)(b) of the Commercial Arbitration Act 1984 - Whether the determination of the question of law sought to be appealed by the plaintiff could substantially affect the rights of one or more of the parties within the meaning of s 38(5)(a) of the Act - Whether the award discloses a manifest error of law on its face within the meaning of s 38(5)(b)(i) of the Act - Whether the defendant should be granted an extension of time to apply for leave to appeal - Technical Team Projects v Noble Dunn (1990) 20 NSWLR 221 applied

PROCEDURE – judgment and orders – setting aside - Notice of Motion to revive proceedings that were earlier dismissed for failure to comply with directions, for an abuse of process and failure to prosecute with due despatch – exercise of Court’s discretion does not favour reinstating the proceedings.

ADMINISTRATIVE LAW - residential building work - supervision and co-ordination - quantum meruit.

CORPORATIONS - voluntary administration - application for extension of convening period for second meeting of creditors - group of associated companies with inter-company debts - real property assets of most companies in hands of receivers - receivers plan sale - positions of respective companies will be clearer after sale - deferral warranted

Application for leave -- private prosecution for perjury – necessity to show reasonable prospects of success – mere attempt to relitigate lost case.

Leave to file cross claims

COSTS -- assessment -- certificate -- taken to be judgment when filed in Court -- certificate set aside on appeal -- effect on judgment - JUDGMENTS & ORDERS -- permanent stay of judgment -- effect - LEGAL PRACTITIONERS -- costs -- assessment -- certificate -- taken to be judgment when filed in Court -- certificate set aside on appeal -- effect on judgment - RESTITUTION -- moneys paid under judgment based on costs certificate -- certificate set aside on appeal -- costs respondent entitled to restitution of moneys paid pending fresh assessment

STATUTORY INTERPRETATION – Roads Act 1993 (NSW) – liability for damage to public road – whether proof of culpability required – causation – whether open to defend claim under statute on the grounds of contributory negligence - TORTS – negligence – statutory duty – whether cross-claim against RTA liable to be summarily dismissed

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Application for orders – relevant considerations – whether adoptive parents fit and proper parents – where application made under (NSW) Adoption Act 2000, s 101 – where child over eighteen years of age – whether natural father’s consent necessary – whether notice to natural father pursuant to s 88 required.

CRIMINAL LAW - sentence - manslaughter - excessive self-defence and provocation - deceased killed by knife that he brought to the scene.

TRADE AND COMMERCE - Trade Commerce Generally - Restraint of Trade - injunctions and damages in lieu or in addition - application to restrain medical practitioners under post-term restraints from practising at another medical centre within a 3 kilometre radius of former medical centre for 12 months - plaintiff provided exclusive administrative services to doctors - nature of goodwill - whether a legitimate interest - whether post-term restraints reasonable

NEGLIGENCE - Civil Liability Act 2002 - dive from a vessel causing serious injury - whether duty of care - whether breach of duty - whether risk was an 'obvious risk' - whether dive was a 'dangerous recreational activity' - whether Limitation of Liability for Maritime Claims Act applies - whether vessel a 'seagoing ship'

CRIMINAL LAW - costs awarded against prosecutor - committal proceedings -offences against the Corporations Act 2001 - particulars of offences amended - whether in those circumstances the offences were "not the same" - whether "exceptional circumstances" existed

PROCEDURE - Supreme Court procedure - joinder application - joinder refused - order staying eviction refused - REAL PROPERTY - torrens title - caveats against dealings - application for extension of caveat - no equitable interest established - no basis for an extension - whether caveat should be removed - section 74MA of the Real Property Act 1900 - order for caveat to be withdrawn - COSTS - whether there should be a departure from general rule - indemnity costs order sought - no basis for any departure from usual order - costs as agreed or assessed

PROCEDURE - costs - application to have costs order set aside and varied under UCPR 36.16 - relevant principles for the award of costs - general rule that costs follow the event - insufficient basis for departing from general rule where appellant failed to disturb any significant aspect of the orders made in the court below

WILLS & ESTATES – construction of will – clause determining the manner in which testator’s house and contents would be dealt with – whether clause operated to cause remainder consequent on child K’s death to vest in interest in two other children, D and I, from the date of testator’s death, subject to defeasance if K died leaving one child above the age of 21 – ascertaining basic scheme of will as aid to construction – drawing assistance from the presumption against intestacy – vesting of a gift – whether Boraston’s case was misapplied – preference for construing gift as vested – distinction between vested estates in land and contingent remainders – authorities discussed - REAL PROPERTY – vested and future contingent interests – whether limitation amounts to vested remainder or contingent remainder – discussion of concepts of “vested”, “estate in land” and “contingent remainder” – relevance of Luddington v Kime – contingent remainders as property rights

EVIDENCE – Privilege against self-incrimination – compellability of witnesses – Certificate under s 128 of the Evidence Act 1995 – Whether certificate available to a party giving evidence in chief.

APPEAL – civil – appeal from decision of the District Court in point of law – failure to give any or adequate reasons – failure to make findings on essential elements of applicant's case - APPEAL – civil – jurisdiction – whether there was a failure to exercise the jurisdiction conferred – District Court Act 1973 (NSW), s 142N - SUPERANNUATION – review of decision – whether specified infirmity was caused by the member being “hurt on duty” – Police Regulation (Superannuation) Act 1906 (NSW), s 10B(3) - WORDS AND PHRASES – District Court Act 1973 (NSW), s 142N - award of the Court "in point of law"