Cases and authorities

ENVIRONMENT AND PLANNING – acquisition of land – compensation – valuation – loss attributable to disturbance – whether disputed costs would necessarily have been incurred in realising subdivision potential of acquired land – whether disputed costs involve double-dipping – whether unreasonable to allow costs attributable to payment of rent

Negligence - Duty of Care - Breach of duty - Valuation of real estate - Whether valuations performed by defendant constituted breaches of duty to exercise reasonable care and skill - Discussion of relevant principles - Trade Practices - Whether defendant valuer had engaged in misleading and deceptive conduct in relation to valuations - Reliance - Remoteness of Loss - Damages

PROCEDURE - Supreme Court procedure - judgments and orders - amending, varying and setting aside - setting aside default judgment - cross claim - question of delay - prejudice - whether there is an arguable case - is defence asserted bona fide - delay explained - arguable case shown - section 80 of the Consumer Credit Code - unconscionability - Contracts Review Act 1980 - default judgment set aside

CORPORATIONS - winding up - winding up by the court in insolvency - winding up order made in the company's absence - application by creditor/contributory/director for order setting aside the winding up order or in the alternative terminating the winding up - standing of creditor or contributory to seek order setting aside the winding up order - held any such application must be by the company - company cannot apply at instigation of officers except with s 471A(1A) approval - no such approval granted or sought - consideration of factors relevant to application to set aside order made at hearing in the absence of a party - applicant must show that it is unjust to allow the perfected order to stand - not shown in this case where plaintiff proceeded on faith of ASIC record of situation of registered office at a place at which the company was no longer contactable - alternative claim by creditor/contributory/director for order terminating winding up - standing unquestioned - distinction between approach on this application and the application for an order setting aside the winding up order - solvency sufficiently shown - winding up terminated

PROCEDURE - judgment and orders - setting aside - third application by Defendant to set aside default judgment - second application dismissed after contested hearing - further evidence filed which did not show Defence on the merits - no evidence adduced dealing with deficiencies identified in earlier judgment - abuse of process - application to set aside judgment refused.

FAMILY PROVISION - agreement to settle claim - three defendants associated with will beneficiary claimed orders awarding provision to plaintiff and disposing of proceedings on basis of alleged agreement in correspondence between solicitors for these parties - executors (also defendants) were not parties to this correspondence and did not support the alleged agreement - consideration of lack of enforceability of agreements to settle Family Provision claims unless an order has been made under Family Provision Act section 7 - on the facts, an order should not be based on the alleged agreement because the facts underlying the offer changed when principal will beneficiary died after the plaintiff's offer was made and before acceptance - on the terms of the letters there was no formation of contract by offer and acceptance - enforcement of alleged agreement was refused.

Join Insurer - Change name of defendant - Leave to amend statement of claim

PROCEDURE - parties' agreement noted by court - oppression proceedings between shareholders - court on a previous occasion noted parties' agreement and made orders by consent - orders include order for purchase by defendants of plaintiffs' shares in two companies at a price calculated by reference to expert's determination of value - parties' agreement concerns instructing of expert to determine value and acceptance of the determination - defendants seek order that plaintiffs and defendants give further instructions to expert - plaintiffs oppose such application - whether court has power to compel variation of parties' agreement - held no source of such power identified

CRIMINAL LAW- appeal- sentencing – sentencing judge wrongly excluded indirect provocation from the operation of s.21A (3) (c) of the Crimes (Sentencing Procedure) Act 1999 – appeal dismissed - CRIMINAL LAW- appeal- sentencing – failure of sentencing judge to give proper weight to provocation – appeal dismissed - CRIMINAL LAW- appeal- sentencing – sentencing judge erred in characterisation of the offence as mid range – appeal dismissed - CRIMINAL LAW- appeal- sentencing – sentence manifestly excessive – appeal dismissed

TORT – Negligence – Plaintiff injured by branch falling from tree – Claim for damages against lessor, and against council which had refused consent to remove tree – Whether breach of duty by council in adopting tree preservation policy, or by council officer in refusing consent to removal of tree – Whether breach of duty by lessor in not informing council of history of property damage and injury from tree – Whether any such breach of duty causative of injury to plaintiff.

ABUSE OF PROCESS – Court not bound to entertain argument where proceedings clearly abusive. - PRACTICE and PROCEDURE – Court not bound to entertain argument where proceedings clearly abusive.

TRADE AND COMMERCE - Trade Practices Act 1974 and related legislation - family company makes $100,000 loan advance - borrower defaults - borrower's lessor and franchisor engages in misleading and deceptive conduct inducing advance - representation as to future matter, as to likelihood of future repayment of loan - operation of Trade Practices Act, s 51A - proof of reasonable grounds - concurrent wrongdoers - apportionment made under Trade Practices Act, s 87CD and Civil Liability Act, s 35 - DAMAGES - for lender's lost principal, interest and for expenses of recovery - CORPORATIONS - charges - operation of lender's floating charge over borrower's assets - nature of chargee's rights to presentation of charger's assets - lessor/franchisor seeks charged assets - TORTS - interference with contractual relations - claim lessor/franchisor's actions impair lenders' right under charge - EQUITY - trusts and trustees - claim of knowing receipt of trust property.

CIVIL PROCEDURE – interlocutory application for access to documentary exhibit for forensic examination – quaere the existence of any genuine dispute as to authenticity or identity of the document– no reasonable forensic purpose identified – whether request reasonable in the circumstances - application refused

CONSTRUCTION - setting aside subpoena to ASIC to produce reasons and orders for disqualification from managing corporations for 18 months of important witness and transcript of his hearing before ASIC - no apparent connection between subject matter before ASIC and evidence sought to be adduced in Plaintiff's action - documents sought as relevant to credit

EXECUTORS AND TRUSTEES - very small estate - beneficiary seeks orders for passing accounts and completion of estate administration - estate may be insolvent - need to determine solvency to decide whether or not proceedings are futile - Civil Procedure Act, s 56 used to allow the issue of a subpoena for information as to solvency of the estate.

CONVEYANCING – CONTRACT FOR SALE – RESCISSION – ELECTION – WAIVER – before completion of contract, vendor creates restrictive covenant on title giving effect to an Environmental Management Plan, to ensure that soil contamination is properly managed – whether covenant detrimentally affects property to a substantial extent – whether purchasers entitled to rescind in accordance with contractual term – whether, after valid rescission, purchasers could elect to affirm contract. - DAMAGES – vendor holds property for three years after rescission of contract – whether vendor can recover as damages mortgage payments and holding charges incurred.

PROCEDURE - miscellaneous procedural matters - other matters - leave to further amend pleadings - leave granted - defendants seeking to strike out statement of claim pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 and/or in the alternative struck out on the basis it is statute barred pursuant to Limitation Act 1969 - whether pleadings are defective - whether amendments can save pleadings - orders dismissing proceedings refused - LIMITATION OF ACTIONS - general - statutes of limitation - section 50C and section 50D of the Limitation Act 1969 - COSTS - departing from the general rule - powers of court - impecuniosity not of itself sufficient to depart from usual rule

Criminal law - sentencing - whether hardship to mother and children amounted to special circumstances - whether sentence manifestly excessive.

CRIMINAL LAW - appeal against sentence - conspiracy to manufacture controlled drugs - relative roles of co-conspirators - parity of sentencing - whether reasons for different sentences for co-conspirators were adequate - no basis for a justifiable sense of grievance.

CRIMINAL LAW – appeal – sentencing – application of sentencing principles under the Children (Criminal Proceedings) Act 1987 (NSW) s 6 – failure to refer to evidence of character witness in sentencing remarks - CRIMINAL LAW – appeal – sentencing – grounds for discrimination between co-offenders – consideration of the roles and circumstances of different parties - CRIMINAL LAW – sentencing – irrelevant considerations – taking into account the standard non–parole period which was inapplicable because of age of offender – Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3) - CRIMINAL LAW – procedure – closed court – principle of open justice – discretion to direct that hearing proceed in open court – Children (Criminal Proceedings) Act 1987 (NSW), s 10.

CRIMINAL LAW - appeal against sentence - conspiracy to deal with money believed to be the proceeds of crime - whether sentencing judge erred in not affording 25 per cent discount for early plea

NEGLIGENCE – industrial accident – personal injuries – slip and fall sustained by factory manager - where slurry created as by-product of concrete cutting in factory – slurry deposited on floor where workers required to stand and work – slip hazard not avoided by institution of a safe system of work – unsafe system of work - breach of duty to provide a safe place to work

PROFESSIONS AND TRADES - lawyers - duties and liabilities - whether negligence in advising client in relation to guarantee in deed under which interest in real estate business acquired - in relation to terms of second deed settling certain disputes - in relation to agreement selling interest in business - nature of duty of care - duty of care owed - negligence established in part - questions of credit - advocate's immunity - section 5O of the Civil Liability Act 2002 - causal connection - inherent risk and contributory negligence - s 5I and s 5R of the Civil Liability Act 2002 - contributory negligence established - cross claim - concurrent wrongdoers - negligence established - were damages established - claimed damages established in part - TORTS - negligence - general matters - lawyers negligence - damages - EVIDENCE - admissibility and relevancy - witness not available for cross examination - s 135 of the Evidence Act 1995 - statements received - admissions - s 87 of the Evidence Act 1995 - admissions not established

CRIMINAL LAW - sentence - accessory before the fact to manslaughter, armed assault with intent to rob

PRACTICE & PROCEDURE – Substituted service – Application to set aside the service of originating process – Whether order for substituted service was correctly and appropriately made – Court’s general discretion to refuse application where applicant has taken an active role in proceedings.

CORPORATIONS - managed investment schemes - units of managed investment scheme and shares in company are together components of stapled securities - proposal to separate shares and units - application by responsible entity for judicial advice - single meeting of shareholders and unitholders proposed to consider resolutions to amend constitutions - whether single meeting appropriate - TRUSTS AND TRUSTEES - trustee's foreshadowed application for further judicial advice - desire of trustee to ensure that any beneficiary wishing to be heard should make applicastion by particular time - availability of Trustee Act s 63(10) to achieve that result

TORTS - personal injury - plaintiff was learner driver injured when vehicle collided with a tree - whether defendant breached the duty of care he owed as the supervising driver by failing to properly supervise, instruct and direct plaintiff - contributory negligence

Banker and customer - ANZ seeks to recover the moneys owing from the defendants pursuant to agreements, guarantees and/or mortgages of land given by the defendants - ANZ also seeks orders for possession of various mortgaged properties - Defendants seek relief from their obligation to pay ANZ because of a claim for damages and various other relief claimed including breach of a duty or contractual term of confidentiality, unconscionability, unconscionable or misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), and the Contracts Review Act 1980 (NSW) - ANZ discloses confidential information of customer to competitor seeking to have customer placed into liquidation - ANZ does not dispute that, in substance, ANZ employee conveyed to competitor that ANZ had concerns about group’s present financial condition and that ANZ was contemplating enforcing its security - Customer contends that the disclosure was a breach of the common law duty of confidentiality/secrecy owed by ANZ as a banker to its customer, a breach of a statutory duty not to disclose confidential information to third parties, a breach of an implied contractual term to the same or similar effect contained in each of the relevant agreements, guarantees and mortgages, and otherwise was negligent - Causation - Basic legal principle that plaintiff must prove its loss or damage was caused by the defendant’s breach, whether the plaintiff grounds its case in contract, tort or statute - Causation a question of fact - Want of proper claimants - “Prudential principle”, said to be derived from Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, denies to members of a company (a fortiori persons with more remote interests) the right to recover for themselves damages for wrongs done to the company, or damages reflective of damages suffered by the company. - Deeds - ANZ requires customers to enter into deed waving customers’ rights in respect of the confidential information as a condition for ANZ advancing funds permitting customer to have access to legal advice in the ensuing litigation leading to winding up of customer group - Whether deed enforceable - Whether ANZ’s conduct in requiring entry into the deed constituted unconscionable conduct in contravention of s 12 CC of Australian Securities and Investments Commission Act 2001 (Cth) - Whether s 12CC applies to present case - Whether defendants can claim relief under Contracts Review Act 1980 (NSW) in relation to deed - Whether defendants within exclusion contained in s 6(2) of that Act - Misleading or Deceptive conduct - Whether representations in question shown to be misleading or deceptive or likely to mislead or deceive at the time they were made - Whether relevant defendants demonstrated requisite reliance on alleged misleading and deceptive representations - Granting of relief under remedial provisions of Trade Practices Act 1974 (Cth) - Basal proposition that relief must be appropriate to any cause of action established

Interim access order for visitation rights- Supreme Court Act 1970, ss 23, 66, 69- whether Court of Appeal has power to grant interim relief where application for relief in lieu of certiorari- whether Court in supervisory role of jurisdiction should grant ancillary order pertaining to personal matter- Court has jurisdiction to grant mandatory interim injunction ancillary to relief sought under s 69- supervised access order granted on the merits on taking of personal undertakings- caution regarding use of s 69 to set aside or affect decision of District Court on statutory appeal from Children's Court.

Contract- Loan agreement- whether appellant personally liable to repay loan- whether personal guarantee. Equitable Compensation- interest- date of calculation- non-application of limitation period from date of payment- whether consistency required that the interest be calculated from the later date of the plaintiff's discovery of its loss. Equity- Fiduciary duties- whether appellant accountant undertook to act in the interests of the respondents as their investment advisor at the relevant time- appellant made investment suggestions or advice relating to a transaction he was involved in- relationship of friendship- primary judge erred in inferring provision of investment advice. Equity- Defences- limitation of actions- Limitation Act 1969- whether against conscience and unjust to apply limitation period by analogy calculated from date of investment. Statutory Interpretation- Real Estate and Business Agents Act 1978 (WA) ss 4, 60- whether appellant was carrying on a "business" in respect of a real estate transaction- isolated one off deal relating to two parcels of land not "carrying on a business" within s 4- whether s 60 disentitles appellant from receiving "any commission, reward, or other valuable consideration in respect of his services"- unlicensed appellant without appointment in writing signed by respondents.

DISCOVERY - claim for damages and injunctive relief for misuse of confidential information - whether documents sought reasonably necessary for defendant to properly defend claim - costs of discovery would be substantial

SERIOUS SEX OFFENDER - application for extended supervision order - application for interim supervision order pending final hearing - application for order for examination by psychiatrists - interim supervision order and order for examination made

STATUTES - acts of parliament - operation and effect of statutes - construction and interaction of Criminal Assets Recovery Act 1990 and the Real Property Act 1900 - whether caveat may be lodged pursuant to s 15(3) of the Criminal Assets Recovery Act when plaintiff has no right to lodge caveat under s 74F of the Real Property Act - effect of s 10A restraining order - construction of s 15(3) of the Criminal Assets Recovery Act - caveat may be lodged when NSW Crime Commission has no legal or equitable interest in Real Property Act land - caveat may be challenged under s 10C of the Criminal Assets Recovery Act, not s 74J of the Real Property Act - assets forfeiture order under s 22 of the Criminal Assets Recovery Act incompatible with indefeasible title under Real Property Act - purpose of Criminal Assets Recovery Act must be given effect - REAL PROPERTY - torrens title - caveats - whether caveat should be extended - s 10A restraining order under Criminal Assets Recovery Act - interests in property - whether plaintiff has any legal or equitable interest in the land - whether Real Property Act a code as to caveats - caveats under s 15(3) of the Criminal Assets Recovery Act - whether order sought under s 12 of the Criminal Assets Recovery Act should be made - caveat to be extended - costs

CRIMINAL LAW – Appeal against conviction – Sexual assaults – Tendency evidence – Trial judge does not direct jury that uncharged incidents suggesting sexual interest in the complainant must be proved beyond reasonable doubt – Whether a miscarriage of justice – Whether the proviso to s 6 of the Criminal Appeal Act 1912 should be applied.

Criminal Law - parity - whether bail conditions required reduction in sentence

CRIMINAL LAW – particular offences – offences against the person – sexual offences – offences relating to the administration of justice – perverting the course of justice – CRIMINAL LAW – appeal against verdicts of a jury empanelled pursuant to s 19 Mental Health (Forensic Provisions) Act 1990 – whether a special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act is, for the purposes of s 306I(1) of the Criminal Procedure Act, “a new trial” or “new trial proceedings” – whether s 306I(1) operates to permit evidence given by complainant in earlier trial to be tendered – whether trial judge failed properly to direct jury in relation to evidence of second pregnancy and DNA evidence – appropriate instructions given – ground without merit, leave to rely upon it refused – whether error in finding it was an aggravating factor that sexual offences were committed in the complainant’s home – STATUTES – Acts of parliament – interpretation – general approaches to interpretation – purposive approach – whole Act to be considered – presumptions as to legislative intention

CRIMINAL LAW - appeal by Crown against sentence - manslaughter - single punch - 17 year old offender - whether absence of planning in mitigation - discount for assistance - whether assistance of "a high order" - whether sentence manifestly inadequate - periodic detention - discretion to intervene.

LANDLORD AND TENANT - residential tenancies legislation - jurisdiction - no defence that Supreme Court has no jurisdiction under the Act - lease by implication of law - Defendant in occupation during and after occupation by registered lessee - Defendant paying rent due under registered lease - expenditure by Defendant for benefit of the land - principle in Ramsden v Dyson - no unconscionable behaviour on owner's part - no right to set off.

COMPROMISE – disable person - application by tutor for approval of settlement – removal of tutor with interest adverse to disable person – appointment of new tutor – settlement not in best interests of disable person – approval withheld.

TAXES AND DUTIES - Goods and Services Tax - Deputy Commissioner pleaded that plaintiff and others constituted a partnership - notice of assessment issued after proceedings instituted - notices of objection lodged claiming a joint venture and not a partnership - Deputy Commissioner allowed objection in full and sought leave to file a notice of discontinuance - defendant sought verdict and judgment - whether that would give the advantage of the prinicples of res judicata or issue estoppel - whether decision on notices of objection a supervening event such that Deputy Commissioner should be relieved from paying costs

CORPORATIONS – where defendant charged with contempt in respect of orders made under s 1323 of Corporations Act 2001 (Cth) in the nature of Mareva orders – where defendant submits that no case to answer – whether plaintiff’s evidence taken at its highest capable of establishing charges beyond reasonable doubt – construction of orders – onus on defendant to establish reliance on proviso to orders – whether relevant ambiguity in orders restraining removal from Australia and dealing with assets – whether use of credit card constituted “dealing” with asset – whether defendant in contempt for failing to produce bank statements if not in physical custody of statements

CORPORATIONS - winding up - statutory demand - application for order setting aside - service of originating process in another State - Service and Execution of Process Act not complied with - no effective service - application doomed to fail - PROCEDURE - costs - how costs discretion should be exercised where plaintiff's ineffective service was at address specified by defendant otherwise than in accordance with applicable requirement

REAL PROPERTY – Strata schemes – Agreement for managing common property – Whether such agreement was authorised by general meeting of owners corporation, or by its executive committee, or by the affixation of its seal, or was entered into by conduct. - CONTRACT – Breach – Repudiation – Whether conduct of manager of common property of strata scheme in using electricity chargeable to the owners corporation was a breach justifying termination of the contract. - EQUITY – Remedies – Injunctions – Whether grant of injunction an indirect way of compelling specific performance – Whether specific performance of agreement for the management of common property would be granted.

APPEAL – procedure – stay pending appeal - APPEAL – procedure – costs – security for costs – special circumstances – no question of principle

STRIKE OUT CROSS CLAIM - Guarantor - s 420A Forporations Act 2001 (Cth)

APPEAL - Local Court Magistrate - AGENCY -s 84(2) Trade Practices Act 1974 (Cth)