Cases and authorities

CONTRACT – breach of warranty of authority – whether solicitor acting for the purchaser of a residential property represented or warranted that he had the authority to act for the purchaser’s wife in contracting on her behalf so as to make her a co-purchaser of the property - CONSTRUCTION OF DOCUMENTS – issues of construction of correspondence – request by letter to vendors’ solicitor to have the purchaser’s wife “added … as a joint purchaser pursuant to s.18(3) of the Duties Act 1997 …” – inconsistency in the letter – s.18(3) permitting exemption from duty when a “related person” is added to the transfer who is not a party to the contract – principles relevant to breach of authority – presumption that a solicitor does not have implied or ostensible authority to contract on behalf of a client in relation to a sale of land not rebutted – the solicitor did not make a representation or warranty as alleged – further no evidence of an intention to contract

CONTRACT - construction - joint venture agreement - agreement to develop and license computer software to third parties - where royalties payable on "sales" of software by either party after termination of agreement - whether "sales" included initial maintenance fees and additional maintenance fees paid by licensees to either party

CORPORATIONS – application under Corporations Act 2001 (Cth), ss 459Q and 461 for winding up defendant for insolvency based on non-compliance with statutory demand – where defects or irregularities exist in connection with application for winding up – where some defects or irregularities did not cause substantial injustice – whether court should dismiss application because plaintiff’s failure to advertise winding up application was defect or irregularity that has caused substantial injustice – whether court should dispense with step of advertising under s 467(3)(b) – no evidence that failure to advertise has caused substantial injustice

APPEAL – civil – evidence – whether conclusion supported by evidence - COSTS – claim by unsuccessful plaintiff where defendant failed to disclose identity of concurrent wrongdoer – plaintiff making no inquiry as to identity of manufacturer where denied by defendant - Civil Liability Act 2002 (NSW) s 35A - COSTS – indemnity costs – offer of compromise by defendant – whether appropriate to award indemnity costs where defendant failed to disclose identity of concurrent wrongdoer – Civil Liability Act 2002 (NSW) s 35A - PROCEDURE – reopening sought after delivery of judgement – application to call evidence available at all stages – evidence not called because thought unnecessary – forensic decision not to call at appropriate time – application refused

PRACTICE AND PROCEDURE - application for leave under Felons (Civil Proceedings) Act 1981 - plaintiff serving sentences of imprisonment for serious indictable offences - claim for damages against State of New South Wales - plaintiff sexually abused as a minor - claim of negligent failure by YACS in approving plaintiff’s residence and employment with perpetrator - whether prima facie ground for action - faint reliance upon pleaded claim - principal reliance upon unpleaded claim arising from the evidence - leave granted - LIMITATION OF ACTIONS - sexual abuse of plaintiff between 1979 and 1983 - Statement of Claim filed in 2005 - determination of separate question - whether limitation period suspended by disability - mental condition and imprisonment - whether plaintiff incapable of or substantially impeded in management of his affairs in relation to cause of action against State of New South Wales - held limitation period expired before filing of Statement of Claim

CORPORATIONS – Corporations Act 2001 (Cth) sections 761D, 761E, 763A, 763B, 763C, 764A, 766A, 766C, 765A, 924A, 925A – under a litigation funding deed (“the Deed”) the first defendant agreed to fund litigation by the plaintiff on specified terms and conditions – the plaintiff purported to rescind it relying on provisions of the Corporations Act 2001 (Cth) which enable it to do so if the arrangement constitutes the issue of a financial product by a person not licensed to do so – the first defendant does not hold an Australian financial services licence – whether the arrangement is a financial product as defined – whether it is a derivative – whether under it the first defendant manages financial risk – held the arrangement is not a financial product and the plaintiff was not entitled to rescind it - CONTRACTS – construction of commercial contracts – Deed provides that on Resolution of the funded proceedings the first defendant funder is entitled to share in any Resolution Sum paid and to repayment of the Legal Costs funded (“the Funding Fee”) – Deed also provides for the payment to it of an Early Termination Fee upon a Change in Control of the plaintiff – a Change in Control occurred – common cause that if the Deed is on foot the first defendant is entitled to the Early Termination Fee – whether on the proper construction of the instrument the funder is entitled also to the Funding Fee – held the first defendant is not entitled to the Funding Fee as well

CORPORATIONS - winding up - interlocutory application for appointment of provisional liquidator - where directors are agreed in principle on best course for company - where differences of opinion on matters of detail only - held intervention by court not warranted

INTERLOCUTORY INJUNCTIONS - Restraints of trade - whether restraint binding on defendant can be extended to a company controlled by defendant's family - whether company was acting as agent for defendant - balance of convenience in circumstances where there is a short time between granting of interlocutory relief and final hearing

EQUITY - fiduciary duty - plaintiff pleads contractual duties and parallel fiduciary duties - no vulnerability or reliance shown - no fiduciary duty claim maintainable - CONTRACT - implied term - oral agreement - discovering implied term - whether implied term breached - held breach - proceedings dismissed - no matter of principle

CORPORATIONS - winding up - liquidators - control of liquidators - court's statutory jurisdiction to inquire into liquidator's conduct - scope and effect of the court's power - purpose of the court's power - the process of inquiry - inquiry ordered in 2004 upon liquidator's removal by court - death of liquidator before inquiry undertaken - whether scope of inquiry should be extended - whether order for inquiry should be permanently stayed

CORPORATIONS – application for adjournment of winding up proceedings and extension of time under Corporations Act 2001 (Cth), s 459R – application for adjournment refused –where plaintiff seeks order to wind up defendant for non-compliance with statutory demand – statutory demand required payment of judgment debt – basis of adjournment is pending appeal from unsuccessful application to set aside judgment debt – no evidence justifying orders under s 459R – application to set aside statutory demand did not raise genuine dispute about judgment debt – no application for leave under s 459S to oppose winding up application on ground of genuine dispute about judgment debt – public interest in matter proceeding on fixed date

CORPORATIONS – application under Australian Securities and Investments Commission Act 2001 (Cth), s 93AA(4)(a) for declarations that defendants in breach of enforceable undertakings to refund moneys to investors in unregistered managed investment scheme – whether enforceable undertakings varied – no evidence of consent by ASIC to variation – whether undertakings breached – whether appropriate to make orders under s 93AA where breach found – assertions by directors of defendant companies that companies unable to comply with undertakings – no evidence as to financial position of companies – court not satisfied that orders under s 93AA would be futile

EMPLOYMENT – trainees – deemed workers compensation insurance for trainees – Workers Compensation Act 1987, s 158(3) – identity of employer of trainee under Australian Traineeship Scheme - CONTRACT – formation – oral – contract for performance of service for benefit of third party - CONTRACT – mistake – whether entitled to restitution for payment made under a mistake of fact - INSURANCE – deemed statutory insurer under Workers Compensation Act, s 158(3) – subrogation – whether statutory insurer entitled to be subrogated to such rights as the employer had to the recovery of moneys paid under a mistake of fact for breach of contract

CORPORATIONS - application to set aside statutory demand - company a guarantor of money owing by its subsidiary - limitation on guarantor's liability by reference to certain assets - statutory demand for whole of money owing - whether limitation provision meant that guarantor did not owe a debt due and payable for whole of money owing - whether creditor or company bore onus of proving that limitation provision was enlivened - whether affidavit annexing contract but not drawing attention to limitation provision in it satisfied s 459(3) of the Corporations Act 2001 (Cth).

Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether adjudicator's determination void for alleged failure of receipt of adjudication application - whether presumption of receipt of postal article - whether a denial of natural justice

PRACTICE AND PROCEDURE - proceedings - separate questions - where some issues might be more appropriately determined by an expert in accordance with agreement - whether part of proceedings should be stayed

CRIMINAL LAW - application for temporary stay - applicant and another person accused of murder and wounding with intent to murder - Crown case is that both offences committed by only one person - Crown case is that the two accused were not acting in concert - some evidence implicates only one of the two accused whilst other evidence implicates only the other accused - Crown elects to try the two accused separately - challenge to Crown's election to try the applicant first - whether election constitutes an abuse of process

SUCCESSION – WILLS – RECTIFICATION – no point of principle.

CRIMINAL LAW- appeal – appeal against sentence- failure to assess objective seriousness – consideration of aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act 1999 – appeal refused - CRIMINAL LAW- appeal – appeal against sentence – manifestly excessive - proper range of sentences – use of statistics – appeal refused

PROCEDURE - judgments and orders - stay pending appeal - no question of principle

SENTENCE - offences under the Listening Devices Act 1984 - sentencing discretion provided for in ss 10 and 10A of the Crimes (Sentencing Procedure) Act

CRIMINAL LAW – murder – accessory after the fact – sentencing – sentencing comments – sentence imposed

CROSS-EXAMINATION - judicial control - curtailing - imposing time limit - principles applicable

APPEAL – from Local Court – powers of arrest without warrant – rights to arrest for breach of the peace not affected by s 99 Law Enforcement (Powers and Responsibilities) Act 2002 – Magistrate’s credibility findings based on error of law considering powers of arrest – matter remitted to Local Court for hearing by another Magistrate.

CORPORATIONS – application by administrators of deed of company arrangement for directions in respect of giving effect to costs orders made against company – whether amount for which company liable under costs orders is “Administrators’ Disbursements” under deed of company arrangement – where claim not defended by deed administrators but by third party pursuant to leave under Corporations Act 2001 (Cth), s 237 with deed administrators’ consent – defending claim part of deed administrators’ duties in implementing deed – company’s liability to costs order arose from deed administrators’ decision as how claim should be defended – deed administrators’ lack of control over and involvement in litigation not relevant – costs incurred by company considered costs incurred by deed administrators – no basis for apportioning costs incurred before appointment of administrators - PRACTICE AND PROCEDURE – whether court has power to make lump sum costs order under Civil Procedure Act 2005 (NSW), s 98 after costs order already made – appropriate in circumstances to make lump sum costs order – costs not yet referred for assessment – court’s power to make lump sum costs order not spent – whether Civil Procedure Act precludes another judge from making lump sum costs order such that trial judge should make order

ABORIGINALS – NSW Aboriginal Land Council – election to office of councillor – whether a person disqualified from holding office is also disqualified from standing for election - APPEAL – civil – election of disqualified councillor – challenge to validity of election not limited by provision for disputed return – Aboriginal Land Rights Act 1983 (NSW), s 125 - ELECTIONS – election of disqualified councillor – challenge to validity of election not limited by provision for disputed return – Aboriginal Land Rights Act 1983 (NSW), s 125 - STATUTORY INTERPRETATION – casual vacancy – whether mechanism was available to resolve the ineffective election of a disqualified person – Aboriginal Land Rights Act 1983 (NSW), s 133 - STATUTORY INTERPRETATION – whether a provision for disqualification from holding office extended to disqualification from standing for election – Aboriginal Land Rights Act 1983 (NSW), s 132 - WORDS & PHRASES – “casual vacancy”

SUCCESSION – STATUTORY WILL – no point of principle.

PROCEDURE - application for vexatious proceedings order pursuant to s 8(7)(b) of the Vexatious Proceedings Act - meaning of vexatious proceedings - whether vexatious proceedings were instituted or conducted frequently - meaning of frequently

PRACTICE AND PROCEDURE - privilege - whether waived - whether maintenance of claim inconsistent with conduct of plaintiff

MAGISTRATES - Coroners - inquests and inquiries generally - whether interests of justice require a new inquest - whether Coroner's finding rested on unreliable expert evidence - whether Coroner failed to consider competing expert evidence - whether Coroner failed to consider whether expert opinions were persuasive, in the light of other relevant evidence - no reliable basis for Coroner's finding - whether new evidence showed a real possibility that the original finding as to cause of death was erroneous - effect of Coroner's finding - Occupational Health and Safety Act 2000 - public interest in the cause of death outweighs the public interest in the finality of coronial proceedings - new inquest ordered - costs - STATUTES - acts of parliament - operation and effect of statutes - construction of section 85 of the Coroners Act 2009 - wide discretion - competing public interest considerations - section requires satisfaction that there is a real possibility that original finding as to cause and manner of death was erroneous - section 85(e) - meaning of discovery of new evidence - evidence which might have made a material difference to finding reached

CRIMINAL LAW - application for prerogative relief - summary proceedings - failure of police to serve brief in time - magistrate's refusal to grant prosecution application for adjournment or dispensation with requirement of service in time - charge dismissed

PRACTICE AND PROCEDURE – application to strike out amended defence and cross-claim – where orders made for defence to be filed by certain date – where plaintiff contends that amended defence filed out of time and impermissibly raises new matters – where issues raised require joinder of additional parties – where both parties’ pleadings do not adequately raise issues in proceedings – no basis for striking out defence where raises genuine issues between parties – embarrassing pleadings and pleadings seeking to withdraw earlier admission or raise irrelevant issues struck out – defendant to provide further particulars and replead part of defence with further particularity – where plaintiff contends that cross-claim contains embarrassing, defective, vague and uncertain pleadings – no basis for striking out cross-claim

JUDICIAL REVIEW - Motor Accidents Authority - MAC Act

CRIMINAL LAW – car rebirthing – Crimes Act 1900, s 154G - CRIMINAL LAW – sentence – objective seriousness of offence – scale of objective seriousness – obligation to state where on the scale of objective seriousness an offence lies - CRIMINAL LAW – sentence – periodic detention – need for general deterrence - CRIMINAL LAW – sentence – manifestly inadequate sentence – whether an order for periodic detention fulfils purposes of punishment - CRIMINAL LAW – plea of guilty – Regina v Way [2004] NSWCCA 131 (2004) 60 NSWLR 168 – common law requirement to state reasons for departing from the standard non-parole period

CORPORATIONS – VOLUNTARY ADMINISTRATION – TRUSTS – corporate trustees’ assets insufficient to pay administrators’ fees and expenses – numerous trusts administered by corporate trustee – some trusts insolvent – whether administrators entitled to structure payments out of corporate assets to throw burden of recoupment of their fees and expenses only upon assets of solvent trusts.

CORPORATIONS – application under Corporations Act 2001 (Cth), s 444E for leave to proceed against defendant – where defendant subject to deed of company arrangement – whether plaintiff is person bound by deed of company arrangement – question of construction of deed of company arrangement – where separate proceedings on foot raise same issues as to construction of deed of company arrangement and include an application under s 447A to vary the operation of the deed – proceedings stood over until separate proceedings heard

PROPERTY RELATIONSHIPS - de facto relationships - adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - when de facto relationship commenced and ended - contributions made by parties and by mother of the Defendant - evaluation of any non-financial contributions - whether adjustive orders just and equitable in all circumstances

PRACTICE & PROCEDURE – Expert Code of Conduct – report prepared for plaintiff in 2001 prior to commencement of proceedings substantially reproduced in 2005 as an expert report for use in Court proceedings – where Code not complied with until later report prepared – where defendants object to tender of whole report on basis that expert compromised - whether later report admissible – report admitted

PRACTICE AND PROCEDURE - arbitration - contractual provision for arbitration under Commercial Arbitration Act - application for stay - whether arbitration would give rise to separate proceedings and inconsistent findings - whether second defendant not a party to arbitration agreement should be compelled to participate in arbitration under Commercial Arbitration Act - whether proceedings should be referred to arbitration under Civil Procedure Act - PARTICULARS - whether requested particulars relevant - whether proceedings instituted to find a case - whether statement of claim should be struck out or particulars ordered.

APPEAL – civil – interlocutory – construing pleading – whether primary judge erred in dismissing proceedings – whether plaintiff should have had limited leave to replead - PROCEDURE – civil – strike out application – leave to replead – determining immunity from liability as officer in charge of the prosecution and as a witness - PROCEDURE – civil – strike out application – leave to replead – determining whether limitation period had expired – Limitation Act 1969 (NSW) ss 50C, 50D - TORT – actions against State arising out of police misconduct – whether plaintiff's statement of claim raised any reasonable cause of action - Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 14.28(1)(a), 14.28(1)(b) - TORT – intentional tort – liability for failure of police to respond to complaint and notify complainant of date of hearing – liability for psychological injury

PRACTICE & PROCEDURE – Separate question – Whether determination of separate question would dispose of issues in the proceedings – No real saving of time or costs to the parties. - ADMINISTRATIVE LAW – Judicial review of Consumer, Trader and Tenancy Tribunal decision to transfer proceedings to District Court of NSW.

SUCCESSION - Family Provision and Maintenance - adult son - strained relationship with deceased - provision under will inadequate - moral claims of other beneficiaries considered - order for provision made.

ADMINISTRATIVE LAW - motor vehicle accident - damages - assessment by claims assessor - no jurisdictional error or error on face of record.

REAL PROPERTY – application pursuant to Real Property Act 1900, s 74K(2) to extend caveat – where plaintiff claimed equitable interest as beneficiary under constructive trust or as equitable chargee – where plaintiff alleged that parties had common intention for plaintiff to obtain half interest in property and plaintiff made monetary and non-monetary contributions, occupied property and made improvements in furtherance of common intention – where no allegation by plaintiff that plaintiff incurred costs of materials for improvements – where extent of plaintiff’s evidence on application was affidavit verifying statement of claim – where plaintiff relied only on caveat and statement of claim to establish claim – evidence deficient to establish serious question to be tried that caveat has substance – plaintiff’s claim of constructive trust or equitable charge unlikely to succeed even if facts alleged in statement of claim treated as evidence– balance of convenience favours defendant – real prospect that defendant would suffer loss if caveat extended – plaintiff unlikely on evidence to be able to satisfy undertaking as to damages

SUCCESSION - family provision and maintenance - application made by one of three children for provision from mother’s estate - small estate left to three children in equal shares - whether inadequate provision made for plaintiff - if so, what provision ought to be made - HELD - extension of time granted under s 16(3) of Family Provision Act 1982 for bringing action - provision inadequate - designation of property as notional estate - provision ordered for plaintiff - plaintiff should receive a legacy equal in amount to five-sixths of the net proceeds of sale of the property after there has been deducted from the sale proceeds the vendor’s costs and the amount of the costs of the Family Provision Act proceedings incurred by first defendant as executor on an indemnity basis - remaining one-sixth of the proceeds should be distributed to first defendant - any property acquired with notional estate should be charged with legacies for remaining beneficiaries - PRACTICE AND PROCEDURE - whether necessary for all executors to be party to proceedings - HELD - not necessary for all executors to be joined

On application for orders striking out a defence and for the dismissal of a cross-claim pleading reliance upon alleged misrepresentation, misleading and deceptive conduct, unconscionability at general law and relief under the Contracts Review Act (1980) in a case of a secured loan transaction it is necessary for the court in balancing relevant factors to take into account the nature of the proceedings brought in the Possession List, the nature and extent of the alleged default under the loan, the fact and extent of accumulating losses through unpaid principal and/or interest – fact of delay over a period of months since the defendants’ non-compliance with court directions, in particular, the direction to file evidence in support of the defence/ cross-claim and the need for Possession List proceedings to be dealt with speedily

STRATA SCHEMES MANAGEMENT ACT - validity of irrevocable power of attorney granted to lessee - lease required lot owners to vote in accordance with reasonable directions of lessee and granted lessee an irrevocable power of attorney - lessee under obligation to exercise power of attorney with good faith - HELD - power of attorney not void for illegality nor contrary to public policy - does not constitute an abandonment or abdication of voting rights inconsistent with the Strata Schemes Management Act 1996 - CONTRACTS REVIEW ACT - whether terms of lease unjust for purposes of the Contracts Review Act 1980 - HELD - s 7 of the Contracts Review Act not enlivened - distinction to be drawn between a contract which amounts to an abuse of rights or process and one which could if exercised in a particular way amount to an abuse of rights or process

CRIMINAL LAW - appeal against sentence - offences against the person - property offences - circumstances of aggravation - Form 1 offences - whether sentencing judge erred by failing to give proper effect to finding of special circumstances - risk of institutionalisation

NEGLIGENCE- breach of duty – appellant slipped on ramp at shopping centre – whether any error in primary Judge’s conclusion that breach of duty not established.