Cases and authorities

PRACTICE & PROCEDURE - application by plaintiffs to revisit costs order made following their unsuccessful challenge to retainer of defendants' solicitor – where plaintiffs contend costs order based on misapprehended facts – where original challenge to the retainer was made on assumption that defendants' solicitor had been given confidential information – where assumption false and challenge ill considered – costs order appropriate - application dismissed.

APPEAL – civil – whether provision "ought" be made from the deceased's estate for "maintenance, education or advancement in life" for adult, able-bodied children – Family Provision Act 1982 (NSW) ss 7, 9 - APPEAL – civil – whether there is a moral or natural obligation to provide for adult, able-bodied children, sufficient to deprive parent of the unfetted right of testamentary disposition – ss 7, 9 - STATUTORY INTERPRETATION – principles – appellate review principles apply in relation to the test of adequacy of provision - WORDS AND PHRASES – "proper", "adequate" – Family Provision Act 1982 (NSW), s 9

PRIVATE INTERNATIONAL LAW - stay of proceedings - exclusive jurisdiction clauses - failure of plaintiff to identify strong reasons against a stay of proceedings - whether considerations applicable to staying proceedings on a forum non conveniens basis also applicable to exclusive jurisdiction clauses - CONTRACTS - construction and interpretation of contracts - scope of exclusive jurisdiction clauses - whether non-parties entitled to stay proceedings instituted in breach of an exclusive jurisdiction clause - CORPORATIONS - winding up - application for leave to proceed against a company in liquidation - financial capacity of a company to conduct litigation

TORTS - negligence - contributory negligence - motor vehicle collision - whether judge imposed a higher standard of care than that of a reasonable person in position of appellant - no error shown - otherwise no error as to finding of contributory negligence or reduction of damages - APPEAL - civil - failure to give reasons - appellant not accepted as to extent of injury and consequences - no finding as to true extent and consequences - but damages awarded under various heads - bases for awards not ascertainable without findings - awards inconsistent - reasons inadequate - new trial as to damages

REAL PROPERTY – application pursuant to Real Property Act 1900, s 74MA for withdrawal of caveat and for order to restrain defendant from lodging further caveats – plaintiff and defendant entered into deed of guarantee and indemnity pursuant to which plaintiff charged interest in land in favour of defendant and agreed to execute additional security on request by defendant – defendant lodged caveats claiming interest as equitable mortgagee pursuant to unregistered second mortgage – removal of caveats sought to enable sale of properties to proceed – evidence that properties to be sold below current market value to plaintiff’s acquaintances - REAL PROPERTY – whether defendant had caveatable interest – whether caveat sufficiently described caveatable interest – whether caveat has no proper purpose and maintained to put illegitimate pressure on plaintiff – whether caveat should be removed because first mortgagee will receive entire proceeds of sale of property – whether defendant has legitimate interest in refusing to remove caveat –removal of caveat with no alternative security would prejudice defendant by creating risk of loss of priority and receipt of less proceeds from realisation of property

CRIMINAL LAW - sentencing - offender convicted of murder - offence committed in 1991 - need to consider sentencing patterns and practices at that time

CRIMINAL LAW - procedure - confiscation of proceeds of crime - restraining or freezing orders - ancillary order for attendance by third party for examination - Notice of Motion seeking examination not served on third party - whether obligation to serve - whether examination order should be set aside for failure to serve - standing of third party to apply for discharge of examination order - related criminal charges against both Defendant and third party - whether examination should be stayed.

FAMILY PROVISION - competing needs of plaintiff and defendant - plaintiff proposed life estate for defendant with remainder to plaintiff - needs of defendant required an order that she be entitled to entire estate. COSTS - family provision - plaintiff's case failed because of size of estate and competing needs - plaintiff tried to accommodate these needs in proposed orders - no order as to costs

Construction of document - Mediation resulting in Heads of Agreement - Meaning and effect of clauses in document - Whether settlement of dispute between parties effected in light of events that transpired

PROCEDURE - judgments and orders - default judgments - setting aside - failure to show any defence on the merits - failure to explain delay in filing a defence to the Statement of Claim for more than 5 months - failure to explain delay in filing Notice of Motion to ser aside judgment for more than 7 months - application dismissed.

JUDGMENTS – foreign judgments – registration of – contested application – requirements to be satisfied – requirement to show that if judgment registered the registration would not be liable to be set aside under s 7 Foreign Judgments Act 1991 (Cth) – whether those matters need to be determined on application for registration – appropriate order to be sought.

Costs - Application to have costs assessment dealt with out of time - Consideration of delay and reasons for it - Whether just and fair that application be dealt with

CRIMINAL LAW - SENTENCE - statement tendered as agreed facts - applicant not in fact given opportunity to read statement before being asked to sign it - statement containing allegations as to inferences to be drawn from objective material - sentencing process miscarried.

Appeal- Civil- no appeal as of right- area of land concerned worth under $10,000- leave to appeal given. Conveyancing- Conveyancing Act 1919, s 195H- whether appellant entitled to order requiring Registrar General to "correct error" by omitting strip from plan- whether the registered plan failed to implement the intentions of the parties who prepared and lodged the plan- where disputed strip not expressly referred to in council consent to subdivision but subsequently included in registered plan of subdivision. Real Property- Torrens title- possessory title- Real Property Act 1900, Part 6A- strip of land adjoining neighbouring properties- appellant previously entitled to make application for possessory title by reason of adverse possession for 50 years- whether possessory claim destroyed by registration of plan of subdivision consolidating contested strip into larger lot- whether the Limitation Act 1969, ss 27 and 65 apply to Torrens system land to extinguish the title of the registered proprietor and prevent the registered proprietor from obtaining ejectment against the adverse proprietor- whether appellant had personal equity against respondent in respect of disputed strip arising from possession. Words and Phrases- "error" or "omission".

Family Provision. Claim by a de facto partner of 7 years standing for all of a $700,000 estate. Held sufficient provision made in will which provided one third of estate should pass to plaintiff.

COMMERCIAL ARBITRATION - application under s 38(4)(b) of Commercial Arbitration Act 1984 (NSW) for leave to appeal from Arbitrator’s award on grounds of manifest error of law or strong evidence of error or in the alternative to remit questions of law to Arbitrator under article 34(2)(b)(ii) of Model Law - if former, whether leave to appeal should be granted under Commercial Arbitration Act - if latter whether denial of natural justice under the Model Law - HELD - Model Law applies - referral of dispute under rules of ICC did not operate as an ‘opt-out’ of Model Law under s 21 of the International Arbitration Act 1974 (Cth) – the decision in Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v Australian Granites Ltd [2001] 1 Qd R 461 is plainly wrong and should not be followed - referral of dispute to ICC Rules did not indicate that parties intended to opt-out of Model Law to extent it applied as the curial law or lex arbitri - had Commercial Arbitration Act applied, threshold requirements for grant of leave not satisfied - discretion to grant leave would not have been exercised in any event - no denial of natural justice - plaintiff’s application dismissed - ADMIRALTY AND MARITIME JURISDICTION - whether dispute was one arising out of a maritime claim - HELD - dispute did arise out of a maritime claim so that exclusion agreement by adoption of article 28(6) of the ICC Rules would not apply

Family Provision. Claims by two step-children and de facto partner. Majority of the estate passed to natural daughter of deceased who did not know her father until she was 13 years of age. - Orders making minor provision for plaintiffs.

TRADE PRACTICES - misleading and deceptive conduct - "Phone Doctor" and "Phone Hospital". TRADEMARKS - whether unregistered mark used by the defendant infringes plaintiff's. RESTRAINT OF TRADE - franchise - during and after termination of agreement. CONFIDENTIAL INFORMATION - contractual obligations of confidence. CONTRACTS - whether contract terminated - effect of termination on obligations of parties. INJUNCTIONS - balance of convenience

TRADE PRACTICES - misleading and deceptive conduct - where no evidence that the representees acted to their detriment in, or suffered any loss or damage as a result of their, reliance upon alleged representations - LEGAL PRACTITIONERS - obligations to the Court when representing a party opposed to unrepresented litigant - Civil Procedure Act 2005, s 56 - duty to assist the Court to understand and give full and fair consideration to the submissions of the unrepresented litigant

PROCEDURE - COSTS - Orders for costs made against a legally assisted person - whether the exclusion from liability for costs in the Legal Aid commission Act 1979, s 47(1) is limited to orders for costs and does not affect any covenant in a security or entitlement under the Uniform Civil Procedure Rules 2005, Pt 42, r 42.25 - whether plaintiff an equitable mortgagee - whether issue estoppel prevents a claim under the law - whether it applies to an equitable chargee - whether judgment at first instance made a charging order under the Civil Procedure Act 2005, s 126

PRACTICE AND PROCEDURE - application for medical examination of plaintiff - claim for damages against hospital and paediatrician - alleged negligence in failing to diagnose and treat hypoglycaemia and hyperinsulinism in infant - claim that negligent failure resulted in disabilities including developmental delay and verbal expressive disorder - paediatrician seeks order that plaintiff undergo genetic testing to determine whether developmental delay and verbal expressive disorder had a genetic cause and were not the result of delayed diagnosis - applicable principles on interlocutory application for medical examination - test of adjectival relevance - history of proceedings - delay in application - relevant discretionary factors - order for medical examination made

Professional negligence - accountants - application for summary dismissal - statute of limitations - admissions - triable issues - application dismissed.

CRIMINAL LAW - whether District Court judge erred in concluding there was a lack of evidence in support of a legitimate forensic purpose by the applicant in the form of a subpoena seeking production and access - failure by applicant to place material evidence before the court in establishing it was on the cards that the documents sought would assist the applicant's case

CRIMINAL LAW - leave to appeal against conviction - absence of satisfactory explanation for delay and lack of merit in the appeal - CRIMINAL LAW - leave to appeal against sentence - application lacking in merit

CRIMINAL LAW – offences against the person – sexual offences – aggravated indecent assault - victim under age of 16 years - CRIMINAL LAW – appeal against conviction - EVIDENCE – whether trial judge erred by failing adequately to distinguish between tendency and context evidence – whether trial judge permitted tendency evidence led before the Jury otherwise than in accordance with s 97 and s 101 of the Evidence Act 1995 (NSW) – evidence admitted to establish context and not for tendency purposes – appropriate directions given

PROCEDURE – Stay – Appeal rendered nugatory if stay not granted – Exceptional circumstances – Stay refused.

Appeal- Civil- whether leave to appeal required- District Court Act 1973, s 127(2)(c)- whether appeal involves $100,000 or more- realistic prospect of success. Contract- Formation of Contract- variation- relevance of subsequent conduct to formation of contract- agreement between parties to share in costs of litigation- initial discussion that appellants bound to pay 12% of the total costs- whether subsequent communications referring to 1/12th rate varied original agreement- whether subsequent conduct further varied any variation back to 12%- relevance of failure of appellant to give oral evidence regarding further variation- whether primary judge erred in holding respondents had overpaid based on binding 1/12 agreement- whether finding as to original agreement glaringly improbable- implied terms- whether implied term obvious, or necessary for the reasonable or effective operation of the contract- whether implied term that agreement net of GST. Procedure- Civil- whether account stated pleaded- whether case run at trial so as to require its consideration.

PROCEDURE - civil - written submissions on appeal - whether compliant with Uniform Civil Procedure Rules r 51.36 - to comply with r 51.36(2), "statement in narrative form" to be separately identifiable

PROCEDURE – Stay – Notice of Motion seeking variation of order – Whether it should be adjourned or dismissed.

Family Provision. Application by son who was left a small legacy. Consideration of relationship between parties and other beneficiaries. - Provision increased.

COSTS – purchaser/vendor dispute – where second defendant issued bond to guarantee deposit payable under contract for sale – where plaintiffs and first defendant rejected second defendant’s proposal to withdraw from proceedings – whether to award costs on indemnity basis against plaintiffs for additional costs incurred by second defendant – whether to order different costs order against first defendant where successful party

CRIMINAL LAW - appeal against sentence - aid and abet drive manner dangerous occasioning death - aid and abet drive manner dangerous occasioning grievous bodily harm - guilty pleas entered - whether sentencing judge erred by failing to give effect to finding of special circumstances - whether sentencing judge erred in assessment of aggravating features of offences - whether sentences manifestly excessive - significance of applicant’s intellectual disabilities in calculation of sentence

CRIMINAL LAW - appeal against sentence - aggravated dangerous driving causing death - escaping pursuit by a police officer - consideration of motor/manslaughter sentences - whether sentence manifestly excessive

CRIMINAL LAW - sentencing - whether sentences manifestly excessive - whether adequate regard to health problems - whether finding of special circumstances reflected in total effective sentence - whether compensation should have been ordered - offences committed whilst on parole and as an escapee

CRIMINAL LAW - appeal against sentence - two charges with overlapping elements - sentences concurrent - whether double punishment - whether aggravation because of planning - whether sufficient weight given to mental illness and subjective case - whether sentence manifestly excessive.

CRIMINAL LAW - sentence - robbery in company - error as to commencement date of sentence - sentence backdated - no lesser sentence warranted in law.

ENVIRONMENT AND PLANNING – development control – consent – whether Council acted ultra vires in purporting to grant development consent – whether development had capital investment value exceeding $10 million – whether tenancy fit-out costs included in determination of capital investment value

STATUTORY INTERPRETATION – principles – definitions – whether the agreement was a franchise agreement for the purposes of the Trade Practices Act 1974 (Cth) and the Franchising Code of Conduct made under that Act – whether cost of stationary at the full retail cost - payment to the franchisor of one-third of the sale price of business transferred by the franchisee - or payment to the franchisor of a fee, is indicative of a franchise agreement - TRADE PRACTICES – Franchising Code of Conduct – failure to serve disclosure document and notice of default – whether loss caused - TRADE PRACTICES – Franchising Code of Conduct – whether franchisor repudiated contract – whether appellant abandoned business - WORDS AND PHRASES – "franchise agreement"

APPEAL – civil – credibility – whether failure to pay proper regard to respondent’s unreliability as witness - APPEAL – civil – evidence – whether evidence supports conclusion – whether failure to assess or address evidence – sufficiency of evidence - APPEAL – civil – retrial – severance of issues – whether damages should be subject of new trial - EVIDENCE – proof – standard of proof – civil – application of Briginshaw principle - EVIDENCE – witnesses – unexplained failure to call witnesses – inferences - TORTS – intentional – malicious prosecution – whether charges brought and prosecuted in absence of reasonable and probable cause and with actual malice – whether informant aware that knife was planted by police officer - TORTS – intentional – trespass to person – assault – whether police officer struck respondent on face with baton

EQUITY - Equitable remedies - orders for judicial sale out of court - discretionary factors considered.

PROCEDURE - costs - departing from the general rule - conduct of parties - no indemnity costs order in favour of plaintiff - no misconduct by first defendant - circumstances require that each party bear its own costs of the motion

CRIMINAL LAW - sentence - manslaughter of child by stepfather - plea of guilty accepted in discharge of indictment for murder - offender with difficult background, personality disorder - on parole for previous manslaughter

PROCEDURE - costs - whether unsuccessful plaintiff should be ordered to pay costs on the indemnity basis - whether costs order already made and beyond court's power to vary - held not - defendants seek to rely on offer of compromise - plaintiff says disclosure of offer is breach of contract warranting exclusion under Evidence Act, s 135(a) - held no breach of contract - plaintiff says such disclosure precluded by Civil Procedure Act, s 30(4) - held not as section applies only to court ordered mediation - plaintiff says non-acceptance of offer not unreasonable where defendants' evidence not served when offer made - but plaintiff actively rejected offer and made counter-offer despite absence of defendants' evidence - non-acceptance of defendants' offer by plaintiff unreasonable - indemnity costs ordered

FAMILY PROVISION - whether adequate provision made by deceased - plaintiff, deceased and defendant emigrated from Poland to Australia - defendant primary carer for deceased - defendant had little assets and employment prospects - plaintiff had poor relationship with deceased - plaintiff had adequate assets

DAMAGES – assessment of damages for personal injury – past and future domestic assistance – gratuitous attendant care services – loss of capacity to provide domestic assistance and care

SUBPOENA - cross examination as to credit - setting aside - principles applicable - FIDUCIARY DUTY - commercial relationship - competing considerations

COSTS – Offer of compromise – Calderbank letter – Not unreasonable to refuse offer – Offer of compromise under UCPR, r 20.26 – Offer not accepted - Whether any basis for Court to “otherwise order” – Whether exceptional circumstances established by offeree – Order for indemnity costs assessed from date of the offer of compromise under UCPR, r 20.26.

CONTRACTS – joint venture agreement to develop land – whether agreement abandoned – whether agreement subsequently revived or whether a new joint venture agreement established – whether any subsequent arrangement mutually abandoned – no question of principle – turns on facts RESTITUTION – whether claim for remuneration quantum meruit for services provided in preparation and lodgment of development application established – no question of principle – turns on facts

Appeal from General Division of Local Court - appeal point not taken in court below - whether defendant would have conducted case differently - whether court should exercise discretion to allow point to be taken on appeal - SALE OF GOODS - section 54 Sale of Goods Act 1923 (NSW) - whether section 54(1) remedies are alternatives - consequences of diminution of purchase price not being raised in defence - APPEAL - whether Magistrate provided adequate reasons for decision - findings as to credit - advantageous position of trial judge.

PROCEDURE - discovery and interrogatories - discovery and inspection of documents - orders for further discovery refused - leave to rely on further lay and expert evidence - leave granted in part - leave under section 168 of Evidence Act 1995 refused - orders under section 169 of Evidence Act 1995 refused