Cases and authorities

PROCEDURE – procedure under rules of court – motions – self-executing orders – failure to comply – UCPR 36.16 – application to set aside orders – history of disregard of and defiance of orders of Court – no basis for setting aside orders – motion dismissed

PRACTICE AND PROCEDURE – Application to reopen trial – Judgment reserved – Witness recalls additional evidence – Application allowed.

EQUITY - CONTRACT - PROMISSORY ESTOPPEL - alleged promises and representations made by father-in-law to plaintiff in relation to transfer of all of shares in company owned by father-in-law to plaintiff - before death of father-in-law two-thirds of shares were transferred to defendants - plaintiff claims that defendants held shares on constructive trust for plaintiff - principles requiring caution when relying on uncorroborated representations made by deceased person - HELD - plaintiff has failed to establish that a promise or representation was made that whole of company would be hers - no enforceable contract between father-in-law and plaintiff - defendants did not induce breach of contract - no express trust created in plaintiff’s favour - no promissory estoppel - CONSTRUCTIVE TRUSTS - consideration of nature of constructive trust and when it can be said to arise - UNDUE INFLUENCE - circumstances of relationship between father-in-law and defendants would have raised presumption of undue influence which was not rebutted on facts of case - relief not granted on basis of undue influence as no claim based on this ground was relied upon by plaintiff - undue influence was only relied upon to resist defence to claim for specific performance

CONTRACT – building contracts – construction – the defendant Principal and the plaintiff Contractor entered into a construction contract (“the Contract”) – later they entered into an Advance Payment Deed which amended the Contract and which inserted provisions for the making of Advance Payments to the Contractor and for the provision by the Contractor of Advance Payment Bonds to secure repayment – the Principal advanced or made Advance Payments and the Contractor provided two Advance Payment Bonds each in the form of an unconditional Bank Guarantee (“the Guarantees”) – the Advance Payments became repayable on provision of a Certificate of Practical Completion – the Principal was in addition the Superintendent under the Contract – it purported to vary the Contract by deletion of work and then issue a Certificate of Practical Completion and then sought to call on the Guarantees – the Contractor asserted that the variation was beyond power and the Certificate of Practical Completion was invalid – alternatively it asserted that the Certificate of Practical Completion was issued in breach of an obligation of the defendant to act fairly – the Contractor asserted that a call by the Principal on the Guarantees would be in breach of an implied negative stipulation in the Contract that it would not do so if the Advance Payment was not repayable – HELD – held that the Notice of Variation to Works was unauthorised and the Certificate of Practical Completion was ineffective – held further that the Superintendent did not act fairly in giving the Notice of Variation to Works and issuing the Certificate of Practical Completion – held further that the Principal breached its express contractual obligations – held further that a call on the Guarantees would be in breach of an implied negative stipulation as contended for

CRIMINAL LAW - sentence - murder - eighteen further counts involving detention, robbery and sexual assault - deceased died from injuries sustained while attempting to escape from offender - Form 1 offences - four victims - guilty plea - applicability of principles in R v Fernando in relation to Aboriginality of the offender - drug addiction - principle of totality

EJECTMENT — Consumer Credit Code ss 6(1), 6(5), 11(3), 11(4), 43(2), 80(3) — Contracts Review Act ss 7 and 9

ADMINISTRATIVE LAW - motor vehicle accident assessment of degree of WPI - diagnosis of chronic post traumatic stree disorder with co-morbid depression undisputed but severity of plaintiff's condition in issue - six areas of function to be assessed - consideration of tests to be applied in three areas of function for Moderate Impairment - consideration of guidelines for the assessment of the degree of permanent impairment of 1 October 2007 and Medical Assessment Guidelines issued under s 44(1)(d) of the Motor Accidents Compensation Act 1999 (NSW)

NEGLIGENCE – Duty of care – Occupiers liability – Duty to independent contractor – Plaintiff was an experienced roof painter – Allegation that occupier breached his duty of care by, inter alia, failing to inspect roof and to warn of danger – Whether occupier put on notice of potential danger – Breach of duty denied – No breach of duty found - CONTRIBUTORY NEGLIGENCE – Allegation that plaintiff failed to take proper care of own safety – Contributory negligence not found - DAMAGES – Assessment of damages for personal injury –Past and future economic loss – Gratuitous domestic assistance.

COSTS - TUTOR PROCEEDINGS - discretionary principles concerning when tutor ought bear costs - whilst tutor did not commence proceedings only for her own benefit it could not be said that she did not have an interest adverse to Mr Varma in proceedings and there was a potential conflict of interest - tutor did not improperly certify lack of adverse interest in proceedings without good faith where reasonably relying on advice from senior counsel - HELD - tutor to bear costs of proceedings from commencement of proceedings up to appointment of administrator ad litem on a party party basis - thereafter costs of administrator borne by estate and parties to bear their own costs

DEFAMATION - QUALIFIED PRIVILEGE - process to determine whether occasion of qualified privilege at common law - onus of proof in relation to malice - whether lack of honest belief in truth of matter complained of on its own establishes malice to defeat qualified privilege at common law

INSURANCE – construction of policy – indemnity insurance – insured’s activity of allowing licensed shooters on properties for the purpose of hunting only – legal liability to third parties for bodily injury and/or property damage in connection with activity – son accompanying licensed shooter on overnight hunting excursion injured by fire on insured’s property – coverage clause applied - INTERPRETATION – admissibility of extrinsic evidence in relation to instruments – proposal and policy wording of previous insurance policy – no evidence that insurers had knowledge of these documents – statement of insurance broker as to genesis of the policy in question – no evidence parties had knowledge of how policy was developed – knowledge of surrounding circumstances attributed to a reasonable person in the situation of the contracting parties is to be understood by reference to what the parties knew in the context of their mutual dealings

APPEAL – statutory appeal – District Court Act 1973, s 142N – party aggrieved by an award of the District Court in point of law - SUPERANNUATION – police superannuation – entitlement to additional amount of annual superannuation allowance – Police Regulation (Superannuation) Act 1906, s 10(1A)(b) – disabled member of the police force – benefits – no requirement to make application for payment and no time constraint prior to 30 June 2006 - STATUTES – interpretation – Police Regulation (Superannuation) Act 1906 – effect of s 10(1BA) inserted by the Superannuation Legislation Amendment Act 2006 – right accrued before the date of its operation – no contrary intention to affect accrued rights – construction in accordance with the Interpretation Act 1987, s 30(1)(c)

CONTEMPT - civil contempt - failure to comply with subpoena - applicant failed to prove respondent had documents in his possession or power - conduct engaged in by respondent not wilful. COSTS - whether costs should be awarded against a subpoenaed party - no factual basis for doing so in this case

EVIDENCE – voir dire – where plaintiff brought charges of contempt against defendant in respect of orders made under Corporations Act 2001 (Cth), s 1323 restraining the defendant from dealing with his assets – admissibility of evidence objected to under Evidence Act 1995, s 138 – where evidence obtained pursuant to notices issued by plaintiff purportedly under Australian Securities and Investments Commission Act 2001 (Cth), ss 19(2), 30, 33 or 37(9) – whether evidence improperly obtained pursuant to invalid notices – whether plaintiff had power to issue the notices to investigate contempt charges – whether plaintiff lawfully exercised its power to issue notices – scope of ASIC’s investigative powers – whether notice issued under s 19 invalid for failing to set out effect of s 68 – legislative requirements as to the form of notices under ss 30 and 33 – whether non-compliance with legislative requirements renders notices invalid – purpose of requiring notices to state the matter to which the request for production of documents relates – whether notices valid where issued for stated purpose even if also issued for unstated purpose – whether notices valid where did not truly state the matters to which the request for production of documents related – weighing up of desirability of admitting evidence against undesirability of admitting evidence obtained pursuant to invalid notices

CORPORATIONS – DEED OF COMPANY ARRANGEMENT – “CREDITOR” – Whether person having unadjudicated claim under s 106 Industrial Relations Act is a “creditor” bound by a DOCA – whether Court has power under s 447A(1) Corporations Act to vary operation of Pt 5.3A to allow admission of such claim.

CRIMINAL LAW – sentence – money laundering offence charged additionally to principal offence – no additional criminality – sentence should be concurrent not cumulative - CRIMINAL LAW – sentence – money laundering offence charged additionally to principal offence – no additional criminality – inappropriateness of more than one charge

CRIMINAL LAW - sentence - pleas of guilty - indecent assault by 39-year old male on 14-year old girl - offence involved kissing on lips and cuddling - three offences of commit act of indecency towards victim - offender sent images of his erect penis to victim by multimedia text message via mobile telephone - offender had honest but unreasonable belief that victim was over 16 years - victim with limited intellectual capacity - offender with limited cognitive capacity and limited social skills - relevance of standard non-parole period for indecent assault offence - failure by sentencing Judge to engage in assessment of objective seriousness concerning all offences - error established - lesser sentences warranted in law after proper assessment of objective seriousness of offences and subjective circumstances of offender - appeal allowed

SOLICITORS – LIEN – application for production of file – where solicitors retained on “No Win – No Charge” basis – construction of retainer – whether solicitors entitled to demand payment of costs in 7 days if of the view that client will not do better than offer of compromise – whether client or solicitors terminated retainer – whether client “owes” solicitors any fees at time of application - dangers of “No Win – No Charge” retainer

PRACTICE AND PROCEDURE - Application for judgment on the basis of admissions made by the other party - distinction between debt and contract

PROCEDURE - Supreme Court procedure - New South Wales - procedure under Uniform Civil Procedure Rules and other rules of court - miscellaneous proceedings and matters - where proceedings earlier settled in principle, but now dispute as to terms of settlement agreement - whether defendant entitled to indemnity costs where defendant made settlement offer by letter to plaintiff - whether costs recoverable by defendant should be limited

Practice and Procedure - Late changes in status approach to experts retained - Critical necessity for applications for extensive additional discovery to be made prior to commencement of final hearing - Courts acceptance that as the final hearing approaches all parties will be working apace to prepare their cases

COSTS - costs of a motion where parties came to a compromise over subject matter of motion - whether filing of motion was reasonable. CONFIDENTIALITY - applications where a party seeks to gain greater protection than the implied undertaking as to confidentiality - whether party has to demonstrate that each document is worthy of greater protection

CORPORATIONS - meetings of members - meeting called by a member under Corporations Act 2001 (Cth), s 249F - proposed resolution to appoint two persons as directors - whether a "proper purpose" - where proposed appointees are ex-wife and accountant of disqualified former director - whether they will act in the interests of the company - whether they will be puppets of ex-director - CORPORATIONS - declaratory relief as to efficacy of action to appoint directors - whether plaintiff has "clean hands" - CORPORATIONS - constitution - provision for rotation of directors at each "ordinary general meeting" - whether meeting called by member under s 249F is an "ordinary general meeting" - effect of automatic re-appointment provision - ASIC records prima facie evidence of directorship - CORPORATIONS - meeting of directors - one director calls meeting - that director gives explicit notice of purpose of meeting - meeting purports to resolve to authorise that director to act as representative of company in all aspects of certain matter - no such proposed authorisation included in statement of meeting's purpose - whether resolution valid

CRIMINAL LAW - appeal against sentence - maliciously inflicting grievous bodily harm - whether sentencing judge failed to take into account various mitigating factors - whether sentencing judge contravened principles established in The Queen v De Simoni (1981) 147 CLR 383 - whether trial counsel incompetent

TORTS – the law of torts generally – joint or several tortfeasors – contribution – general – effect of settlement against one tortfeasor – legislation preventing double recovery – purpose and effect of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – undercompensation irrelevant for purposes of operation of s5(1)(b) – TORTS – the law of torts generally – general principles – meaning of “damages awarded” in s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946– “damages awarded” extends only to circumstances where the court has assessed the quantum of those damages in the context of s5(1)(b) – TORTS – negligence – apportionment of responsibility and damages – principles and mode of apportionment – DAMAGES – measure and remoteness of damages in actions for tort – measure of damages – legislation limiting amount of damages available – effect of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – PROCEDURE – judgments and orders – effect of judgments – whether “damages awarded” extends to include judgments giving effect to settlement amongst parties for the purposes of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – meaning of “damage” – WORDS AND PHRASES – “damage” – “damages awarded”

NEGLIGENCE - liability of builder/occupier to employee of sub-contractor - employee to perform brick cleaning work - fell through hole of gap in the scaffolding which had not been present when inspected three days before - sub-contractor was plaintiff's wife - unsophisticated sub-contracting entity - previous contracts with the defendant - defendant knew plaintiff's wife not experienced in safety aspects of bricklaying work - plaintiff's attendance at site on a Saturday when no other employees present was a practice followed with brick cleaning - whether specific notice given by sub-contractor of plaintiff's intention to attend site - application of s.151Z Workers Compensation Act - defendant 90% - plaintiff contributory negligence 15%

CORPORATIONS - examinations by liquidators and others - applications for examinations (or part thereof) to be in private - need for special circumstances to be shown - no special circumstances warrant whole being in private - special circumstances warrant part being in private - relevant part is any part involving disclosure content of documents obtained by Australian Securities and Investments Commission from Securities and Futures Commission of Hong Kong under inter-agency confidentiality regime

PROBATE – Rectification of will – whether the rectification sought will make testator’s intention clearer.

TORTS - malicious prosecution - whether police officers maintained the prosecution of the respondent - whether the officers took active steps to support the prosecution - TORTS - malicious prosecution - whether State of New South Wales vicariously liable by reason of the Law Reform (Vicarious Liability) Act 1983 - whether the torts found by the primary judge were ones "arising out of a wrongful act or omission" occurring prior to the date appointed and notified under s 2(2) of that Act - TORTS - malicious prosecution - award of exemplary damages

COSTS - indemnity costs - Calderbank offer to compromise appeal - offer rejected by unsuccessful appellant - whether rejection of offer unreasonable - whether an entitlement to some costs on an indemnity basis because certain grounds of appeal had no prospects of success - whether discretion to award indemnity costs should be exercised.

FAMILY LAW AND CHILD WELFARE - de facto relations - adjustment of property interests - evaluation of contributions - balancing of financial and non-financial contributions by the parties - treatment of superannuation by the Trial Judge - sufficiency of reasons.

Application by serious sex offender - released on extended supervision orders - committed offences and returned to custody - application by State to detain for further therapy - issues - argument by parties to further continuing detention order - construction of s 17 of the Act.

CONTRACTS – construction and interpretation of lease – whether lessees liable for damage caused to premises - TORTS – negligence - whether lessees owed the plaintiffs a duty of care – whether damage caused to premises in breach of duty – use of premises within the permitted use specified in lease does not give rise to liability in negligence - CONTRACTS – claim for unpaid rent – no submissions directed to claim – evidence limited – plaintiffs given further opportunity to establish claim on evidence already adduced

INSURANCE - Professional indemnity policy taken out by valuer - letter to valuer asserting possibility of substantial shortfall on sale of property - definition of "claim" in insurance policy - whether contents of letter constituted "claim" for purposes of insurance policy - letter did constitute a claim under policy.

CORPORATIONS - winding up - pending application for winding up in insolvency - administrators appointed - whether winding up application should be adjourned - where deed of company arrangement proposed which is highly discriminatory - adjournment refused - winding up order made

CRIMINAL LAW - sentence - murder - whether causal link between offender's brain damage and offending - level of objective seriousness - significance of previous criminal record

COSTS - application to have costs assessment dealt with out of time - consideration of reasons for delay - where earlier agreement as to payment of costs abandoned - application granted

DEFAMATION - adequacy of particulars of defence - no matter of principle

NEGLIGENCE – medical negligence – spinal surgery – risks of surgery – failure to warn – where plaintiff suffered bilateral femoral neurapraxia following posterior lumbar interbody fusion – where no warning given of that risk despite general warning in standard terms – whether breach of duty to warn – whether plaintiff suffered harm in the circumstances - whether plaintiff would have declined surgery if warned of the risk of harm that materialised – whether harm caused by failure to warn – where plaintiff would not have declined surgery in any event - bilateral femoral neurapraxia not caused by defendant's breach of duty.

CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender - depressive illness - nature and circumstances of offence - whether intention to kill

PROCEDURE – application for adjournment – defendant unrepresented – no reasonable prospect that defendant might secure legal assistance – matter to proceed in the interests of justice – application for adjournment refused, Notice of Motion dismissed - DEFAMATION – defence – s 23 Defamation Act 2005 – s 23 does not preclude the filing or the reliance upon the second Statement of Claim where publications, imputations complained of and second Statement of Claim different. - DEFAMATION – statements amounting to defamation – particular statements – whether imputations conveyed – whether imputations defamatory of plaintiff - DEFAMATION – damages – compensatory damages – aggravated damages – factors to be considered include “motive and conduct” of the defendant and period and extent of publication – interest and costs - DEFAMATION – injunction – interim injunction made permanent

TORTS - negligence - intoxicated patron of hotel - hotel being renovated - duty of care of hotel and builder - dangerous premises - fall from roof - causation - contributory negligence - DAMAGES - multiple injuries - comparison with a worst case - loss of earning capacity.

CRIMINAL LAW - appeal against sentence - grounds for interference - child pornography - using carriage service in offensive manner and to groom person under 16 for sex - error as to maximum penalty - whether error as to treatment of offender's mental condition - whether moral culpability reduced - whether sentence manifestly excessive

CRIMINAL LAW – particular offences – offences against the person – sexual offences – indecent assault – sexual intercourse without consent - CRIMINAL LAW – appeal against conviction for sexual intercourse without consent – whether error in giving direction to jury on recklessness as to consent – direction on recklessness required where consent in issue – no error in giving direction where consent not in issue – cross-examination capable of suggesting consent – failure to give adequate direction in accordance with R v Murray – no particular form of words necessary, adequate directions given – appeal against conviction dismissed - CRIMINAL LAW – appeal against sentence for sexual intercourse without consent – sentence not manifestly excessive – standard non-parole period – offence below mid-range of objective gravity – sentence imposed not outside range available to sentencing Judge – leave to appeal against sentence granted, appeal dismissed

COSTS - Defendant's Motion to vary the terms of an interlocutory order - Defendant largely unsuccessful on the Motion - whether costs should be costs in the cause - discrete interlocutory issue - Defendant to pay 75% of the Plaintiff's costs.

CORPORATIONS – LIQUIDATION – ADMINISTRATION – Whether liquidation should be terminated and DOCA given effect – DOCA part of a dishonest scheme by Mr James Byrnes to take assets which should be available for creditors – termination of liquidation contrary to public interest and commercial morality.

Family Provision. Application by stepson given modest legacy. Legacy increased. No matter of principle.