Cases and authorities

CRIMINAL LAW - sentencing - murder - joint enterprise - whether intention to kill or to inflict grievious bodily harm - whether racially motivated - whether part of planned criminal activity - parity - consideration of offender's role - consideration of mitigating factors - whether sentence should be less than that of co-offender - whether special circumstances

COSTS - indemnity costs - offer to compromise appeal on terms: (1) new trial and (2) each party to pay own costs of appeal - offer rejected - whether offer a true compromise - on facts, a true compromise - whether offer invalid under the rules as not exclusive of costs (r 20.26(2)) - offer not exclusive of costs and invalid under UCPR - consideration of rationale of r 20.26(2) - whether offer operated as Calderbank offer - intention must be manifested - intention not shown - whether first respondent entitled to ignore offer due to contractual indemnity from second respondent - entitlement to indemnity not yet established and irrelevant to costs order as between appellant and first respondent - whether second respondent unable to accept offer because Court's finding under r 51.53 required - consent to new trial admits substantial wrong or miscarriage - able to accept offer - whether general discretion enlivened because respondents' positions untenable - positions not untenable.

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - 7 week old baby by 18 year old mother - post natal depression - isolation - victim of domestic violence - plea of guilty - assistance to authorities

STRATA TITLES – whether agreement is a “caretaker agreement” – power to make by-laws – validity of by-laws – by-laws and necessary degree of connection. - CONTRACTS – illegal and void contracts – whether grant of rights was illegal because party did not hold licence as required by statute – whether contract void or unenforceable because of illegality – impermissible delegation of the owners corporation’s functions. - PRACTICE AND PROCEDURE – discretionary grounds for granting declaratory relief – Court’s obligation to deal with issues before it in light of s 56 of the Civil Procedure Act 2005 (NSW).

Contract – Unjust contracts - Proceedings constitute residue of test case having travelled through a decision at first instance (Agricultural and Rural Finance Pty Ltd v Atkinson and others) [2006] NSWSC 202, a decision before the New South Wales Court of Appeal (sub nom Gardiner v Agricultural and Rural Finance Pty Ltd) [2007] NSWCA 235 and the decision of the High Court of Australia (sub nom Agricultural and Rural Finance v Gardiner) (2008) 238 CLR 570 - Remaining issues concern defendants’ Contracts Review Act and punctuality cases - Whether Act applies - Whether defendants entered into contracts in the course of or for the purpose of a trade, business or profession within the meaning of s 6(2) - Proper scope of that exclusion - Whether it covers investment contracts entered into as a matter of personal finance - Whether the farming exception contained in s 6(2) applies to the first defendant - Proper scope of that exception - Ellison v Vukicevic (1986) 7 NSWLR 104 at 111 applied - Relevant steps involved in applying s 7(1) of the Act - Framework for determining whether a contract is unjust within the meaning of s 7(1) - Point at which it is determined whether a contract is unjust - Whether the Court focuses on the particular contract or the overall transaction - Principles concerning meaning of ‘unjust’ under the Act - Factors contained in s 9(2) are not exhaustive - Whether, if it is established that provisions of one contract are unjust, it is possible to obtain relief in respect of a related contract - Public interest consideration under s 9(1) - Baltic Shipping Company v Dillon “Mikhail Lermontov” (1991) 22 NSWLR 1 applied - Provisions in question were not subject of negotiation, whether negotiation was reasonably practicable - Purpose of s 9(2)(b), 9(2)(c) - Whether provisions in question were particularly complex - Whether provisions in question reasonably necessary for protection of legitimate interests of second cross defendant, the indemnifier - Whether loss of indemnity was a grossly disproportionate consequence in the event of late payment of interest and principal payments - Contracts Review Act 1980 ss 4, 6, 7, 9,15, 16, Sch 1 - Onus of proof - Whether issue was decided in Gardiner Test Case – Defendants bear onus of proving punctual performance - Evidence - Probative value of evidence substantially outweighed by danger that evidence would if allowed by unfairly prejudicial to the plaintiff and/or be misleading or confusing and/or cause or result in undue waste of time - Evidence Act 1995 s 69(2)

AMENDMENT - discretion - leave to file third amended defence - defendants self represented - plaintiff well resourced commercial litigant - pleading policy and principle - exacting standards of precision not required

EQUITY – General Principles – undue influence and duress – other presumptions of undue influence – whether there was a special relationship of influence between the parties – whether presumption arose having regard to quantum and context of gift – whether presumption rebutted – EQUITY – General Principles – assignments in equity – whether donor’s intention perfected

CRIMINAL LAW - appeal against sentence - plea of guilty to two counts of supplying a prohibited drug (MDMA) - whether Judge failed to find that the applicant's subjective circumstances were sufficiently exceptional to justify a sentence other than full-time custody - whether sentence manifestly excessive.

CRIMINAL LAW AND PROCEDURE - Sentence - Indictment for causing grievous bodily harm with intent - Plea of guilty to recklessly causing grievous bodily harm accepted in satisfaction of indictment - Standard non parole period - What is required to express scale of seriousness of offence - No obligation to articulate hypothetical abstract offence - In circumstance that conviction for particular offence followed offender's plea in the District Court no relevance in fact that offence against the provision may be charged and dealt with in Local Court - Victim loses sight of eye - Considerable lenience in imposition - Intervention not called for

PROPERTY RELATIONSHIPS - When de facto relationship commenced - contributions made by parties - Defendant declared bankrupt

MORTGAGEES – where mortgagee disposed of chattels on mortgaged premises prior to exercise of power of sale – whether authorised by terms of mortgage – whether power to dispose of chattels limited to power to sell – whether plaintiff established title to sue – whether exclusion of liability operated to defeat claim for loss of chattels – MORTGAGEES – where plaintiff alleged failure to serve notice of default pursuant to s 57(2)(b) Real Property Act 1900 – "last known residential address" – notice not properly served - whether mortgagee liable in damages for "wrongful sale" – no cause of action shown – mortgagor limited to suit for accounts – no casual connection between alleged breach and loss in any event – no evidence of loss or damage – mortgagor's claims dismissed.

CONVEYANCING - Whether deposit forfeited - Section 55(2A) Conveyancing Act

BUILDING AND ENGINEERING CONTRACTS – action by council to recover alleged overpayment from contractor – contract to rehabilitate and redevelop disused landfill – where specification required plaintiff to excavate to ‘top of waste profile’ – where council claimed that contractor over-excavated – whether contract required or permitted contractor to excavate existing fill beyond the top of waste profile if the material then at the top of waste profile met the specification requirements for cover soil – whether contract required or permitted the contractor to excavate more than 100mm below the top of waste profile if additional excavation was necessary to ensure the cover soil layer met the specification requirements – whether excavation beyond the top of waste profile required council approval – whether council gave approval – whether excavation in fact performed affected ability of site to be impact rolled – whether impact rolling should take place on 100mm cover soil – whether thickness of cover soil layer as a working surface was part of temporary works necessary for contractor to undertake as part of lump sum provided for impact rolling – whether impact rolling trial was a variation – whether importing and laying of crushed sandstone compensable under contract – appropriate rate payable – whether contract included a fixed price for piling of underground tanks – what amount was agreed to be paid for piling of underground tanks.

TRUSTS AND TRUSTEES – removal of trustee – application for removal of sole trustee – infant beneficiary – whether trustee’s delay in contributing to beneficiary’s living expenses and relationship between trustee and beneficiary’s father justified removal – whether welfare of beneficiary adversely affected – turns on facts – no question of principle - SUCCESSION – application for provision under s 7 Family Provision Act – whether any evidence that testatrix’s provision for beneficiary was inadequate under s 9(2) – no question of principle

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute - observations on need for the parties to progress such matters promptly to hearing

FAMILY LAW AND CHILD WELFARE - De facto relationships - adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - six year de facto relationship - parties occupy house acquired and owned by one of them - evidence of the financial contributions to the acquisition, conservation or improvement of property or to the financial resources of the parties poorly substantiated - financial contributions equal - non-financial contributions and contributions as homemaker equal - HELD: not just and equitable to make an order adjusting the interests of the parties in property - claim dismissed.

Administrative law - Professional Standards Committee - whether reasonable apprehension of bias

EQUITY - trusts and trustees - appointment of new trustee - superannuation fund - prior appointment of natural persons as trustees ineffective as the trust deed - requires a corporate trustee - property held in the name of trustees de son tort is trust property - HELD: new trustee appointed - order that trust property be conveyed to the new trustee pursuant to Trustee Act 1925 s 79.

CORPORATIONS – application for summary dismissal of winding-up application – where deadlock in joint venture operated by trustee – where disputes and oppressive conduct alleged to arise from defendant’s breach of contract - CORPORATIONS – whether winding-up application is abuse of process by re-litigating issue already decided – whether abuse of process because another more suitable remedy exists – whether instituting winding-up proceedings breaches contractual dispute resolution clause and contractual term not to sell assets – whether winding-up application misconceived because winding-up trustee will not result in winding-up of trust – whether winding-up proceedings commenced for improper collateral purpose to cause defendant to commit event of default – question for final hearing whether parties entitled to invoke contractual dispute resolution clause in answer to winding-up application – question for final hearing whether defendant breached contractual obligation to act in good faith – question for final hearing whether grounds of oppression made out

INSURANCE – General – Policies of Insurance - INSURANCE – General – Availability of Indemnity - INTERPRETATION – General rules of construction of instruments – Commercial and business transactions - ENVIRONMENT AND PLANNING – Building control – Council consent and approval.

CRIMINAL LAW – appeal – sentence – break, enter and steal – aggravated break, enter and steal – 15 offences charged – 139 offences on Form 1 – no identifiable or manifest error – sentence reflects the number and seriousness of the offences

CRIMINAL LAW - appeal against stentence - guilty plea to manslaughter - whether Judge overstated severity of applicant's criminal history and took it into account as an aggravating factor - whether error in the assessment of the applicant's prospects of rehabilitation - whether sentence manifestly excessive.

CRIMINAL LAW - sentence following trial - aggravated sexual intercourse without consent (two counts) and detain for advantage - sexual assaults committed by restaurant manager against 15-year old employee - non-compliance with s.44 Crimes (Sentencing Procedure) Act 1999 concerning one count - claim that insufficient weight given to offender’s post-traumatic stress disorder, late expression of remorse and protective custody - whether sentences manifestly excessive - sentence varied to comply with s.44 - otherwise no error established and appeal dismissed

APPEAL – remitter from High Court for rehearing of appeal – first hearing of the appeal proceeded on an inaccurate record of evidence – question mark symbol cut off in original appeal papers – effect of question mark on probative force of evidence - EVIDENCE – admissibility and relevancy – notes of ambulance officers – inference of fact as to cause of injury and surrounding circumstances – business records under Evidence Act 1995 (NSW), s 69(1) – hearsay rule did not apply – representation made by maker of the document on the basis of information indirectly supplied by someone who had or might be reasonably supposed to have had personal knowledge of the asserted fact - EVIDENCE – admissibility and relevancy – opinion evidence under Evidence Act 1995 (NSW), s 78 – opinion of underlying matter or event includes perceptions of the aftermath of an incident – meaning of the word “necessary” in s 78(b) – the section does not require absolute necessity - NEGLIGENCE – causation – evidence – whether on the balance of probabilities the appellant suffered his injuries as described in the ambulance officers’ notes

PROCEDURE - Supreme Court procedure - New South Wales - out of time for filing of notice of cross-appeal under rules of court - application for extension of time - delay caused by party's own conduct - no steps taken for timely preparation of cross-appeal - Civil Procedure Act 2005 (NSW) ss 56-60 - duties of parties in the conduct of litigation - just and efficient determination of proceedings

TRADE AND COMMERCE - consumer protection - conditions and warranties - implied warranty of due care and skill - whether s 5N of the Civil Liability Act 2002 is inconsistent with s 68B and s 68(1)(c) of the Trade Practices Act 1974 - whether s 74(2A) of the Trade Practices Act picks up and renders effective s 5N of the Civil Liability Act - TRADE AND COMMERCE - consumer protection - conditions and warranties - implied warranty of due care and skill - s 68B of the Trade Practices Act 1974 - s 5N of the Civil Liability Act 2002 - limitation of liability in relation to the supply of recreational services - DAMAGES - breach of contract - s 16 of the Civil Liability Act 2002 - meaning of “personal injury damages” - whether grief, anxiety, distress and disappointment are elements of non-economic loss - whether there is a distinction between “disappointment” and “distress” - CONSTITUTIONAL LAW - the States - inconsistency of laws - exercise of federal jurisdiction by a State court - failure to comply with s 78B of the Judiciary Act 1903 - WORDS AND PHRASES - “applies”

INJUNCTION - freezing order

CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - whether innocent party elected to continue in contractual arrangement - mitigation - claim for liquidated sum - no obligation to mitigate. APPEAL - appeal from inferior Court - obligation to provide reasons - need for error of law to be found.

COSTS - offer of compromise - indemnity costs - discretion to "order otherwise" - whether exceptional circumstances needed - offer by Defendant for a verdict and judgment in its favour with Defendant to pay its own costs - change of basis of the case between time of the offer of compromise and the time of hearing - no order for indemnity costs made.

LANDLORD AND TENANT - leases and tenancy agreements - construction and interpretation - term of lease or tenancy - scope of "essential services" - whether breach of term that lessor must "maintain essential services" - whether lessee suffered loss or damage - whether lessee's damages could be offset against rent payable to lessor - where multiple causes of breach of lease

LANDLORD AND TENANT - leases and tenancy agreements - construction and interpretation - term of lease or tenancy - scope of "essential services" - whether breach of term that lessor must "maintain essential services" - whether lessee suffered loss or damage - whether lessee's damages could be offset against rent payable to lessor - where multiple causes of breach of lease

CONTRACTS – intention to create legally binding relations – written instrument entitled Letter of Agreement (“the agreement”) signed by the plaintiff and the defendant included a clause providing for review after six months of commissions payable under the agreement – whether agreement was legally binding from date of execution or only after review and further agreement on commissions had taken place – MISTAKE – whether the defendant was labouring under a serious and fundamental mistake that the contract was not to be immediately binding and whether the plaintiff induced this mistake by failing to correct it – FRUSTRATION – whether the agreement was discharged by supervening impossibility when this state of circumstances was induced by the defendant – RECTIFICATION – whether the omission of the words “or an associated entity” in the agreement was a mutual mistake and whether its inclusion would give effect to the parties’ common intention – CONSTRUCTION – construction of commercial contracts – agreement provides for commission payable on “sales by” the defendant but on 11 March 2004 the defendant executed a Supply Agreement with an associated entity appointing it as the defendant’s preferred supplier – whether “sales by” the defendant should be construed to include sales by the defendant or an associated entity of the defendant – whether sales to the defendant’s Franchisees through the medium of the associated entity are “sales by” the defendant – IMPLIED TERM – whether a term should be implied into the agreement under which the defendant is obliged to refrain by its own voluntary act from depriving the plaintiff of the benefits it would be entitled to, but for that voluntary act, under the agreement – whether the defendant has breached this term by interposing a third party to supply products to its Franchisees - TRADE PRACTICES – MISLEADING AND DECEPTIVE CONDUCT – Trade Practices Act 1974 (Cth) s 52 – whether the plaintiff engaged in conduct which was misleading or deceptive, or likely to mislead or deceive by inducing the defendant to believe that the contract was to be non-binding until further agreement on commissions had taken place - EQUITY – ESTOPPEL – general principles – whether the plaintiff held out and the defendant relied upon the assumption that the agreement was to be non-binding until further agreement on commissions had taken place – FIDUCIARY DUTY – whether the plaintiff was acting as legal advisor to the defendant and thus owed a fiduciary duty to act in the defendant’s best interests – whether the plaintiff breached this duty by failing to disclose that the agreement between them was legally binding

SUCCESSION - family provision - claim by widow - financial and material circumstances of Plaintiff- whether Plaintiff has been left without adequate provision of her proper maintenance - life intereset in Deceased's interest in matrimonial home is not adequate provision for a widow in situation of Plaintiff - contribution of Plaintiff towards acquisition of matrimonial home.

SUCCESSION – STATUTORY WILL – “Lost capacity case” – whether reasonably likely that incapacitated person would have intended estate to vest in Crown as bona vacantia – whether reasonably likely that she would have made dispositions of proposed will.

PRACTICE AND PROCEDURE – plaintiff sought interlocutory injunction to restrain defendant from continuing to publish on his website material adverse to the plaintiff – Fair Trading Act 1987 s 42 – injurious falsehood - whether defendant's conduct in trade or commerce – malice whether serious question to be tried – whether plaintiff is likely to suffer injury for which damages are inadequate remedy – balance of convenience – order defendant be restrained until final hearing

Corporations Law. Application to set aside a statutory demand. Offsetting claim not established. Proceedings dismissed.

Practice and procedure - Final hearing dates requiring to be vacated - City of Sydney seeks release from undertakings given to the Court by reason of the new environment where no substitute hearing date has been given - Interlocutory injunctions - Principles

SUCCESSION – WILLS – CONSTRUCTION – CHARITABLE TRUST – CY-PRES SCHEME – Gift to “Sydney Hospital” – whether gift to separately operating hospital known as “Sydney Hospital and Sydney Eye Hospital” – whether terms of gift now impracticable – whether cy-pres scheme should be ordered.

CRIMINAL LAW — Sentencing — failure to set non-parole period for offence in Table to Division 1A of Part 4 of Crimes (Sentencing Procedure) Act — record of previous convictions s 21A(2)(d) — whether offence committed in home of victim s 21A(2)(eb) — whether offence involved gratuitous cruelty s 21A(2)(f) — whether matter can be proved beyond reasonable doubt by victim impact statement — youth and immaturity of offender — whether sentences manifestly excessive

PROCEDURE – Court of Appeal – written submissions – deprecation of the incorporation of written submissions below merely by reference to comply with page limits

CRIMINAL LAW - sentence appeal - drug offences - discount for assistance.

ADMINISTRATIVE LAW — Judicial review — Workers compensation — Assessment of impairment — Appeal against decision of registrar, approved medical specialist and medical appeal panel – Whether error on face of record or jurisdictional error

PROCEDURE - application by defendant for summary dismissal of plaintiff's application for order setting aside statutory demand - question whether service effected before statutory deadline - apparently conflicting evidence - summary dismissal refused

EVIDENCE - expert evidence - reports of experts - whether report complies with Expert Witness Code and principles in Makita v Sprowles - assumptions not stated - lack of analysis and reasons - evidence supplemented in the witness box - need for adjournment to enable other party to obtain expert evidence in reply.

Practice and procedure - Major litigation concerning Public Transport Ticketing contract with Integrated Transit Solutions - Dispute arising from plaintiff's decision to terminate contract for the design, build and installation of an integrated Smartcard-based Ticketing and Fare payment system for public transport in the greater Sydney area - Claim by the State of New South Wales for an order excusing plaintiff from making available particular documents for inspection by defendants on basis that they relate to matters of State - Claim by defendants that plaintiff and State have taken a selective approach to the documents over which a claim has been asserted and that documents recording communications between plaintiff and New South Wales Government have been made available where it suits the purposes of the plaintiff to have them available in the proceedings and have been withheld where those purposes are not served - Material legal principles - Onus rests upon State to establish that material documents relate to 'matters of State' and that the balancing test favours non-production of material documents

PRACTICE AND PROCEDURE - notice of motion seeking summons to be struck out - whether updated facts and circumstances that relate to second defendant should be struck out - whether pleading of the plaintiff complies with rule 1.26 of the UCPR 2005 (NSW)

APPEAL AND REVIEW – appeal from magistrate – contractual dispute – determined by magistrate on facts – not solely question of law – appeal dismissed and leave to appeal dismissed

FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - house property held by Plaintiff as to 10 per cent and by Defendant as to 90 per cent - parties jointly liable for mortgage debt.

APPEAL - civil - right to appeal from decision of District Court on an appeal from the Consumer, Trader and Tenancy Tribunal - ADMINISTRATIVE LAW - judicial review - whether necessary to supplement statutory appeal - bifurcated jurisdiction - PROCEDURE - civil - transfer of proceedings to Court of Appeal - avoidance of cost and delay - Uniform Civil Procedure Rules 2005 (NSW), r 1.21(1) - WORDS & PHRASES - "action"