Cases and authorities

COSTS – action for specific performance of contract for sale of land subject to lease – real dispute between purchaser and lessee – lessee not joined as additional defendant on originating process – vendor filed cross-summons joining purchaser and lessee – purchaser and lessee reached confidential settlement with no order as to costs – vendor submitted to court orders - COSTS – whether purchaser entitled to costs – vendor acted reasonably in not accepting purchaser’s offer of compromise – offer of compromise would not resolve issues without lessee’s agreement – no basis for awarding indemnity costs against vendor – court cannot be satisfied of purchaser’s success against vendor without full hearing on merits – operation of rule in Tasker v Small – joinder of lessee necessary for determination of all matters in dispute – no basis for awarding costs on ordinary basis against vendor – lessee would be liable for purchaser’s costs had purchaser succeeded after a trial – lessee and purchaser compromised their claims as to costs against each other - COSTS – whether vendor entitled to costs – vendor acted reasonably in filing cross-summons to bring all issues to court for determination – lessee to pay vendor’s costs of cross-summons – cost assessor to determine what costs fairly and reasonably incurred

CONTRACTS - general contractual principles - construction and interpretation of contracts - where operative words of contract contain no obligation on one party - where recital states that that party "has agreed" to "rent" chattel to the other party - where second party's obligations relate to "renting" of that chattel from first party - whether, as a matter of construction, the recital contains a contractual promise of the first party - BAILMENTS - particular bailments - hire of chattel - promise by one party to "rent" chattel to other party - meaning of "rent" - held promise to hire chattel - express content of promise requires giving of possession of chattel - CONTRACTS - implied terms - express term excludes all terms that would otherwise be implied - whether requirement under agreement for hire that possession be given is an express term or an implied term - held an express term - ESTOPPEL - estoppel by convention - written statement by party to whom possession to be given that it has received possession - whether parties therefore had and proceeded on shared assumption that possession had passed - where commercial and financial circumstances were such that neither party could possibly have believed that possession had been obtained - RESTITUTION - restitution resulting from unenforceable incomplete illegal or void contracts - recovery of money paid - where several monthly payments of "rent" made but possession never obtained

CORPORATIONS - receivership - where receiver in office on restricted basis - assets shown to be in jeopardy - restriction removed - CORPORATIONS - winding up - insolvency - insolvency to be presumed in one case - insolvency sufficiently proved in another case - winding up orders made - factors affecting choice of liquidator

TRUSTS - proper construction of power of appointment and removal of trustee in trust deed - whether trustee effectively removed - whether new trustee effectively appointed - whether caveat lodged by the latter of no effect because it had no caveatable interest - whether caveator required leave of the Court to lodge a second caveat - CAVEATS - whether caveator had caveatable interest - whether caveator required leave of the Court to lodge a second caveat

CONTRACTS - General Contractual Principles - Offer and Acceptance - mother gave money to daughter - brother as administrator of mother's estate claimed a contract in consideration of daughter not making a claim on her father's estate and sought specific performance - daughter said a gift - solicitor and mother signed a document acknowledging it was a gift not to be repaid

CORPORATIONS – MANAGED INVESTMENT SCHEME – WINDING UP – JUST AND EQUITABLE – Responsible entity insolvent – funds of Schemes probably lost in fraudulent investments – Schemes inherently improvident – considerations of public policy.

CRIMINAL LAW – sexual offence – relationship evidence – proper use of directions to jury. - CRIMINAL APPEAL – sexual offence –misdirection on proper use of relationship evidence –complainant’s evidence not corroborated – oath against oath –proviso not available.

CRIMINAL LAW AND PROCEDURE - Trial - Address by Crown Prosecutor - Alleged misstatements of fact - Departures from the Crown case as presented, inapt submissions to the jury, assertions of personal opinion - HELD - (Grove J and Simpson J - RA Hulme J dissenting) - The cumulative effect of the defects in the Crown Prosecutor's address and the insufficiency of some corrections by the presiding Judge caused a miscarriage

CRIMINAL LAW - Proceedings after conviction and sentence - Crown appeal - Offence under s 33B(1) of Crimes Act and 7 counts of assault occasioning actual bodily harm - use of motor vehicle as weapon - whether sentence imposed failed to reflect criminality involved in the infliction of injuries to numerous persons - whether overall sentence imposed manifestly inadequate - respondent resentenced.

CRIMINAL LAW - Sentence - Crown Appeal - sentences imposed after trial for robbery in company - whether sentences manifestly inadequate - respondents resentenced

CRIMINAL LAW AND PROCEDURE - Dangerous driving occasioning death - Sentence - Order for service by periodic detention - Collision at dawn by vehicle driven by offender and motorcycle - Vehicle engaged in overtaking manoeuvre - Rural road - No breach of road rule or restrictive signage - Misjudgment the effective cause - Crown assertion that sentence manifestly inadequate not established

DAMAGES - medical and other expenses payable by Dust Diseases Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES - medical and other expenses payable by Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES TRIBUNAL - assessment of damages - statutory power of reconsideration - Dust Diseases Tribunal Act s 13(6) - relevance to deduction of medical and other expenses - unsuccessful application by plaintiff for benefits - finding that fresh application would succeed - whether Judge entitled to deduct benefits subject to reconsideration if fresh application unsuccessful.

ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily reversing administrative decision – Administrative Decisions Tribunal Act 1997 (NSW), s 60(2) - PROCEDURE – judgments and orders – stay of orders – distinction between stay of orders and order temporarily reversing reviewable decision - STATUTORY INTERPRETATION – purposive approach – statutory derogation from procedural fairness – tribunal obliged to prevent disclosure when hearing application for review of administrative decision – whether obligation applies to hearing of application for 'stay' of administrative decision pending review – Security Industry Act 1997 (NSW), s 29(3) - WORDS & PHRASES – "criminal intelligence report" – "otherwise affecting the operation of the decision under review"

TAXES AND DUTIES - Land Tax - summary disposal - default judgment - setting aside default judgment - defective statement of claim - where moneys sought for unpaid land tax and interest under the Taxation Administration Act 1996 - whether pleadings failed to summarise material facts constituting cause of action - where service of the notices of assessment or payment due date not pleaded - whether deficiencies in pleadings overcome by recourse to r 14.11 of the Uniform Civil Procedure Rules 2005 - discussion of the balancing task involved in exercising discretion under r 36.15(1) and 36.16(2)(a) - power of District Court to set aside default judgment under the Rules

ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) - Legal Profession Act and Regulation - professional misconduct - not necessary that criminal proceedings, where available, be brought prior to disciplinary proceedings in the Tribunal - PROFESSIONS AND TRADES - lawyers - complaints and discipline - prohibition on marketing legal services in respect of personal injury - meaning of “advertisement” and “marketing” - Legal Profession Act s 85 and Legal Profession Regulation cl 24

CONTRACT – construction - pre-contractual negotiations as such and post-contractual conduct - not admissible on construction. - CONTRACT - party preventing or obstructing performance by other party - cannot take advantage of own wrong - other party not in breach. - CONTRACT – damages - reliance loss - onus on party in breach to prove that performance would not have enabled innocent party to recover expenditure. - LANDLORD & TENANT – repudiation - innocent party entitled to terminate lease - landlord not bound to comply with s 129 of Conveyancing Act. - LANDLORD & TENANT - breach by tenant of essential term - termination by landlord - compliance with s 129 of Conveyancing Act essential. - LANDLORD & TENANT - retail lease - statutory prohibition of unconscionable conduct - landlord in breach. - ADMINISTRATIVE DECISIONS TRIBUNAL - orders for costs - relevant factors. - ADMINISTRATIVE DECISIONS TRIBUNAL – orders for costs - appeal to Supreme Court on questions of law - appeal only by leave.

PRACTICE AND PROCEDURE – service of originating process – whether court has power to dispense with service without substituted service – order for substituted service under rule 10.14 of Uniform Civil Procedure Rules – requirements for substituted service

TRADE AND COMMERCE [80] – Trade practices and related matters – Consumer protection – Misleading or deceptive or unconscionable conduct – Character and attributes of conduct – Representations – Need for clarity.

REAL PROPERTY – EASEMENTS – application under s 89 of Conveyancing Act to extinguish easements – undertakings to create replacement easements – proposed extinguishment would not cause substantial injury to any person entitled to easements – non-joinder of person entitled to easement not basis for refusing orders – whether conditional orders can be made under s 89 – whether proceedings to be adjourned pending completion of works – conditional orders for extinguishment to take effect on creation of new easements

CONTRACT - whether oral contract that A would pay B amount equal to 30 per cent of net sale proceeds of a gold mine if B put a structure in place whereby it could be sold and found a buyer - if so, whether agreement activated by B's performance of terms - TRUSTS - whether B's share in C held as nominee for or on trust for A - whether C's shares in a gold mine held as trustee for A's family trust

PRACTICE AND PROCEDURE - Service of originating process out of jurisdiction - Whether breach of contract in the State - PRIVATE INTERNATIONAL LAW - Stay of proceedings - Clearly inappropriate forum - Contract - Whether breach in the State

CRIMINAL LAW AND PROCEDURE - Sentence - Robbery whilst armed - Two victims - Extremely serious injury to one victim - Co-offenders - Different roles - No error by sentencing judge in application of principles - Assessments within range of discretion - Grounds raising no particular point of principle

No question of principle.

REAL PROPERTY- easements- equity- relief against forfeiture- grantor with contractual right to have easement released if dominant tenement owner breached conditions- whether relief against forfeiture should be granted- whether requirement of unconscionable conduct on respondents' part- breaches caused substantial inconvenience and loss of amenity to the servient tenement- no error in trial judge refusing relief. REAL PROPERTY- easements- court imposed easement- whether regard had to the rights of the servient tenement owner in determining whether "reasonably necessary"- whether regard to effect on servient tenement proper in assessment of "reasonably necessary"- Conveyancing Act 1919, s 88K.

Appeal - Slip and fall accident in shopping centre - Ex-tempore judgment - Whether failure to give reaons for decision - Failure to consider points in issue - Failure to analyse inconsistencies - Inadequate reasons - Whether new trial should be ordered.

STATUTES – construction – particular statutes – Births, Deaths and Marriages Registration Act 1995 and Regulation – whether change of name by registration is the exclusive method for a person to change name – whether a name that is not itself a registered name can be changed by registration of a new name – whether a “former name” must be one that was willingly adopted – whether a person can have more than one name at the one time – whether a shortened form of a person’s name is a different name – ADMINISTRATIVE LAW – appeals from administrative authorities – orders sought correcting or amending the Births, Deaths and Marriages Register and form of Change of Name Certificate – appeal relating to Registrar's decisions about information retained in the Births, Deaths and Marriages Register and the form of name change certificates – recognition of names in law – requirement of clause 8(d) to record “any other former names of the person” extends to “other former names” that are not registered names – departure from statutory requirements relating to name change would not automatically invalidate change of name – appeal dismissed – costs – CONSTITUTIONAL LAW – statutes – whether “Attorney-General’s Department” an entity capable of being sued – PROCEDURE – Supreme Court procedure – New South Wales – parties – whether correct name of party is ‘Attorney General’s Department’ or ‘State of NSW’ – ADMINISTRATIVE LAW – prerogative writs and orders – Mandamus sought concerning application to amend personal records under Freedom of Information Act 1989 – nature and appropriateness of remedy – prerogative writs can be refused if there is another equally convenient and effective remedy – leave to appeal from decision at trial to summarily dismiss matters refused because alternative remedy available – PROCEDURE – Supreme Court procedure – New South Wales –procedure under Rules of court – case management – ability of court to deal with applications for concurrent hearing of an application for leave to appeal and the appeal in the absence of the public and without attendance of any person under Uniform Civil Procedure Rules 51.14 – CONTRACTS – general contractual principles – existence of a contract – held at trial that no contract arose between government and citizen requiring government to provide effective services of types that legislation empowered government to provide – leave to appeal refused on basis of insufficient prospects of success

TAXES AND DUTIES - income tax - penalties - directors of non-remitting companies - service of notice under s 222AOE Income Tax Assessment Act 1936 (Cth) - whether notice sent by prepaid post was sent to the last known residence of the appellant for the purpose of s 28A(1)(a)(ii) Acts Interpretation Act 1901 (Cth)

APPEAL – procedure – application to vacate hearing dates – special leave application pending in High Court of Australia seeking to challenge validity of legislation under which administrative acts impugned in State proceedings taken.

Contracts - Proper construction - Deed whereunder plaintive purchases capital in insurance companies - Dispute concerning amount of adjustment to be made to the purchase price following completion and way in which amount of adjustment was to be determined - Consideration of sundry different actuarial methods - Consideration of methods of estimating reinsurance recoveries

CORPORATIONS – alleged breach of s 232 Corporations Act – diversion of corporate opportunities – breakdown of business relationship and cessation of trading of company – main business diverted to new company owned by majority of shareholders and directors – oppressive conduct found – majority shareholders ordered to purchase minority shareholder’s share in company – principles concerning valuation of shares in oppression suits – consideration of value attributable for goodwill – share valued largely by reference to value of company’s claim against directors for breach of statutory and fiduciary duties in diversion of corporate opportunities

LEGAL PRACTITIONERS - Removal from Roll of Local Lawyers - professional misconduct - whether fit and proper person to remain on the Roll - whether person of good fame and character - Legal Profession Act 2004 (NSW) ss 25, 42 and 497 - lawyer convicted for making false instrument - effluxion of time and reformation of character - nature and quality of criminal conduct established present unfitness to practise.

CORPORATIONS – EQUITY – CONTRACT – PRIVATE INTERNATIONAL LAW – PRACTICE AND PROCEDURE – Corporations Act 2001 (Cth) s 500(2) – a newly appointed General Managing Partner incorporated in the Cayman Islands of a limited partnership registered in England commenced proceedings in this Division against the former General Managing Partner and three other entities in the Babcock & Brown Group claiming damages for breach of fiduciary duties owed to the partnership and for breach of duty of care – the first of those other entities (an Australian corporation) is in liquidation and the proceedings were commenced without the necessary statutory leave – leave was opposed by the liquidators – requirements for leave and whether it should be granted in this case – the former General Managing Partner (the fourth defendant in these proceedings) which is incorporated in the Cayman Islands commenced proceedings in England for monies allegedly owed to it under the Partnership Agreement – one of the two other entities sued in this Court (the second defendant) is an Australian corporation, the other is a limited partnership in Delaware – they are also plaintiffs in the English proceedings claiming declaratory relief – the plaintiffs in the English proceedings (the second, third and fourth defendants here) brought motions to set aside the summons against them, to set aside service, to dismiss the proceedings or to stay them – PRACTICE AND PROCEDURE – summary dismissal and striking out – whether plaintiff’s case should be struck out as not disclosing a cause of action or as embarrassing - EQUITY – standing of the plaintiff to sue for damages suffered by “the Partnership” – CONTRACT – Partnership Agreement contains covenant consenting to the exclusive jurisdiction of the English courts – construction and operation of the provision – PRIVATE INTERNATIONAL LAW – forum non conveniens – whether this jurisdiction is clearly inappropriate for the proceedings

CRIMINAL LAW - Sentence - applicant charged with sale of unauthorised decoders and possession of money received from undercover police officer - possession charge an abuse of process - charge dismissed under s 19B(1)(c) of Crimes Act (Cth)

CRIMINAL LAW — Sentencing — Crimes (Sentencing Procedure) Act s 21A(2)(n)

ARREST – arrest at common law – Christie v Leachinsky [1947] AC 573 – requirement to inform of the “true reason” for arrest - ARREST – arrest without warrant – Crimes Act 1900 – s 352 – preconditions for arrest – lawfulness of arrest - OFFENCES – Transport Administration (Railway Offences) Regulation 1994 – cl 41 – requirement to provide warning - LICENCE – implied licence – trespass on railway land – hole in fence to railway land – whether hole in fence amounts to implied licence – whether prior use or use by other of hole in fence amounts to implied licence - EVIDENCE – Evidence Act 1995 – ss 55 & 56 – relevant evidence – evidence used for multiple purposes – credit findings – whether medical evidence as to damage can be used in adverse credit findings - EVIDENCE – Evidence Act 1995 – s 136 – unfairly prejudicial evidence – procedural fairness – limiting use of evidence – need for an application under s 136 to be made

REAL PROPERTY – where lessee exercised option to renew lease – whether lessor validly terminated lease for breach – whether lessee entitled to relief against forfeiture - EQUITY – plaintiff not barred from seeking relief against forfeiture because denies breach of lease – lessee not precluded from denying breach of lease because makes alternative claim for relief against forfeiture - REAL PROPERTY – lessee’s use of land outside leased premises did not constitute breach justifying termination of lease – no trespass by lessee – lessor consented to lessee’s use of land outside leased premises for valuable consideration for term of lease – no variation of lease to include additional area – insufficient certainty of land to be subject to enforceable agreement for lease under Conveyancing Act, s 54A – no breach by lessee of obligation to pay lessor’s legal costs for default justifying lessor’s termination of lease – lessee otherwise entitled to relief against forfeiture

CONTRACTS – mistake – unilateral mistake – option to purchase included in lease by mistake – lease result of exercise of option for new lease which should not have included option to purchase – new lease assigned to plaintiff company which exercised option to purchase – whether defence to specific performance available on ground of mistake REAL PROPERTY – leases – assignment of leases – whether assignee had knowledge of mistake – whether specific performance available to assignee REAL PROPERTY – leases – whether option to purchase lease exercisable by assignee – effect after registration of knowledge gained prior to registration

DECLARATIONS –declaration sought as to existence of enforceable agreement to include certain covenants in favour of plaintiff in contract for sale of defendant’s unit in a retirement village operated by plaintiff – whether declaration hypothetical and of no utility in circumstances where no sale presently proposed – request to grant declaration as to enforceability of agreement – limited declaration granted as to effect on contractual clause of orders previously made by the Consumer Trader and Tenancy Tribunal – otherwise Amended Summons dismissed – CAVEATS – declaration sought as to maintainability of caveat – interest claimed in caveat is interest to compel inclusion in agreement for sale of land of restrictive covenants – doubt as to existence of caveatable interest – issue hypothetical – declaration refused

FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - assets and income of Plaintiff far exceeded those of Defendant - contributions of Defendant (although far less than those of Plaintiff) should not be entirely disregarded.

CONTRACTS - appeal from Local Court - breach of contract - whether breach of contract is question of mixed fact and law - whether software package delivered by online download is properly classed as "goods" for application of Sale of Goods Act - applicability of statutory warranties of fitness for purpose and merchantable quality - implied terms - whether equivalent terms of fitness for purpose and merchantable quality implied by common law

CRIMINAL LAW - appeal - construction by trial judge of evidence as an admission tendered against interests of the accused and version of facts - direction by trial judge related to the conspiracy - trial judge summing up directions - whether verdict of jury is unreasonable - whether trial judge erred in refusing to grant access to the information on oath by a Federal Agent - whether trial judge overstated applicant's role and involvement in the offence - whether applicant has a legitimate sense of grievance for sentence imposed - whether trial of the applicant miscarried due to non-disclosure or late disclosure of material relevant to defence - whether trial judge wrongly refused applicant access to undisclosed material

CONTRACT – breach – damages – time for assessment – relevance of post-breach events - TORT – breach of duty of care – damages – time for assessment – relevance of post-breach events - FIDUCIARY DUTY – breach – equitable compensation – time of determination of quantum - DAMAGES – contract – tort – breach of fiduciary duty – whether innocent party entitled to choose most advantageous remedy - CONTRACT – breach – damages – deprivation of opportunity – standard of proof applicable where innocent party seeks to establish future possibilities and past hypothetical situations - CONTRACT – breach – damages – where evidence called by innocent party fails to provide rational foundation for proper estimate of damages - EVIDENCE – admissibility of evidence from innocent party as to conduct if breach of contract had not occurred – s 5D Civil Liability Act 2002 (NSW) - PROCEDURE – notice of appeal – status of amended notice of appeal filed without leave after judgment reserved - PROCEDURE – submissions – where limited leave granted to submit further submissions on certain points after judgment reserved – where further submissions exceed scope of leave granted without further leave applied for or given

PROCEDURE – discovery – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1)(a) – whether appellant may have a claim for relief – asserted claims for interlocutory injunction and defamation – extent to which “fishing” allowed - PROCEDURE – discovery – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1)(a) – whether application for interlocutory injunction a “claim for relief” - PROCEDURE – discovery – preliminary discovery – relevance of likely prospects of success on application for interlocutory injunction on exercise of discretion to order preliminary discovery - INJUNCTIONS – defamation – interlocutory injunction to restrain publication – proposed justification defence – freedom of expression – prior publication of allegedly defamatory imputations - ROYAL COMMISSIONS – evidence – whether statutory prohibition on use of evidence given unwillingly can be waived – Royal Commissions Act 1923 (NSW) s 17(2) - WORDS AND PHRASES – “claim for relief”

TORTS – Negligence – liability for others’ negligence – agency – whether first respondent liable as principal for actions of husband or contractors with which she had no direct involvement – whether first respondent vicariously liable for actions of husband or contractors - TORTS – Negligence – causation - TORTS – Negligence – liability of second respondent – effect of failure to notify neighbouring residents of amended development plans – alleged failure to consider heritage impact in approving development application – whether Council obliged to supervise works not requiring Council approval – effect of failure to include tree on Significant Tree Register negligent - TORTS – Negligence – liability of second respondent – causation - PROCEDURE – Application to amend statement of claim – whether trial judge’s refusal to allow application appropriate - PROCEDURE – Judges – application for disqualification – bias – whether trial judge’s conduct during trial evidenced bias - PROCEDURE – Judgments and orders – obligation to provide reasons – whether trial judge’s reasons adequate - EVIDENCE – Expert report – admissibility – whether expert provided appropriate factual basis for his opinions – effect of trial judge’s failure to read entire report before ruling – whether appellants denied a proper hearing - DAMAGES – Quantum – whether approach of trial judge appropriate

PROCEDURE - declaration of the existence of a charge made in the absence of the defendants - motion to set aside - no adequate explanation of defendants' failure to appear at hearing where declaration made - no procedural basis shown to set aside declaration - declaration not set aside - defendant's substantive arguments for setting aside declaration would fail in any event - CONTRACTS - building, engineering and related contracts - other matters - defendants' recent attempt to exercise rights of termination of the contract does not displace builder's existing security rights under the charge - existing costs orders confirmed - whether defendants should be given leave to cross claim reserved - EQUITY - equitable charges - enforcement - motion for judicial sale of defendants' property the subject of a charge - orders for judicial sale of property made - stay order for sale until plaintiff's costs assessed - acrimonious dispute - sale in court by a trustee appropriate - leave granted to plaintiff to bid at public auction

Corporations Act. Application to set aside statutory demand under s 459G of the Corporations Act. Whether proceedings were in breach of the terms of a facility agreement between parties. Held not. Offsetting claim not sufficiently quantified. Proceedings dismissed.

PROBATE WILLS AND ADMINISTRATION – application for grant of probate of undated document entitled draft will – deceased made earlier will – deceased subsequently indicated desire to alter bequests – deceased executed informal will and draft will from will kit – difficulties with will kit instructions – draft will not admitted to probate

EQUITY - Equitable Doctrines and Presumptions - Rectification - whether common intention that purchase price of land was "+ GST" - whether price in contract for sale should be rectified by the addition of "+ GST" - calculation of GST where sale partly a taxable supply and partly input-taxed - whether vendor obliged to pay purchaser 1/11th of price on completion

CRIMINAL LAW - appeal by Crown against evidentiary rulings - knowingly concerned in manufacture of amphetamine - Crown case circumstantial - rejection of evidence bearing on relationship between respondent and principal offender - whether Crown case substantially weakened