Cases and authorities

Damages - Summary of principles in relation to damages generally and contract damages in particular - Separate question orders agreed by parties - Lost profits-competing contentions on treatment of overheads/fixed costs -

PROCEDURE - costs - plaintiff successful in gaining principal relief sought - general rule costs follow the event - successful party may be deprived of costs due to his own conduct - plaintiff not entitled to all his costs due to plaintiff's own conduct

PROCEDURE - Judgment and orders - Judgmetn by default - Application to set aside default judgment - Whether defence on merits

COSTS - Plaintiffs' property destroyed by fire - schedules of items of personal property prepared - whether plaintiffs entitled to costs of all schedules - claim for landscaping and vegetable garden made by plaintiffs - claim withdrawn - whether defendant entitled to costs of preparing to meet that claim.

CRIMINAL LAW - Sentencing - manslaughter - Crown appeal - double jeopardy - meaning of s 68A Crimes (Appeal and Review) Act 2001 - Constitutional validity of Crimes (Appeal and Review) Act 2001, s 68A - manifestly inadequate sentence - resentencing - objective seriousness of the offence - head butt causing death - general deterrence - alcohol-fuelled violence

CONTRACTS - building contract - builder's obligation to execute work in proper and workmanlike manner - compacted land fill allowed to dry out before concrete slab poured on top of it - DAMAGES - breaches of building contract for construction of dwelling - whether underpinning to rectify stability related breach reasonable - Bellgrove v Eldridge - Tabcorp Holdings Pty Ltd v Bowen Investments Pty Ltd

PROCEDURE – courts and judges generally – judges – appellant seeking disqualification for apprehended interest or bias – request for judge to disqualify self on basis of apprehended bias – what amount of relevant knowledge is to be attributed to the “fair-minded lay-observer” – question of apprehended bias in context of judges and lawyers operating as part of a shared profession – judge’s prior associations with litigant and that litigant’s barristers held insufficient to warrant self-exclusion

WORKERS' COMPENSATION – personal injury – obligation of tortfeasor to indemnify person by whom compensation paid – whether payment pursuant to indemnity satisfies indemnity – whether indemnity covers damages for future loss – Workers Compensation Act 1987 (NSW), s 151Z(1)(b), (1)(d), (1)(e1) and (4) - WORKERS' COMPENSATION – obligation on worker to repay compensation from award of damages – whether obligation extends to damages for future loss – when worker “recovers” damages – whether judgment for one amount within operation of Workers Compensation Act 1987 (NSW), s 151Z(4) - WORDS & PHRASES – "judgment for damages" – "recovery of damages" – “periodic or other payments” – "structured settlement"

ENVIRONMENT & PLANNING – local environmental plan – public exhibition of amending plan – whether misleading – nature of reasonable person examining exhibited documents - WORDS & PHRASES – "bulky goods retailing" – "industrial purposes" – "public exhibition" – "reasonable reader"

CONTRACTS – general contractual principles – construction and interpretation of contracts – meaning of ‘general advertising structure’ –– construction involves ascertainment of meaning which the document would convey to a reasonable person with all relevant background knowledge – evidence of negotiations and of parties intentions not admissible except to extent that they reveal facts that both parties knew and that were relevant to construction – CONTRACTS – general contractual principles – discharge, breach and defences to action for breach – INTERPRETATION – general rules of construction of instruments – admissibility of extrinsic evidence in relation to instruments – strong but rebuttable presumption that technical words or phrases are intended to be used according to their correct technical meaning – current approach involves ascertaining what the reasonable reader would take the words of a particular document, in its context, to mean – if extrinsic circumstances cannot be established by evidence, one can look to the circumstances that one can know without evidence from outside terms of document – EVIDENCE – admissibility and relevancy – whether additional evidence can be received on appeal pursuant to s75A(7) – what constitutes “special grounds” for the purpose of s75A(7) – Akins tests – tests for determining “special grounds” are not exhaustive and possess some flexibility – LANDLORD AND TENANT – form and contents of lease – commercial lease for advertising site – construction of terms – extent to which lease creates indefeasible rights – whether termination for breach valid – clauses of original lease admissible as evidence to aid understanding of current varied lease

PRACTICE AND PROCEDURE - amendment to statement of claim - mistake in name of party - application of subsection 64(4) Civil Procedure Act - significance of words "as if" - amendment to take effect from date of filing of statement of claim - DUST DISEASES TRIBUNAL - jurisdiction - smoke in aircraft cabin - whether smoke was dust - whether plaintiff suffering from dust-related condition - APPEAL - appeal from decision in point of law only - whether finding that smoke contained dust was a decision in point of law - whether appeal available in relation to judge's finding as to damages - application to amend notice of appeal - point not taken before Tribunal - whether further evidence could have been adduced - whether proposed amendment challenged a decision in point of law - discretionary issues.

WORKERS COMPENSATION - appeal - appeal from Workers Compensation Commission - appeal limited to where aggrieved by decision in point of law - whether failure to grant an oral hearing under s 354 of the Workplace Injury Management and Workers Compensation Act 1998 an error in point of law - no error shown - whether employment concerned was a substantial contributing factor to the injury - whether there was a failure to consider employment characteristics - section 9A of the Workers Compensation Act 1987 - no error in point of law - importance of properly framing grounds of appeal - with identification of decision in point of law.

CONTRACT- rescission- misrepresentations- whether purchaser for sale of land entitled to rescind. CONVEYANCING- whether adverse affectation sufficiently disclosed- when purchaser may be said to be unaware of affectation- consequences of false answer to requisition. PROFESSIONS AND TRADES- estate agent- commission- absence of signed contract at trial- significance- sale not completed- whether agent entitled to commission. TORT- duty of care- whether vendor owed estate agent duty with respect to the provision of information for preparing sale brochure- whether commercial property agent could be considered "vulnerable". TRADE PRACTICES- false and misleading conduct- involvement of estate agent in producing brochure principally from information obtained from client- whether agent a mere conduit or liable as principal- whether agent entitled to indemnity from client- whether sole director of corporate client liable as accessory- Trade Practices Act 1974 (Cth), ss 52, 75B.

TORT – Negligence – Duty of care owed by entity to whom a worker was hired out – Whether breach of duty established – Apportionment of liability between that entity and another tortfeasor. - APPEAL – Fresh evidence – Matter falling within area of uncertainty where trial judge’s estimate made – Not admitted to support ground of appeal – Other grounds of appeal made out, and evidence admitted to assist Court of Appeal to reassess damages. - DAMAGES – Future economic loss – Trial judge’s assessment based on current earnings, which were in excess of what it was likely that the plaintiff would have earned but for the injury – Error shown – Civil Liability Act 2002 s13.

ADMINISTRATIVE LAW - prerogative writs and orders - certiorari and prohibition - bias alleged against Magistrate - bias based on evidentiary and other rulings.

BANKING AND FINANCE – Bank guarantee – notice of – effect of unauthorised delivery to favouree – not a negotiable instrument – not money – held, unauthorised delivery does not give favouree title to guarantee – AGENCY – ostensible authority – whether possession of bank guarantee sufficient to confer ostensible authority to deliver same to favouree – held, more than mere possession is required to indicate authority to deal

PROCEDURE – leave to rely on evidence not served in compliance with Court’s directions – no reason to allow evidence to be adduced at such late stage.

Partnership. Further matters concerning accounting. Costs of the whole accounting. No matter of principle.

PROBATE AND ADMINISTRATION – accounts –– plaintiff sought order for administrator to file or file and pass accounts in compliance with statutory obligation under s 85 Probate and Administration Act 1898 – deceased died in 1980 –– defendant relied on incorrect legal advice as to obligation to file accounts –– estate records no longer available to defendant – HELD – laches/acquiescence not available as defences to claim based on existence of statutory obligation –– discretion in court whether to grant relief and, if so, time and manner in which accounts should be filed –– consideration of factors relevant to exercise of discretion (delay of plaintiffs in seeking relief –– reason for failure of defendant to comply with obligation –– incomplete records available to defendant –– small size of estate –– onerous nature of procedure for accounts to be taken likelihood that order will be futile due to defendant’s inability to produce necessary documents for preparation of accounts –– disproportionate cost of such a process where estate so small) –– in exercise of court’s discretion relief should not be granted –– plaintiffs’ claim dismissed

CORPORATIONS – STATUTORY DEMAND – Application to set aside statutory demand – whether genuine dispute as to existence of debt – whether demand should be set aside for some other reason – whether compulsory arbitration agreement covering dispute constitutes some “other reason” under s 459J(1)(b).

CORPORATIONS – appointment of provisional liquidator and interim receiver and manager – strong prima facie case of insolvency – deadlock in management – strong prima facie case for winding up on just and equitable grounds – likely costs of provisional liquidation and receivership may be reduced by retainer of consultant familiar with business

SUCCESSION - family provision - claim by adult son - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claim of Defendant, who is de facto widow of Deceased - whether Plaintiff is a person under legal incapacity - whether Plaintiff is incapable of managing his affairs - proceedings instituted without a tutor for Plaintiff - whether tutor necessary - application by Defendant that Plaintiff's solicitor should personally pay costs - whether solicitor acted without reasonable cause.

CONVEYANCING - contract for sale of land - contract signed and exchanged upon conclusion of auction - whether written contract supplemented by inconsistent oral contract concerning incidence of GST - purchaser seeks specific performance of written contract - vendors seek specific performance of that contract as allegedly supplemented - CONTRACTS - contract in writing - whether modified by collateral oral contract - parol evidence rule - EQUITY - equitable remedies - rectification - common mistake - alleged common intention inconsistent with terms of written contract - vendors must show convincing proof of common intention - vendors rely on words spoken at auction - not shown that purchaser heard these words or by bidding intended to adopt them

CONTRACTS – Contracts Review Act 1980 – unjust contracts – loan contract – guarantee and mortgage security provided by defendants (parents of borrower) – purpose of the loan – adult son in financial difficulty – whether defendants/parents aware of that fact – alleged threats made to son to pay monies – whether there was a single or dual purpose of loan from plaintiff lender – whether loan to son for benefit of family business operated by company of which defendants sole directors and shareholders – whether defendants in position of “special disadvantage” – whether in particular the claimed indebtedness of adult son and alleged threats made to him constitute a position of “special disadvantage” – issues of credit over true purpose of loan central to issues of whether the contracts were “unjust” or unconscionable under general law principles - cross-claim by guarantor/mortgagors to avoid guarantee and mortgage under Contracts Review Act and for unconscionability dismissed - judgment that defendants pay plaintiff (lender) outstanding loan and for possession

CRIMINAL LAW - appeal against sentence - whether low quantity and purity of drug mitigates seriousness of offence - appeal dismissed

PROCEDURE – appeal from decision of Medical Tribunal – Medical Practice Act 1992 – s 90 – appeal restricted to point of law - PROCEDURAL FAIRNESS – Medical Practice Act 1992 – s 64(2) – failure to warn of intention not to re-register – penalty not sought by respondent – breach of procedural fairness - PROFESSIONAL CONDUCT – whether conduct deemed unsatisfactory professional conduct or professional misconduct – most appropriate forum to assess conduct – Lindsay v Health Care Complaints Commission [2005] NSWCA 356 – whether question should be remitted to Tribunal for determination

CONVEYANCING - breach of contract for sale and remedies - purported rescission by purchaser for conduct of vendor within Fair Trading Act 1987 - whether such rescission effective - whether such rescission repudiation - TRADE AND COMMERCE - Fair Trading Act - consumer protection - where vendor aware that land formerly used as a petrol station and may be contaminated - whether vendor guilty of misleading or deceptive conduct by not imparting this knowledge to purchaser - whether purchaser aware of former petrol station use and contamination potential - assessment of purchaser's reasonable expectations in light of surrounding circumstances - CONVEYANCING - breach of contract for sale and remedies - assessment of damages - where no resale by vendor within one year - vendor relies on valuation report as at date later than date of breach - report quantifies decline in value over previous year - report provides sound basis for estimating value at date of breach

EVIDENCE - claim for damages for misfeasance in public office and negligence - planning decision of Council - Plaintiffs call town planner as witness - town planner had advised and represented Plaintiffs during application to Council - town planner had advised and assisted Plaintiffs concerning claim for damages - whether town planner ought be allowed to give expert opinion evidence - claim that town planner lacked objectivity - whether evidence ought be excluded under s.135 Evidence Act 1995 - voir dire procedure - objection overruled

TORTS - negligence - sub-contractor in the position of an employee - scope of employer's duty - breach of duty - causation - Plaintiff injured by intentional act of unknown third person for whom employer responsible - failure to act on complaints by Plaintiff - whether employer's omission to act would have prevented or minimised the harm - s 5D Civil Liability Act - negligence not a necessary condition of the occurence of harm - whether inferences of causation available from breaches of duty.

PRACTICE & PROCEDURE - pleadings – application to amend statement of claim – where defendant received $3.9M in payments made by plaintiff's wife – where capacity and authority to do so in issue – whether defendant unjustly enriched by payments - whether reasonable cause of action disclosed – whether amendment futile – amendment allowed – COSTS – security for costs – where plaintiff sues by tutors residing outside the jurisdiction – no indication that recovery of costs will be compromised - application refused.

EQUITY - Fiduciary Obligations - two joint venturers provide contributions to third joint venturer for purchase of land by their joint venture company - third joint venturer causes another company that he controls to purchase the land - whether under first limb of Barnes v Addy two joint venturers entitled to declaration that land held on trust for them and any defendant who contributed in proportion to such contributions and order for an inquiry as to contributions

CONTRACT - whether the parties agreed to an express or implied term in respect of a fund to which each party contributed that it be redistributed if the business closed - TRUSTS - whether fund created for specific purpose - whether purpose failed - whether resulting trust

Denial of procedural fairness refusal to allow cross-examination: Procedures under CARS scheme prerogative relief under s 69 of Supreme Court Act 1970 use of DVD in place of written statement.

Common law - personal injury - construction site - liability - damages.

LEGAL ASSISTANCE – UCPR 7.36 – application for court appointed referral for legal assistance – application unsupported by evidence – plaintiff directed to provide affidavit in support of application – no affidavit provided – application refused.

DAMAGES - COSTS - recovery of costs - application for declaratory relief - personal injury damages excluded by s.3B, Civil Liability Act 2002 - STATUTORY INTERPRETATION - action for alleged assault, false imprisonment and unlawful arrest - intentional torts excluded - cost capping provisions did not apply - meaning of "personal injury damages" in s.337(1) Legal Profession Act "... the same meaning as in Part 2 of the Civil Liability Act 2002" - statutory interpretation of phrase not limited to definition section in Part 2 but meaning to be derived from companion provisions, including the excluding provisions in s.11A which refers to s.3B of the Civil Liability Act - not limited by fixed cost in s.338, Legal Profession Act 2004

PROCEDURE - miscellaneous procedural matters - procedure following deregistration of defendant corporation where defendant has cross claim - plaintiff applies to stand over proceedings generally - not desirable as finality is preferable - not possible for the Court to enter judgment against the dissolved corporate defendant - dismissal of cross claim not appropriate - pleading of cross claim not otherwise defective and no identified abuse of process - appropriate course is "do nothing except refrain from proceeding any further" - no need to stand proceeding over generally - proceedings already at an end - no order made

CORPORATIONS – merger and proposed float of plaintiff – defendant’s consent required and given for merger to proceed – plaintiff granted charge to defendant over plaintiff’s assets – failure of float and plaintiff’s business – receivers appointed to plaintiff – orders made for winding up of plaintiff and liquidator appointed – plaintiff incurred debts to defendant when plaintiff insolvent – debts remained unpaid at liquidation - CORPORATIONS – whether charge void under Corporations Law, s 267– charge not void – defendant not relevant person under s 267 – defendant not an officer of plaintiff – defendant did not make or participate in any decisions that affected the whole or substantial part of plaintiff’s business – defendant had capacity to affect significantly plaintiff’s financial standing but not involved in management of plaintiff’s business – defendant not associated with plaintiff – defendant not acting in concert with plaintiff in creation of charge – no trespass or conversion by receivers in taking possession of plaintiff’s assets and realising assets to pay debts - CORPORATIONS – whether payments made to defendant by plaintiff when insolvent were uncommercial transactions under Corporations Law, s 588FB – payments not uncommercial transactions – payments made for full consideration – defendant received benefits in good faith and without reasonable grounds to suspect plaintiff’s insolvency - CORPORATIONS – whether payments made to defendant by plaintiff when insolvent were unfair preferences under Corporations Law, s 588FE – whether payments by receiver to defendant to discharge debt were unfair preferences – whether defendant related entity of plaintiff – running account between plaintiff and defendant under s 588FA – payments not unfair preferences - CORPORATIONS – whether defendants contravened Corporations Law, s 588G due to plaintiff’s incurring debts when insolvent – determination of when plaintiff insolvent – determination of when defendants had reasonable grounds for suspecting plaintiff’s insolvency or when reasonable person in like position would have been aware of plaintiff’s insolvency - CORPORATIONS – whether s 588G applies to shadow directors – whether company can be a shadow director – defendants not plaintiff’s shadow directors – plaintiff did not establish that its directors were accustomed to act in accordance with defendants’ wishes or instructions – imposing conditions or terms in arm’s length commercial dealings or negotiations with which plaintiff felt obliged to comply not sufficient to make defendant shadow director – causal connection required between acts of directors and instructions or wishes of shadow director – whether plaintiff’s directors delegated their powers – no such delegation – directors collectively or governing majority in their exercise of powers of management must be accustomed to act on instructions or wishes of shadow director

MEDICAL NEGLIGENCE - duty of care - whether cosmetic surgery - primacy of patient autonomy in determining scope of duty - duty to warn - whether warnings given - whether plaintiff would have chosen to undergo surgery in any event - causation - limited physical disabilities - incapacitating psychiatric disability - assessment of damages

ADMINISTRATIVE LAW - claim for prerogative and declaratory relief arising from proceedings before CTTT - proceedings settle between active parties - CTTT files submitting appearance - Plaintiff seeks to proceed against CTTT only - Plaintiff asserts public interest in Court making declarations concerning CTTT procedures for assistance of future litigants before CTTT - Plaintiff attempting to obtain advisory opinion - abstract or hypothetical question - no utility in proceeding further - proceedings dismissed

NEGLIGENCE - medical negligence - general practitioner - failure to detect and diagnose cervical radiculopathy - Plaintiff goes on to develop myelopathy as a result of undiagnosed underlying pathology – underlying pathology not caused or able to be prevented by the Doctor - causation – whether if diagnosed in due time the Plaintiff would have avoided permanent injury - earlier treatment would have avoided some permanent disabilities - multiple causes of Plaintiff's disabilities - assessment of damages where multiple causes.

COSTS – UCPR 42.7 – interlocutory application – late amendment to pleadings – where costs occasioned or thrown away by reason of the amendment payable at conclusion of proceedings – whether court should order otherwise – whether stay pending payment should be ordered.

REAL PROPERTY - Caveats - application for extension of caveat - interest in land claimed pursuant to equitable charge or mortgage over land - no serious question to be tried that plaintiff entitled to charge or equitable mortgage over land - possible charge over proceeds of sale of land

PROCEDURE - inferior courts - New South Wales - District Court - removal into Supreme Court - PROCEDURE - miscellaneous procedural matters - declarations - appropriate form of relief: discretion of court - futility of declaration - ESTOPPEL - promissory estoppel - whether promissory estoppel can be pleaded as an equitable defence as well as an equitable claim - whether District Court has jurisdiction to deal with promissory estoppel as an equitable defence - PROCEDURE - whether proceedings should be transferred to the Supreme Court pursuant to Civil Procedure Act s 140 due to the absence of injunctive relief for promissory estoppel, having regard to various factors relating to the utility of the claim, the availability of other remedies and relief under the Fair Trading Act and other claims, and the availability of transfer to the Supreme Court (and re-transfer to the District Court) under Civil Procedure Act s 144

CRIMINAL LAW - Sentencing - offender convicted of murder and assault occasioning actual bodily harm - applicability of standard non-parole period - offender on parole at time of commission of offences

WILLS PROBATE AND ADMINISTRATION – application for grant of probate – testamentary capacity – where deceased made earlier will in different terms – where deceased made later will when suffering from dementia – onus remains with person propounding will – deceased lacked testamentary capacity when making later will – probate granted to earlier will

PROCEDURE - claim for damages for misfeasance in public office and negligence - claim arising from planning decision by Council - inadequate hearing estimate provided - proceedings not subject to long-case management processes - case management required before hearing resumes - utility of mediation