Cases and authorities

ESTOPPEL - Anshun estoppel - test is one of reasonableness - whether a matter should, not could, be raised - Anshun estoppel applicable where matter not raised as a defence raised as a cause of action - whether failure to apply for joinder and for matter to be transferred unreasonable - similarily of substance of claim per se not unreasonable. PRIVIES - whether control and ability of a company to litigate means it should have. PRIVIES OF INTEREST - relationship between estopped party and potential claimant - whether Anshun estoppel applicable to privies where director controls company - whether Champerslife claiming under or through another person - in any event that person not Anshun estopped.

Family Provision. Application by son. Substantial notional estate passed to widower and mother of plaintiff. Widow incapable and permantly in nursing home care and not able to live in her home. Legacy to son to assist in renting accommodation.

CORPORATIONS – company title – oppression – construction and breach of articles of association – meetings procedure – validity of resolutions – assessment of damages for breach of articles of association and oppression – whether leave should be granted to commence derivative suit – defendant company undertook extensive re-development of block of units – re-development opposed by plaintiffs who were company members – whether conduct of re-development, including the striking of levies and entering into loans to fund re-development, the selective buy-back of shares and a remuneration payment to director were capable of valid resolution and undertaken according to articles of association or amounted to oppression – HELD – re-development project constituted breach of articles of association – resolution to remunerate director invalid due to inadequate notice – decision to undertake re-development in particular manner not oppressive – unequal treatment of plaintiffs in respect of a special levy constituted oppression – leave granted to commence derivative suit for breach of statutory duties

DEFAMATION – assessment of damages – whether aggravated damages available – falsity of imputations – failure to apologise – persistence in defences of truth and contextual truth – defendants’ conduct of the trial – defendants’ conduct in editing the publication – whether loss of earnings available

LEGAL PROFESSION – Barristers – entitlement to fees – at general law – under statute – contracts for legal services – costs agreement – whether contract made between barrister and solicitor or lay client.

CONVEYANCING - "off-the-plan" purchase of home unit - where vendor represented that completed unit would have 180 degree water view - view obstructed by wall of premises as constructed - whether purchaser entitled to rescind under special condition concerning substantial departure from draft strata plan - whether purchaser entitled to rescind under rule in Flight v Booth - whether parties entered into oral agreement to rescind contract - CONTRACT - damages - liability of defaulting purchaser - property not re-sold by vendor - vendor particularises damage mainly by reference to reduction in value of property and interest payable by vendor on continued acquisition and construction finance - first head of damage not proved - second head of damage not claimable - no damage proved - CONVEYANCING - deposit forfeited to vendor - claim by purchaser for repayment of deposit - where vendor misrepresented availability of 180 degree water view - where vendor proves no damage - CONTRACT - Statute of Frauds - oral contract for rescission of contract for sale of land - whether writing required

COMMON LAW - personal injury - inmate of correctional institution attacked by another inmate - no breach of duty of care by prison authority.

PROCEDURE – Court of Appeal – directions – preparation of matter for hearing – service of notice of constitutional issue

BUILDING CONTRACT - breach by builder - work not in conformity with plans & specifications - waterproofing system - whether system installed as effective as that specified - query whether issue one of mitigation with onus on builder. - BUILDING CONTRACT - breach by builder - whether demolition and reinstatement to produce compliance with contract reasonable - whether damages recoverable on that basis. - HOME BUILDING INSURANCE - breach of statutory implied warranties by builder – insurance - successor in title entitled to benefit of warranties and insurance - measure of damages - successor entitled to same damages as predecessor.

APPEAL – civil – procedure – restraint of proceedings – powers of Court – whether single judge of appeal possesses power to restrain proceedings in District Court – Supreme Court Act 1970 (NSW), s 46

CORPORATIONS – STATUTORY DEMAND – COSTS – Statutory Demand withdrawn after Originating Process filed – who should bear costs – both parties acted reasonably in attempting to resolve dispute.

PRACTICE AND PROCEDURE - draft statement of claim - claim by disabled plaintiff against previous solicitors and trustee company - motions to strike out parts of draft statement of claim - objections as to form - rolled up pleadings and failure to differentiate conduct of each defendant - objections as to form substantially made out - whether causes of action disclosed against trustee company - whether fiduciary relationship existed between plaintiff and trustee company before trust established - whether undue influence exerted by trustee company and whether duty of care by trustee company existed before trust created - application of General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 - MOTION FOR SECURITY FOR COSTS - plaintiff impecunious but beneficiary under discretionary trust - applicable principles - application refused.

PRACTICE AND PROCEDURE- subpoenas and notices to produce – material relating to third parties - setting aside - relevance - confidentiality

TORRENS SYSTEM – indefeasibility of title – one joint proprietor forges the signature of the other to a mortgage – mortgage is registered – mortgage refers to a loan agreement to which the joint proprietor’s signature was also forged – whether mortgage on its proper construction secures a debt – whether mortgagee entitled to possession against innocent joint proprietor – whether mortgagee entitled to a remedy against the perpetrator of the forgery

CONTRACT – Formation – Reasonable commercial endeavours. - TRADE PRACTICES ACT – Misleading and deceptive conduct – Extended negotiation for sale of Retirement Village business began September 2007 – Contracts drafted and two exchanged on 19 December 2007 for sale of Allocated Places – complex continuing negotiations and dealings involving – Heads of Agreement stating when agreements would become binding – Modifications in detail of proposed contracts and parties – Contemplated extended sequence of entry into agreements to accommodate Vendors’ concept of effects on their CGT position – Applications to Commonwealth Department of Health and Ageing for administrative approvals for transfer – Obligation of purchaser of Allocated Places to use reasonable commercial endeavours to bring about fulfilment of conditions precedent which would require decisions of others to commit capital – DOHA approvals available on 23 June 2008 but conditions precedent not fulfilled – Detailed consideration of complex facts led to findings that there was no breach of contract and no misleading or deceptive conduct – Claims dismissed deposit refunded – Decision on facts.

Practice and procedure - Application for orders by way of judgment on admissions under UCPR rule 17.7 and/or seeking summary judgment under rule 13.1 - Applications for judicial advice - Power in Court to grant judgment upon admissions discretionary - Court not bound to act upon admissions - Remedy of declaration of right ordinarily granted as final relief in a proceeding - Costs - Indemnity costs - Delinquency emanating from defendants conduct

TRUSTS – trust not a registered managed investment scheme under Corporations Act – trust deed incorporated by reference Corporations Act, Part 2G.4 – trust deed allowed trustee to voluntarily retire and appoint new trustee – trust deed empowered unitholders to direct trustee to retire on unanimous resolution – trustee also a unitholder and appointed custodian to hold units – validity of unitholder’s requisition for meeting – resolutions purported to remove trustee and appoint new trustee – unitholders had no power to remove trustee as distinct from directing trustee to retire – trustee ceases to hold office when delivers deed of retirement not on unitholders’ direction to retire – inappropriate resolution does not render requisition invalid – trustee to amend resolution to conform to direction to retire – meeting requisition invalid because not made by registered unitholder – trustee not estopped from disputing validity of resolution – trustee not required to convene meeting pursuant to invalid requisition – trustee not entitled to vote by virtue of Corporations Act, s 253E incorporated into trust deed – trustee’s custodian prohibited from voting by s253E because associate of trustee and s16(1)(a) does not apply – resolution to direct trustee to retire need be passed unanimously only by vote of unitholders attending and entitled to vote – unitholders have no power to appoint new trustee – trustee entitled to appoint new trustee if directed to retired

FAMILY LAW AND CHILD WELFARE - de facto relationships - plaintiff seeks adjustment of property interests under s 20 of Property (Relationships) Act 1984 (NSW) for family home - relationship of 23 months - prerequisite for making order under s 17(1) not met - whether the court may make an order under s 17(2) - plaintiff has made substantial contributions of the kind referred to in s 20 - plaintiff had complete responsibility for the financial stability of herself and the defendant - plaintiff would not be adequately compensated for her contributions if a s 20 order were not made - defendant ordered to transfer his interest and title in the family home to the plaintiff on the condition the plaintiff discharges the mortgage on the property

FAMILY PROVISION AND MAINTENANCE - claim by adult son - application for further provision out of estate - substantial estate - where testamentary trust provided for discretionary payment to plaintiff - where plaintiff had health problems preventing him from employment - where plaintiff's expenses exceeded net income - where plaintiff in debt - whether provision made for plaintiff in will inadequate - what provision should be made - no question of principle.

CRIMINAL LAW - murder – judge alone trial - special hearing - accused not guilty by reason mental illness

DEFAMATION – preliminary discovery – UCPR 5.3 – plaintiff former constable of police - where plaintiff anticipates that she will be unfavourably portrayed in an upcoming television drama series Underbelly: The Golden Mile to be screened nationally – whether publication of defamatory matter has occurred – whether it appears to the court that the plaintiff may be entitled to make a claim for relief – whether plaintiff unable to obtain sufficient information to decide whether or not to commence proceedings – whether interlocutory injunction would be granted to restrain the broadcast in any event – EVIDENCE – admissibility – tender of transcript of evidence given by the plaintiff at Wood Royal Commission – Royal Commissions Act 1923 s 17 – privilege against self-incrimination – whether privilege waived by formulation of imputations referring to the evidence given in the Royal Commission – whether evidence relevant – whether evidence prejudicial etc – s135 Evidence Act 1995 – discretion to exclude – summons dismissed.

SUCCESSION - family provision - claim by adult son of Deceased's first marriage - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - asserted needs of Plaintiff - competiting claims of much younger daughters of Deceased's second marriage, who are sole beneficiaries under his will - constitution of proceedings - beneficiaries are appropriate Defendants where Plaintiff is also executor - whether costs of Defendants beneficiaries should be capped, where to do so would reward unsuccessful Plaintiff by limiting amount of costs which could be recovered from him.

APPEAL - Practice and procedure - Question of law - Cross claim in Local Court for damages and loss of rent - Finding by Magistrate that plaintiff statute barred from cause of action and that defendant did not breach statutory duty - Whether Magistrate erred in not finding for plaintiff

MENTAL HEALTH – community treatment order – depot anti-psychotic by IMI - appeal from decision of Mental Health Review Tribunal – nature of appeal – hearing de novo – whether plaintiff likely to relapse into active mental illness order not granted – where plaintiff likely to become non-compliant and relapse if no order made, but likely to comply with alternative less restrictive order - whether no other care of less restrictive kind consistent with safe and effective care is appropriate and reasonably available, and that plaintiff would benefit from order as least restrictive alternative consistent with safe and effective care – where less restrictive alternative appropriate and reasonably available and consistent with safe and effective care though perhaps not optimal

COMMON LAW - joint tortfeasors - liability to contribute to settlement.

PROCEDURE - costs - security for costs - company with no assets or liabilities - company formed for the purpose of the venture in respect of which Defendants are sued - company not alleged to be worse off as a result of acts of Defendants - allegation that Defendants deprived the Plaintiff of making profits - undertaking by person standing behind the Plaintiff - no stultification if security for costs ordered - security ordered in stages.

Substituted Service not bringing proceedings to notice of 1st Defendant, G - dispensing with service on G who no longer had effective interest in proceedings - application under s 37A Conveyancing Act - dispositions to defeat creditors - G holds property under qualified title - devise to G of modest suburban house subject to right of residence of deceased's wife - G seeks to borrow money and co-opts assistance of brother (J) - G liable for damages for assault of plaintiff - G has other creditors - G had intent to defeat creditors - inferred J probably realised G had a number of creditors, needed a substantial sum and mortgages granted would adversely effect creditors of G - J becomes a borrower and later purchases property from G - assessment of value of G's interest subject to conditions - use of Australian Bureau of Statistics life expectancy tables for females

CORPORATIONS – STATUTORY DEMAND – whether genuine off-setting claim – no particulars of claim.

CORPORATIONS – STATUTORY DEMAND – Whether genuine dispute – whether off-setting claim.

CRIMINAL LAW - conviction appeal - charge of maliciously inflict grievous bodily harm contrary to s 35(1)(b) Crimes Act 1900 – whether trial judge erred in his directions on malice - whether jury properly or adequately directed as to concept of recklessness – where failure by defence counsel to seek redirection - rule 4 of Criminal Appeal Rules – leave to appeal refused - appeal dismissed

APPEAL – criminal – sentence – denial of procedural fairness – remittal necessary where fact-finding miscarried – remittal to sentencing court differently constituted – Criminal Appeal Act 1912 (NSW), ss 6(3), 12(2) - CRIMINAL LAW – sentencing – factors affecting sentence – malicious infliction of grievous bodily harm – moral culpability of offender – relevance of nature of relationship with victim – Crimes Act 1900 (NSW), s 27 - EVIDENCE – weight and sufficiency of evidence – uncontradicted evidence – whether rejection constitutes denial of procedural fairness - WORDS & PHRASES – "moral culpability"

CRIMINAL LAW - application for leave to appeal against sentence - aggravated attempted break and enter with intent - aggravated break, enter and steal - pleas of guilty - whether sufficient weight given to finding of special circumstances because of accumulation of sentences and applicant's mental illness - disparity with sentence passed on co-offender - whether applicant had justifiable sense of grievance

CRIMINAL LAW – appeal against sentence – assault and contravention of prohibition or restriction in an order – whether trial judge denied the applicant procedural fairness - whether trial judge erred in his consideration of applicant's remorse – whether trial judge erred in failing to find special circumstances – whether sentence is manifestly excessive – no error found - leave to appeal granted but appeal dismissed.

CRIMINAL LAW - Sentence - aggravated sexual assault - whether error in taking into account aggravating factor that offence caused substantial harm - parity of sentencing

EQUITY - rectification - whether leases fail to reflect common intention of parties - non-inclusion of option to renew - EQUITY - equity does nothing in vain - whether rectification by inclusion of option to renew should be decreed when time for exercise of option has passed - whether past acts of lessee amounted to exercise

PRACTICE AND PROCEDURE - interlocutory orders - application by person identified in Statement of Claim for non-publication order and pseudonym order - alleged sexual offences committed by juvenile - consent of defendant to orders - non-publication order not opposed by plaintiff - whether principles of open justice unduly compromised by pseudonym order - early stage of proceedings - potential application of Children (Criminal Proceedings) Act 1987 - desirability of other witnesses coming forward - non-publication order and pseudonym order justified in particular circumstances of this case

CRIMINAL LAW - Sentencing - offences of murder and wounding with intent to inflict grievous bodily harm - offences committed in company - pleas of guilty - young offender with minor record for dishonesty

LIMITATION PERIOD – second application for extension of the limitation period – alleged medical negligence – first application previously dismissed – whether primary Judge erred in finding actual prejudice if extension granted – whether primary Judge erred in finding no inconsistency between the second respondent’s evidence in the first and second applications - PRACTICE AND PROCEDURE – whether second application for an extension of the limitation period should be entertained

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - costs thrown away by adjournment of trial when amended defence filed at commencement of trial

COSTS - application for costs of interlocutory hearing in related proceedings - application for interest on costs

PROCEDURE - COSTS - APPLICATION for extension of time for assessment of costs - Prescribed limitation period - No discretionary power under Legal Profession Act 1987

CRIMINAL LAW - Sentence - whether offender punishable for unforeseen results of offence - whether sentence manifestly excessive - whether Court should interfere to correct disparity

CRIMINAL LAW - Conviction appeal - Money Laundering - EVIDENCE - whether telephone conversations between persons not charged with offence hearsay - whether evidence should have been excluded under s 137 of Evidence Act - SUMMING UP - whether directions as to use to be made of telephone calls adequate - PRACTICE AND PROCEDURE - whether Crown's address to jury prejudicial - SUMMING UP - whether Judge erred in directions given concerning Crown's address - whether directions on character adequate - PRACTICE AND PROCEDURE - whether misconduct bu jury caused miscarriage of justice - juror playing word game in court room

CROWN LANDS – alienation – lease or licence of Public Reserve – requirement for Minister’s consent – other statutory preconditions – no valid lease or licence without compliance with statute. - ESTOPPEL – no estoppel against statute – statute dealing with alienation of Public Reserve – estoppel could not create lease or licence contrary to statute.

CORPORATIONS – STATUTORY DEMAND – inherent serious defects.

REAL PROPERTY - Torrens title - application for review of Registrar General's 2001 decision removing a right of way from the folio of the register for servient tenement and for review of 2008 decision not to restore the right of way and for relief under Real Property Act ss 12, 122, 136 & 138 - construction of terms of right of way - whether the Registrar General can be ordered to alter the register to restore a right of way under s 138(3) Real Property Act - not proceedings to which s 138 applies - correction of an error by Registrar General would not be authorised under either s 136 (1) or 12 (1) (d) Real Property Act - s 136 only applies to restricted case of wrongful retention of instruments - not established Registrar General made an 'error' as defined in s 12 (1) (d) - application under s 122 for review of Registrar General's decision fails - only available where Registrar General refuses to perform a duty and where action otherwise available to Registrar General - no statutory basis to interfere with the Registrar General's 2001 decision or 2008 decision - summons dismissed

TORTS - negligence - patron injured when ceiling of hotel collapsed - content of duty owed by structural engineer - significance of his retainer - breach of duty - whether collapse of ceiling reasonably foreseeable - causation - whether factual causation established - liability of owner of hotel - breach of duty - failing to adequately respond to complaints and failing to properly brief structural engineer - causation - section 5D Civil Liability Act 2002 - whether factual causation established - whether breach materially contributed to harm which occurred.

LIMITATION OF ACTIONS - limitation of particular actions - actions to recover money recoverable by virtue of an enactment - claim for compensation under Real Property Act 1900 s 129(1) - accrual of cause of action under Limitation Act 1969 s 14(1)(d) - extension or postponement of limitation periods - mistake under Limitation Act 1969 s 56(1) - where defendant mistakenly removed caveat from Register - REAL PROPERTY - Torrens Title - caveats against dealings - who may lodge and what interest sufficient - registered proprietor consenting to caveat - where caveat provided for transfer of land to plaintiffs contingent on an event which had not occurred and might never occur

CRIMINAL LAW - verdict - judge alone trial - murder - circumstantial evidence case - accused not guilty by reason of mental illness