Cases and authorities

CRIMINAL LAW – particular offences – property offences – robbery in company – CRIMINAL LAW – appeal against conviction – leave sought to appeal against sentence – application of R v King [2004] – alternative verdict of larceny available on the evidence – failure to leave alternative – appeal allowed – conviction quashed – new trial ordered

CRIMINAL LAW — whether “Murray” direction in relation to counts where there was no supporting evidence was misleading in relation to count where there was supporting evidence

CRIMINAL LAW - application for leave to appeal against sentence - dangerous driving causing death - momentary inattention - term of periodic detention - whether manifestly excessive

CRIMINAL LAW – appeal against sentence – proper approach to sentencing –whether principle of totality complied with – whether finding of special circumstances warranted – whether manifestly excessive - SENTENCE – relevant factors – antecedent criminal history – conditional liberty – offender in possession of lengthy record of prior criminal conduct – offences committed whilst on parole – whether relevant to assessment of objective seriousness of offences - WORDS & PHRASES – "conditional liberty" – "criminal record" – "objective seriousness" – "special circumstances" – "tinkering"

TRADE AND COMMERCE - misleading and deceptive conduct - effect of written contractual term inconsistent with oral assurances - whether reliance on assurances

BANKRUPTCY- appellant, who had been sued by bank, is made bankrupt after Court of Appeal reserves decision- consequences. RESTITUTION- recovery of moneys advanced by mistake- funds received by the appellant out of funds advanced to the fraudsters for accountancy fees- whether bank could recover them. TRADE PRACTICES- misleading and deceptive conduct- negligent conduct- fraud against bank- moneys advanced by bank to company under receivables finance facility- accountant's reports provided to bank- bank induced to lend because of various documents provided by the appellant, an accountant, relating to the finances of the company- appellant's responsibility for documents- bank's reliance on those documents- accountant liable to bank.

PROCEDURE – insurance – construction and effect of s.6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) – circumstances in which a plaintiff can proceed directly against insurer of party alleged to be liable to pay damages to the plaintiff – claims-made policy – coincidence of year of claim and completion of tort – claim for exclusion of liability for dishonesty – issue arguable and matter for trial judge

COSTS: - proceedings for damages for work related injury - proceedings dismissed - costs governed by Workplace Injury Management and Workers Compensation Act and Workers Compensation Regulation

AIR LAW – personal injury of passenger – proper defendant – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) - Montreal Convention No 4 – Guadalajara Convention – identity of contracting carrier – French parent company actual carrier – whether Australian subsidiary made an agreement for carriage as principal – Australian company liable as contracting carrier - ESTOPPEL – estoppel by representation – whether claims under Civil Aviation (Carriers’ Liability) Act are subject to the law of estoppel – contract formation governed by domestic law – estopped by representation from denying entry into agreement for carriage - Civil Aviation (Carriers’ Liability) Act 1959 (Cth)

COSTS – scope of indemnification for costs – liquidator's costs indemnified by unsuccessful party – whether indemnity included both legal costs and general expenses and remuneration – point at which indemnity to take effect – certain assumptions underlying indemnification – whether appropriate to make further clarificatory orders - EQUITY – trusts and trustees – liability for breach of trust – accessorial liability – conduct of director of trustee – failure to apply accounting conventions in calculation of trust's profits – reduction of trustee's accounts for unauthorised legal expenses –whether inferences of dishonesty and fraud available - PROCEDURE – judgments and orders – amending, varying and setting aside – primary judgment delivered – order directing parties to apply for Court to address further issues – submissions re-agitating issue settled at trial and on appeal – whether terms and purpose of order complied with - PROCEDURE – judgments and orders – formulation of final orders – order directing parties to file submissions on proposed resolution of issue – parties each holding loan accounts with trustee – declaration of balance of loan accounts – proceedings on foot for over ten years – further outstanding proceedings – whether public interest justifies final declaration of balances

CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - defendant contracted to prepare development application for subdivision of plaintiffs’ land - defendant agreed to keep confidential information obtained by her in providing commissioned services - defendant reported clearing activity on land to council - whether plaintiff breached confidentiality clause of contract - whether public interest in defendant’s disclosure to council - held that information disclosed to council not confidential and not within ambit of clause - public interest in disclosure not established - CONTRACTS - general contractual principles - construction and interpretation of contracts - implied terms - whether implied term that defendant, if she formed view that development application would not succeed, would disclose that view to plaintiffs - whether defendant breached implied term - held that no implied term and, in any event, had such a term been implied, no evidence of breach - EQUITY - general principles - fiduciary obligations - whether defendant owed fiduciary obligation to council - relationship not within recognised categories of fiduciary relationships - held that no fiduciary obligations existed - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - consumer protection - unconscionable conduct - whether defendant engaged in unconscionable conduct in breach of s 43 of the Fair Trading Act 1987 (NSW) by making disclosures to council - held that defendant did not engage in unconscionable conduct as pleaded - PROCEDURE - pleading - particulars - in earlier version of statement of claim, plaintiffs had pleaded as material facts of unconscionable conduct claim, the defendant's non-disclosure to plaintiffs of communications with council and continued receipt of fees thereafter - as a result of amendment, those facts no longer pleaded in final statement of claim, but appear in particulars - had those facts been pleaded, plaintiffs’ claim may have been established, subject to whatever evidence defendant might have adduced - defendant made clear that only responding to case as pleaded - consideration of role of particulars - held that plaintiffs not able to succeed on ground of non-disclosure as material facts not pleaded.

TRUSTS AND TRUSTEES - land held on trust for charitable purposes of hospital - proposal to enter project agreement and lease land for term greater than allowed by applicable statute - clear benefits to medical research and charitable purpose - benefit in participation exceeds value of ability to put land to alternative use during lease term

PROCEDURE - judgments and orders - amending, varying and setting aside - orders seeking leave to reinstate a defence and cross claim - whether default judgment be set aside on the basis of 'irregularity' under Rule 36.15 of the Uniform Civil Procedures Rules 2005 - no irregularity shown - whether orders sought available under Rule 36.16 - motion dismissed - costs

CONTRACT - car park - whether contract entered into - whether plaintiff entitled to liquidated damages for failure of vehicle owner to pay parking fee - TORT - whether claim in trespass available to car park operator - whether claim for aggravated damages available - failure to plead relief sought in originating process - INJUNCTION - whether damages and adequate remedy - whether grounds for injunctive relief established - COSTS - claim inappropriate for Supreme Court - exercise of costs discretion - CORPORATIONS - effect of corporation being deregistered on relief claimed.

Agreement between family members - consisted only of agreement to swap properties - did not also include other terms relating to leaving the parents' assets to son by will - agreement given effect to. - Allegation that parents contributed towards purchase price of property purchased by son and daughter-in-law - allegation is not made out - even if allegation had been made out, presumption of advancement not rebutted.

Practice and procedure - Strata Schemes Management Act 1996 - Consumer Trade and Tenancy Tribunal - Jurisdiction - Ex parte application to adjudicator for urgent orders restraining defendant from carrying out building works in breach of by-laws - Evidence that adjudicators orders being flouted by defendant - Whether Supreme Court has jurisdiction by interlocutory or other injunction to restrain continuance by defendant of its refusal to abide by the adjudicators orders - Interplay between Consumer Trade and Tenancy Tribunal and Strata Schemes Management Act 1996 - Interlocutory injunctions - Principles

[FINANCIAL SERVICES] - Statutory regime governing the provision of financial services - Requirements to hold Australian Financial Services licences - Provision of financial services through authorised representatives - [TRUSTS] - Whether investors intended the creation of a trust irrespective of whether the plaintiff remained an authorised representative of the defendants - [CONTRACT] - Whether contract between the plaintiff and the defendants included a term that the plaintiff was entitled to receive fees irrespective of whether she was an authorised representative of the defendants - [ESTOPPEL] - Whether defendants estopped from denying the plaintiff's entitlement to receipt of fees irrespective of whether she remained an authorised representative of the defendants - [MISLEADING OR DECEPTIVE CONDUCT] - Whether disclosure documents "defective" - Whether omission misleading or deceptive

SUCCESSION - wills, probate and administration – plaintiffs seek to enforce purported agreements that the deceased would transfer her interest in real property to them upon her death in return for the applicants looking after her – first alleged agreement not binding and in any event superseded by later agreement – construction of later agreement – agreement reflected real possibility of deceased changing her mind after making agreement and imposed no implied restriction on her doing so – adverse credit findings against plaintiffs – court considers critically agreements said to have been made with a deceased person – further term in second agreement that plaintiffs pay money to deceased found not to have been performed – plaintiffs’ claim rejected - SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for daughter – consideration of what is required for her proper maintenance and advancement in life – lump sum awarded

CRIMINAL LAW - appeal against sentence - maliciously inflicting grievous bodily harm in company - whether error in factual findings by sentencing judge - whether error in failure to apply 25 per cent discount for guilty plea - whether error in appointment of applicant's role in commission of offence - whether failure to give sufficient weight to subjective circumstances

CRIMINAL LAW – appeal – sentence – manifest excess – proper range of sentences – use of statistics – appeal refused

CRIMINAL LAW - appeal - conviction and sentence appeal - defective keel of a yacht causing the death of four people - criminal negligence manslaughter - whether the verdict of the majority of the jury was unreasonable - whether the Crown Prosecutor's final address caused a miscarriage of justice - whether the trial judge erred in respect of the directions to the jury on the "reasonable person" test - whether the trial judge erred in failing to direct the jury that they must be unanimous in respect of one or the other alternative ways in which the Crown put its case - appeal upheld - verdicts of acquittal directed

CRIMINAL LAW – appeal – discount for plea of guilty and assistance – onerous gaol conditions determinant of range – misapplication of principle by a sentencing judge – appeal granted – re-sentenced

CRIMINAL LAW - appeal - conviction appeal - defective indictment - failure to aver to the mental element of the offence - whether the defect was such as to render the indictment invalid - whether the defect has been cured by the jury verdict - whether the defect has been waived - whether the proviso should be applied - indictment not invalid - whether jury was misdirected by the trial judge - appeal against conviction dismissed - CRIMINAL LAW - appeal - sentence appeal - whether trial judge erred in his findings - little difference in criminality involved in an offence constituted by knowing falsehood as opposed to reckless disregard to the truth in this case - appeal against sentence dismissed

CRIMINAL LAW - application for leave to appeal against sentence - manslaughter (motor vehicle) - plea of guilty - vehicle deliberately driven towards deceased to scare him - discount for plea of guilty - assessment of objective gravity of offence - whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - multiple acts of indecency - larceny - break and enter with intent - all offences have a sexual element - whether sufficient discount allowed for guilty pleas - whether offence was aggravated by applicant being on bail - whether relationship between non-parole period and balance of term appropriate where no finding of special circumstances specified

REASONS - personal injuries claim - respondent trips over obstacle at night - action against licensee of hotel - whether primary judge gave adequate reasons for finding that the lighting was poor - whether primary judge erroneously inverted the burden of proof borne by the respondent.

CIVIL LAW - NEGLIGENCE - funds management - infant claim - brain damage - incapacity until age 25 years.

APPEAL - notice of contention - whether a costs agreement was reached between parties - appeal upheld - judgment set aside - matter remitted to the Local Court - costs

EQUITY - equitable remedies - injuntions - interlocutory injunctions - whether serious question to be tried. CONTRACT - implied terms - obligation of good faith - termination of contract.

CONTRACTS - general contractual principles - three oral agreements - offer and acceptance - agreement contemplating execution of written agreement - two agreements found - sale of property - no executed contract - substantial money advanced - acknowledgment of debt - termination of agreement - parties to contract - orders sought against non-party refused - breach of second agreement established - orders - third agreement not established - breach of contract - claims dismissed restitutio resulting from unenforceable, incomplete contract - recovery of money paid - order made - CONVERSION - intangible property - claims dismissed - TORT - assault - general principles - exemplary and aggravated damages - provocation - criminal proceedings - no order as to exemplary damages - order made - claim for assault and threats - claim dismissed - PROCEDURE - Supreme Court procedure - further amendment to claim - conversion - leave granted - RESTITUTION - recovery of money paid under duress or compulsion

Sentence - murder by stabbing - long crime history

PROCEDURE - Supreme Court procedure - New South Wales - motion seeking defence to be struck out and summary judgment for possession - bankruptcy - defence struck out - judgment for possesion - motion seeking orders to strike out cross claim - leave to amend cross claim - costs

ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - certiorari - reviewable decisions and conduct - medical assessment under Motor Accidents Compensation Act 1999 - decision maker asks herself the wrong question - whether answer might have been different if correct question asked - onus of proof - whether error of law is sufficient to obtain certiorari or whether jurisdictional error necessary - MAA Guidelines - whether consistent with Motor Accidents Compensation Act.

DEFAMATION - six imputations found by jury - defence of truth and contextual truth - whether contextual imputations were conveyed - justification at common law - verdict for defendant.

DEFAMATION – defences and damages hearing - review of restaurant Coco Roco – three imputations (a) that the plaintiffs sold some unpalatable food at the restaurant - (b) that the plaintiffs provided some bad service - (c) that the plaintiffs were incompetent as restaurant owners because they employed a chef at the restaurant who made poor quality food – Defamation Act 1974 – defences of fair comment, substantial truth and contextual truth – where restaurant promoted as "two restaurants in one" – whether reviewer could honestly have or express an opinion or say what was true about the restaurant Coco Roco after sampling the food at Coco but not at Roco – held that Coco Roco was one restaurant, not two - defence of fair comment established with respect to all three plaintiffs and all three imputations - defence of substantial truth partly established – defence of contextual truth not established – verdict for the defendants

PROCEDURE - judgments and orders - amending, varying and setting aside - setting aside the registration of a foreign judgment - whether there is a discretion to extend time to apply to have registration of judgment set aside - construction of s 6(5) of the Foreign Judgments Act 1991 (Cth) - application to extend time granted - registration set aside - costs

SUCCESSION - family provision and maintenance - principles upon which relief granted – application made by two adult sons for provision from mother’s estate – mother survived by husband of 40 years, to whom entire estate left under will – breakdown in relationship between father and sons - whether inadequate provision made for sons – if so, what provision ought to be made – whether property held jointly by mother with father prior to her death ought be designated notional estate – held that inadequate provision made – jointly held property designated notional estate – legacies ordered.

PROCEDURE - whether declaration should be granted - where the making of a declaration would have no utility - costs - where plaintiffs succeeded on one issue - whether the defendant had surrendered - general rule - costs follow the event

APPEAL - landlord and tenant - surrender of sublease - increase in operating expenses - notified after surrender - whether right to payment of those expenses had accrued before surrender of lease - sublease - construction - appeal dismissed

CRIMINAL LAW - appeal from the Local Court - contravention of s 12 of LEPRA - proper construction of s 11 of LEPRA - resist arrest - whether police officer empowered to request defendant to disclose identity - whether s 11 LEPRA abrogates the common law rights to silence - consideration of extrinsic material in interpretation of Acts and statutory rules

ADMINISTRATIVE LAW - administrative tribunals - - Administrative Decisions Tribunal (NSW) - appeal against the refusal of leave by an Appeal Panel - revocation of licences under Security Industry Act - confidential police intelligence - whether Commissioner of Police under a duty to disclose - whether Tribunal can disclose intelligence information - effect and operation of s 29(3) Security Industry Act 1997 on provisions in Administrative Decisions Tribunal Act 1997 - implied repeal. - ADMINISTRATIVE LAW - orders in the nature of mandamus - whether internal review procedures should have been followed - discretionary reasons to refuse order - futility of order.

Family Law - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - the Court should not be diverted from the clear words of the statute, which looks to past contributions actually made by the parties.

PROCEDURE - costs - where court determines on administrator's application that his remuneration fixed by two out of three resolutions of creditors should be reviewed by the court - company's application for order precluding increase in remuneration unsuccessful - review to be undertaken subsequently - whether costs of that determination should be costs in the cause or awarded to successful administrator

PRACTICE AND PROCEDURE - court-appointed receivers - interlocutory nature of appointment - court's power to terminate appointment and discharge receivers - where objective of receivership has been satisfied - unsatisfied claims and unresolved matters - CORPORATIONS - winding up on just and equitable ground - standing of court-appointed receivers to apply for winding up - where objectives for which company has been used have been satisfied

PROCEDURE - judgments and orders – stay of proceedings – hearing of motion to stay proceedings pending finalisation of similar proceedings in the Land and Environment Court of New South Wales- order that proceedings stayed pending finalisation of Land and Environment Court proceedings

EQUITY - resulting trust - where property purchased with money belonging solely to plaintiff but title taken by plaintiff and defendant jointly - no relationship etween the parties - whether plaintiff agreed to give defendant an interest in the property - held she did not - resulting trust for plaintiff of interest held by defendant - EQUITY - exoneration - where property found to be beneficially owned by plaintiff mortgaged to secure loan made to plaintiff and defendant - where loan moneys applied in part for plaintiff's sole benefit in part for defendant's sole benefit and in part for their joint benefit - plaintiff entitled to be indemnified by defendant for proportion of liability under mortgage

CRIMINAL LAW - sentence after trial - two counts of murder - murder of two flatmates - attacks upon victims using softball bat and knife - time gap between murders - whether life imprisonment appropriate for second murder - determinate sentence imposed