Cases and authorities

TORTS - negligence - water over road - motor vehicle aquaplaning - breach of duty - failure to keep a proper lookout and driving at an excessive speed in the circumstances - liability of RTA - positioning of warning signs - whether failure to exercise reasonable care - application of s 43A Civil Liability Act 2002 - application of s 44 Civil Liability Act 2002 - causation - responsibility of road authority for constructing culverts and maintaining table drains on side of road - nature of duty owed - whether breach of duty established - application of s 45 Civil Liability Act 2002 - budgetary constraints and competing priorities of a statutory authority - distinction between policy and operational decision - s 42 Civil Liability Act 2002 - causation - nature of duty owed by landowners to users of public highway adjoining land - public nuisance - whether fault necessary - knowledge of landowners of nuisance before storm event - relevance of user of agricultural land before and at time of storm event - negligence of landowners - nature of duty owed by landowners to users of adjoining highway - whether breach of duty established - whether causation established.

CRIMINAL LAW - sentence - money laundering - attempt to conceal large proceeds of fraud - attempt to corrupt bank official - treatment of prior record of driving offences - whether sentence manifestly excessive - whether error in not finding special circumstances

APPEAL - nature of appeal indicated by whether first instance decision best characterised as an exercise of ‘discretion’ or ‘judgment’ - ex parte nature indicates first instance determination should be treated in the same way as an inference from facts - principles in Warren v Coombes applicable - CRIMINAL LAW - procedure - confiscation of proceeds of crime and related matters - restraining or freezing order - evidence and procedure - requirements of affidavit under s 10 Criminal Assets Recovery Act 1990 - CRIMINAL LAW - procedure - confiscation of proceeds of crime and related matters - restraining or freezing order - evidence and procedure - police officer issuing charge not sufficient to establish reasonable grounds for suspicion under s 10 Criminal Assets Recovery Act 1990 - EVIDENCE - admissibility and relevancy - hearsay - interlocutory proceedings - need not identify the ultimate source of the statement - WORDS AND PHRASES - “reasonable grounds for suspicion”.

FAMILY LAW AND CHILD WELFARE – De Facto Relations – Adjustment of property interests – Evaluation of contributorions – Need for articulation of how the contributions make an adjustment just and equitable.

APPEAL - duty to give reasons - person subject to Order entitled to know more than that primary judge “had regard to” certain matters - CRIMINAL LAW - procedure - confiscation of proceeds of crime and related matters - restraining or freezing order - evidence and procedure - requirements of affidavit under s 10 Criminal Assets Recovery Act 1990 - CRIMINAL LAW - procedure - confiscation of proceeds of crime and related matters - restraining or freezing order - evidence and procedure - police officer issuing charge not sufficient to establish reasonable grounds for suspicion under s 10 Criminal Assets Recovery Act 1990 - WORDS AND PHRASES - “reasonable grounds for suspicion”.

CRIMINAL ASSETS – proceeds of crime – examination order not yet made –discretionary decision whether to grant examination order – discretionary decision to give notice requiring examination – offence under Act to refuse to answer question in examination –statutory abrogation of privilege against self-incrimination – immunity from use of answers in evidence – whether stay of proceedings justified in order to protect a fundamental right – Proceeds of Crime Act 2002 (Cth), s 180 - CRIMINAL ASSETS – proceeds of crime – forfeiture order not yet made – resistance to order only by way of application for exclusion order – exclusion order requires reasonable opportunity for examination – potential for self-incrimination – whether stay of proceedings justified – Proceeds of Crime Act 2002 (Cth), s 49 - EVIDENCE – privilege against self-incrimination – ongoing criminal investigation – no charges laid nor anticipated – confiscation of proceeds of crime sought – potential for orders for personal examination in relation to affairs and forfeiture of property subject of restraining order – whether privilege abrogated - HUMAN RIGHTS – right to silence – privilege against self-incrimination - STATUTORY INTERPRETATION – proceeds of crime – purposive construction – whether clear statutory intention to override privilege against self-incrimination – Proceeds of Crime Act 2002 (Cth)

Family Provision. Claim by a daughter who was left half of the deceased's real estate. Other half left to her brother who did not put forward his financial circumstances. Extension of time. Time extended and order for plaintiff to receive whole of the estate. No matter of principle.

Committal proceedings - application for attendance of witnesses for cross-examination - Whether adequate reasons provided by Magistrate for declining application - relevance of Basha enquiry

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis –defendants made an offer to the plaintiff under r 20.26 of the UCPR, to which r 42.15(2)(b)(i) applied, which the plaintiff rejected – whether the Court should exercise its discretion not to award the defendants indemnity costs as contemplated by r 42.15(2) – plaintiff argued that such discretion should be exercised because the plaintiff’s non-acceptance of the offer was “not plainly unreasonable” – held that this was not sufficient to displace the presumption that indemnity costs should be awarded under r 42.15 of the UCPR as exceptional circumstances are required to do this, and no such circumstances arose in this case

PRACTICE AND PROCEDURE - motion to dismiss proceedings - no reasonable cause of action disclosed - declaratory relief sought - suspended medical practitioner seeking advisory opinion

CRIMINAL LAW - appeal - appeal against conviction - sexual assault - particular grounds of appeal - misdirection and non-direction - direction where accused disadvantaged by delay in complaint - whether Longman warning adequate - requirements of Longman warning - whether a warning required in terms - whether particular words required - INTERPRETATION - amendment to s 294 Criminal Procedure Act - transitional provisions - transitional provisions not to apply to proceedings commenced before the commencement of the amendments - when proceedings commence - WORDS & PHRASES - "proceedings" - "caution" - "warning" - "in terms"

TORTS - negligence - contributory negligence – defendant failed to establish the defence of contributory negligence

PRACTICE & PROCEDURE - criminal appeal - appeal by Director of Public Prosecutions against sentence - adjournment sought to allow for consideration of Constitutional challenge - Crimes (Appeal and Review) Act 2001 (NSW), s 68A

ADMINISTRATIVE LAW- Administrative tribunals- Consumer, Trader and Tenancy Tribunal ("CTTT")- jurisdiction of courts and CTTT- s 22(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act")- limited jurisdiction of courts where same "issue" to be heard in CTTT- whether respondent's claim of overcharging in CTTT is the same "issue" as claim in the District Court under the Building and Construction Industry Security of Payment Act 1999 ("SOPA"). CONTRACTS- building, engineering and related contracts- remuneration- jurisdiction of courts and CTTT- whether respondent's claim in CTTT is the same "issue" as claim in the District Court- s 22(3) of the CTTT Act. CONTRACTS- building, engineering and related contracts- remuneration- interpretation and application of s 7(2)(b) of the SOPA- whether right of a contractor to proceed under s 15(2)(a)(i) to obtain summary judgment for the amount claimed abrogated- whether corporation can contract for "residential building work" as defined in s 7(2)(b) of the SOPA- whether corporation can reside. WORDS & PHRASES- "Issue" in s 22(3) of the CTTT Act.

COSTS - indemnity costs – no question of principle. - COSTS – Sanderson Order - no question of principle. - COSTS - interest on costs prior to assessment - Civil Proceedings Act section 101(4) - no evidence of amounts and dates of payment - costs assessor unable to award interest - order made.

FAMILY AND CHILD WELFARE - Parens patriae- Scope of power - where 15 year old child has extensive history or serious self-harming, violent and anti-social behaviour - where experts strongly support preventative confinement of child in secure accomodation to facilitate treatment plan - where Director- General seeks order authorising indefinite involuntary detention of child in secure accomodation unit - whether such order may be made in parens patriae jurisdictiuon - relevance of child's human rights under Convention on Rights of the Child.

CRIMINAL LAW - serious sex offender - preliminary hearing - application for interim detention order or interim supervision order pending final hearing - prior breach of extended supervision order

CORPORATIONS - liquidators' claims under s 588FF(1) - whether transactions uncommercial under s 588FB(1) - whether transactions entered into in good faith - whether defences under s 588FG(2) proved - whether discretion to decline order under s 588FF - whether allowance should be made for amount invested in the company - consideration of general principles of construction and application of statutory provisions - Corporations Act 2001 (Cth) s 9 'transaction', s 588FB(1), s 588FC, s 588FE(3), s 588FF(1), s 588FG(2)

CORPORATIONS – STATUTORY DEMAND – Meaning of “defect” – whether genuine dispute demonstrated.

PROCEDURE – review of decisions of single judges of appeal – three applications made and refused for a stay of writ of possession of family home – whether error shown in each refusal to grant stay

APPEAL – when appeal lies – scope limited to appeal from decision of Tribunal in point of law – challenge to finding of duty of care – whether evidence to support finding – nature of error – significance of "illogicality" in reasoning or "perversity" in fact-finding - TORTS – negligence – duty of care – pleural mesothelioma contracted after exposure to crocidolite asbestos as young child – two periods of exposure of between three and seven days each – exposure due to destruction of cement sheets containing asbestos mined no earlier than September 1965 – possibility of link between "transitory" or "minimal" exposure documented in 1962 – miner of asbestos aware of medical knowledge – whether knowledge of miner of risks posed by asbestos gave rise to duty of care - WORDS AND PHRASES – "blue asbestos" – "transitory exposure"

EQUITY - general principles - undue influence and duress - deceased transferred home to defendant for consideration of one dollar - defendant the daughter and primary carer for deceased - whether relationship between deceased and defendant gave rise to presumption of undue influence - whether presumption rebutted - held that relationship gave rise to presumption of undue influence - presumption not rebutted - SUCCESSION - family provision and maintenance - deceased left will and codicil giving lifetime occupation right and residue of estate to one of eight adult children - claims for provision made by remaining seven children - whether inadequate provision made for some or all plaintiffs - held that inadequate provision made for three of plaintiffs - relief granted

Determination of Liquidator's remuneration - disposition of monies in controlled monies account consequent upon settlement of sale of trust property - company acting as trustee - landholding company

CONTRACTS – Construction – Sale of coal mining project – Agreement that parties use reasonable endeavours to novate for benefit of purchaser rights in relation to a coal loading facility – Whether “reasonable endeavours” included taking steps to implement pre-emption provisions – Agreement that capacity at the coal loading facility be made available – Whether that agreement merely subsidiary to the agreement concerning novation.

COSTS – indemnity costs – whether indemnity costs for the trial ought to be ordered for a “walk away” offer made in the middle of a trial – date from which indemnity costs should be ordered when defendant had not had a chance to examine certain evidence at time the offer was made – indemnity costs on appeal when there was a failure to make a fresh offer or renew previous offer of compromise on appeal – PROCEDURE – variation of order following entry of judgment – statutory authority to reopen entered orders – time limits on variation

PROCEDURE - security for costs of appeal - first appellant ordinarily resident outside New South Wales - Rule 42.21, Uniform Civil Procedure Rules 2005 - whether a "plaintiff" the subject of the Rule includes an appellant who was not a plaintiff in the court below

TORTS – negligence – motor vehicle accident – collision between child pedestrian and motor vehicle in front of school bus – driver driving at statutory speed limit – whether driver negligent - TORTS – negligence – motor vehicle accident – causation – whether speed at which motor vehicle travelling necessary condition of occurrence of the harm – s 5D, Civil Liability Act 2002 (NSW) - TORTS – negligence – motor vehicle accident – contributory negligence – appellate review

CONTRACT - franchise agreements - whether franchise agreements were terminated or expired - negotiations between the parties and continued operation of franchise businesses - whether estoppel by convention made out - whether option to purchase such assets of the franchise businesses as franchisor selects was validly exercised - whether franchisor could validly exercise lease assignment - whether inconsistent terms of franchise agreement could be harmonised - whether lease assignment clause should be read down so as to apply only upon termination - RESTRAINT OF TRADE - identification of franchisor's interests - common law - construction of franchise agreements - interest in goodwill - confidential information - whether restraints more than required to protect franchisor's interests - directors' restraints - whether confidential information required to be delivered up

COSTS - consideration of exceptions in probate litigation to general principle that costs follow the event - whether the deceased could be said to have been the "cause" of the litigation where testamentary capacity was in issue - whether there was such an overlap between the issue of testamentary intention and the issue as to testamentary nature of the documents to give rise to conclusion that second of exceptions in Shorter v Hodges ought not to apply - costs orders made as noted above

GUARANTEE AND INDEMNITY - the contract of guarantee - original lease, sub lease and variation of lease contained guarantee covenants - whether defendants guaranteed performance of lessee’s obligations under lease, as varied, and sub-lease - whether failure to register leases fatal to lessor’s claim - whether failure of some defendants to sign documents would discharge other defendants from liability - held that defendants not liable as guarantors - lease, as varied, did not provide for guarantee by five defendants - applying Chan v Cresdon, guarantee obligation only extended to registered lease - failure of intended co-guarantors to sign documents would be effective to discharge other defendants from liability - ESTOPPEL - general principles - whether certain defendants estopped from denying obligation to guarantee performance of lessee’s obligations - whether representation made and relied upon giving rise to equitable estoppel - whether common assumption between lessor and defendants, giving rise to estoppel by convention - held that defendants not estopped from denying guarantee obligation - representation not made by relevant defendants - no sufficiently clear, unequivocal and unambiguous common assumption to give rise to estoppel by convention

CORPORATIONS - Supervision, Regulation and Correction - loan facility agreement and deed of charge securing loans to company by some shareholders when other shareholders refused to make further contributions to company costs - other loans by shareholders unsecured - sale of assets of company to new company in which non-contributing shareholders have no interest - secured loans discharged by proceeds of sale - company an empty shell with no capacity to discharge loans of non-contributing shareholders - whether oppressive prejudicial or unfairly discriminatory within Corporations Act 2001 (Cth), s 232(e) - whether company should be wound up under s 233(1)(a) - whether new company should be ordered to transfer assets back for no consideration under s 233(1)(j) and loan accounts restored to pre-transaction position with liquidator to raise proofs of debt for additional proven expenditure - cross-claim for breach of contract, negligent representation and misleading conduct under Fair Trading Act 1987, s 68(1)

CRIMINAL LAW - sentence - murder - intend to inflict grievous bodily harm - severe beating with a large wrench - offender intoxicated and believed deceased was a paedophile - offence just below mid-range seriousness

INSURANCE – accident and sickness insurance – claim for total and permanent disablement benefit – only issue remaining is recoverability of interest pursuant to s 57 Insurance Contracts Act 1984 (Cth) and costs – whether or not insurer ought to have deferred determination of claim which it subsequently paid – whether or not insurer was of the opinion or ought reasonably have been of the opinion that plaintiff met the total and permanent disablement definition at an earlier time - PROCEDURE – costs – general rule costs follow the event – cap imposed on costs recoverable

Sentencing - accessory after the fact to murder - Form 1 offence of affray - dispute as to nature and extent of role - plea of guilty

SUCCESSION - family provision - very small estate - intestacy -claim by adult foster son - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claims of persons entitled to share estate upon intestacy - proceedings out of time - factors warranting making of application - inevitable that house property must be sold, if only to meet costs of proceedings.

TORTS - negligence- dangerous premises- rental property- failure of appellant landlord to take reasonable steps to fix/replace missing balcony struts- respondent tenant fell from balcony suffering personal injury- negligent act was the missing struts not a slip and fall case. - TORTS - negligence- general matters- causation- factual findings- conflicting evidence as to whether respondent left balcony intentionally- whether trial judge erred in rejecting particular evidence and finding that respondent fell. - TORTS - negligence- general matters- causation- whether findings sufficient to establish causation where no evidence as to how or why the respondent was directed through the gap left by missing struts.

COSTS - power to fix cap. - FAMILY PROVISION - claim by de facto widow – need for secure independent accommodation – Crisp order for flexible life estate - question to be litigated at trial - unconditional provision made for widow.

TORTS - negligence - duty of care in utterance - defendant plaintiff's financial adviser - advice volunteered -duty of care existed. - MISREPRESENTATION - need not the sole cause of plaintiff's change of position - liability not excluded by other contributing causes. - MISREPRESENTATION – when representation continues.

PROCEDURE - application by defendants for summary disposal - no basis for such order shown - observations on correct approach to originating process under Supreme Court (Corporations) Rules 1999

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act – whether valid payment claim – whether payment claim sought to reagitate issues decided in earlier adjudication determination – whether issue estoppel arises from adjudication determination – whether payment claim sought to reagitate issues raised in previous payment claim – whether statutory right to payment enlivened – whether issue estoppel arises from statutory right – whether abuse of process – whether adjudicator can determine claims for lost profit or cost of re-pricing or interest – whether issues appropriate to be determined by an adjudicator.

CRIMINAL LAW - murder - judge alone trial - defence of mental illness - murder of elderly couple - chronic paranoid schizophrenia

EQUITY – Joint Venture – Fiduciary relationships – Proceeds of joint venture used to pay purchase price of property purchased by one joint venturer and his wife – Whether other joint venturers could claim that property held as a joint venture asset. - ESTOPPEL – Other proceedings determined in which the purchase moneys treated in the joint venture accounts as a drawing by one joint venturer recognised as such in the partnership accounts – Whether plaintiffs estopped from making proprietary claim – Whether if both claims for debt and proprietary interest made plaintiffs would have to elect for one and the other would merge in judgment with one elected – Whether addition of additional party as defendant who was not a party to accounts proceedings bore on the estoppel.

SECURITY FOR COSTS – resident outside jurisdiction – impecunious – inability to work because of injury – effect to stifle proceedings – conditional costs agreement with success payment not, on the facts, undertaking litigation for a commercial profit – order refused - PRIVILEGE – communication with third parties for the purpose of settling proceedings – s 131 Evidence Act 1995 – not applicable to costs agreement

Children and Young Persons (Care and Protection) Act - decisions of the Children's Court - appeal provisions to District Court not exhausted - application made in the Supreme Court for orders in the nature of certiorari - application refused.

CRIMINAL LAW - appeal against conviction and sentence - whether Crown Prosecutor's final address implicitly asked the jury to accept the complainant's evidence because the accused had not established a motive for her to tell lies - whether Crown Prosecutor's final address or cross examination implicitly invited the jury to discount the accused's evidence because of his interest in securing his acquittal

APPEAL – application for leave to appeal – proposed appeal from dismissal of motion to set aside consent judgment – motion heard by trial judge – rejection of applicant’s evidence not subject of cross-examination – no express credibility finding - PROCEDURE – challenge to consent judgment – allegation of duress or unde influence in relation to settlement agreement – whether proper procedure required separate proceeding – whether notice of motion appropriate

DAMAGES – future economic loss – challenge to adequacy of damages – assessment flowing from motor vehicle accident – psychological injuries sustained – psychological treatment prescribed – whether treatment likely to be undertaken – likely effect of treatment upon future earning capacity – Motor Accidents Compensation Act 1999 (NSW), s 126 - WORDS AND PHRASES – "future economic loss"

APPEAL – application for leave – proposed appeal from summary dismissal – whether inadequate pleading properly construed - TORTS – intentional tort – misfeasance on part of police officer – breach of statutory duty – duty of care in investigation and prosecuting offence

COSTS – indemnity costs – offer of compromise – valid offer made by respondent prior to trial – indemnity costs awarded by trial judge – offer extended again by respondent prior to appeal – respondent successful on appeal – whether costs incurred following pre-trial offer payable on indemnity basis – Uniform Civil Procedure Rules 2005 (NSW), r 51.49