Cases and authorities

Criminal Practice and Procedure - Evidence - charge of murder - treating neuorsurgeon's opinions as to the degree of force required to inflict fatal injuries and the manner injuries were inflicted.

TORT — occupier’s liability — slip case — fall on stairs

Accounts. Taking of partnership accounts. Appropriate allowances for agistment of cattle on properties not owned by all the parties.

EQUITY – general principles – fiduciary obligations – scope and extent – conflict of interest and duty – fiduciary used power of attorney to sell property to himself – whether to set aside conveyance – obligation of plaintiff to do equity. - CONVEYANCING – s 37A of the Conveyancing Act – claim to declare conveyance void because of intent to defraud creditors – whether first respondent was a “person thereby prejudiced” – whether person with a claim for unliquidated damages in tort relating to development on another property of the second respondent pending in the District Court is a “creditor” under the section – whether first respondent has standing – distinction between determining standing and intention of defendant. - CONVEYANCING – s 37A of the Conveyancing Act – - intent to defraud creditors – whether dishonesty is necessary to find intent to defraud.

PROFESSIONS AND TRADES - lawyers - liens - whether the client should pay the solicitors professional and photocopying costs incurred after termination of the retainer - construction of retainer agreement - no express obligation in the retainer agreement that firm should be paid professional and photocopying costs incurred after termination

APPEAL - dismissed for want of prosecution - no question of principle.

PROCEDURE – Orders made pursuant to terms of settlement – Power of court to interpret those orders and to make specific orders giving effect to them.

MORTGAGES – registered proprietor of mortgaged property received less than half of funds advanced under loan secured by mortgage – mortgage originator forged loan documents at request of third party – claim by mortgagee against registered proprietor settled – registered proprietor and mortgagee seek judgment against mortgage originator pursuant to cross-claims

PROCEDURE - costs - general rule - costs follow the event - costs of appeal from order setting aside subpoena - plaintiff to bear the defendant's costs, as agreed or assessed

CORPORATIONS - winding up - applications for winding up by court - application by majority shareholder/director plaintiff that company be wound up - application opposed by other director - whether company should be wound up under s 233(1)(a) and/or s 463(1)(k) of the Corporations Act - held that, subject to parties being given final opportunity to convene meeting to address company’s future conduct, company should be wound up - orders stayed for a period to allow meeting to take place

PRACTICE AND PROCEDURE – Claim for damages by Owners’ Corporation against builders for defective construction - reference to referee of both liability and quantum – referee reports on liability and quantum – parties agree that reports on liability should be adopted – parties also agreed on quantum of damages in respect of some defects – application by plaintiff that report on quantum should be rejected and application by defendants that report on quantum should be adopted – where referee rejected entirety of plaintiff’s expert evidence on quantum and plaintiff accepts that even if admitted that evidence would not enable assessment of damages – application to lead quantum evidence of a different nature or admissible evidence of the same type rejected by the referee and for further hearing on damages in respect of defects where damages not agreed – relevant considerations – plaintiff’s application refused – referee’s report on quantum adopted – judgment for plaintiff in amount of damages agreed by parties.

CRIMINAL LAW – sentence after trial – manslaughter by criminal negligence – death by shooting – factors to be taken into account – circumstances of offence – circumstances of offender – juvenile offender – rehabilitation - no relevant criminal history - finding of special circumstances.

PROCEDURE - matter dismissed in default of appearance before Registrar - proceedings ready for hearing - no serious fault on part of plaintiff for non-appearance - proceedings restored to list

Criminal Law - Sentence - conviction for murder - jury rejects defence of substantial impairment - relevance of offender's mental state at time of killing - objective seriousness of offence less than mid range.

EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - discharge and breach - contract of employment between plaintiff employer and defendant employee subsisted but employment relationship did not - defendant failed to respond to a direction by the plaintiff to attend for work - plaintiff purported to terminate contract and claim debt under liquidated damages clause - whether plaintiff entitled to terminate for breach or repudiation - whether plaintiff’s conduct in previous proceedings had waived right to issue direction or rendered present proceedings an abuse of process - held that plaintiff entitled to terminate contract - plaintiff had not waived right and present proceedings not an abuse of process - CONTRACTS - general contractual principles - construction and interpretation of contracts - penalties and liquidated damages - liquidated damages calculated by multiplying half of average monthly brokerage by number of months remaining in contract with minimum fixed term - whether clause unenforceable as a penalty - whether a genuine pre-estimate of loss - whether out of all proportion to damage likely to be suffered - held that clause not a penalty - clause was a genuine pre-estimate of loss - not out of all proportion to damage likely to be suffered

CONTRACT - CONSTRUCTION – Meaning of “anniversary” in context of whole clause.

CONTRACTS – general contractual principles – whether loan facility renewed for further term – no formal offer and acceptance – lender’s conduct in administration of loan after date of maturity irreconcilable with proceedings commenced by it for possession of security property - CONTRACTS – general contractual principles – implied terms – whether term should be implied requiring lender to give borrower a reasonable opportunity to pay instalment after direct debit declined due to lender's error - CONTRACTS – general contractual principles – breach – whether borrower in default under loan contract because lender had entered wrong BSB number – last digit of BSB number not clear - CONTRACTS – general contractual principles – estoppel – waiver – whether lender estopped from asserting right to higher rate of interest because correspondence was sent to borrower which may have led borrower to believe that the loan facility had been renewed

EQUITY - Trusts and trustees – Money received by company as fruits of litigation - Funds held as to 50% for plaintiff – Whether intention was plaintiff had interest in funds as distinct from or additional to claim in debt. - EQUITY - Tracing – Trust funds paid to superannuation fund in which first defendant had interest and to company controlled by third defendant – Whether funds could be identified, whether tracing claim maintainable unless recipient joined as defendant. - EQUITY - Barnes v Addy – Knowing receipt – Whether notice of trust - Whether denial of agreement terms found in another court relevant to knowledge. - EQUITY - Mixed Funds – Trust moneys mixed with moneys of company – Whether particular payment from account of company to first defendant identified as trust funds – Whether first defendant liable on basis of knowing receipt. - EQUITY - Barnes v Addy – Knowing assistance – Whether acts of company trustee in making payments out of trust fund acts of company through its director or acts of director – Whether actions amounted to fraudulent design. - TORTS – Conversion and deceit – Whether claimed acts those of director as opposed to acts of company through its director – Whether false representation made in deceit claim. - TRADE PRACTICES ACT – Whether false representation made. - EVIDENCE – Estoppel – Anshun Estoppel – Whether judgment in Chief Industrial Magistrate’s Court prevented trust claim in Supreme Court – Whether reasonable not to bring debt and trust claims in Supreme Court. - EVIDENCE – Issue estoppel – Proceedings between plaintiff and company in Chief Industrial Magistrate’s Court found in favour of plaintiff on basis of moneys owing on breach of contract – Whether one of two directors estopped by judgment as privy of company. - EVIDENCE – Estoppel – Merger in judgment – Whether the action against privy of company defendant before Chief Industrial Magistrate prevented by doctrine of merger as a result of judgment against company in another court.

Procedure - costs - summons for prerogative relief - issue of permit by RTA for movement of oversize load - matter resolved without hearing - what costs orders appropriate in circumstances - adjustment of costs orders having regard to conduct of parties.

PROCEDURE - costs - recovery of costs - successful plaintiff recovers only 50% of her costs due to the premature commencment of proceedings

CRIMINAL LAW – appeal – appeal from directed acquittal ‘on any ground that involves a question of law alone’ – identifying ground of appeal – meaning of question of law and similar statutory formulations – statutory context – abrogation of double jeopardy principle – mixed question of law and fact not question of law alone – application of law to facts not question of law alone – Crimes (Appeal and Review) Act 2001, s 107 - CRIMINAL LAW – double jeopardy – abrogation of double jeopardy principle by s 107 of the Crimes (Appeal and Review) Act 2001 - CRIMINAL LAW – murder – manslaughter – actus reus – not necessary to establish precise act causing death - CRIMINAL LAW – appeal and new trial – powers of Court of Criminal Appeal – nature of discretion in quashing acquittal and directing new trial under s 107 – prosecutorial discretion – whether Court can limit new trial to manslaughter only, where original trial for murder – circumstances in which Court can limit new trial – Crimes (Appeal and Review) Act 2001, ss 101, 104, 107 – Criminal Appeal Act 1912, ss 6, 8 - STATUTORY INTERPRETATION – ‘on any ground that involves a question of law alone’ – ‘may order a new trial in such manner as the Court thinks fit’ – statutory context – abrogation of common law principle of double jeopardy - WORDS & PHRASES – ‘may’ – ‘question of law alone’

TRUSTS AND TRUSTEES – Superannuation trust – Entitlement to benefit – Rules requiring supporting reports from medical practitioners – Non-satisfaction of requirement and rejection of claim – Whether trustee has power to consider a further claim by the same member – What is the duty of the trustee when a further claim is made – Whether that duty was breached – Whether relief should be granted.

TORTS - negligence - road accident cases - compulsory third party insurance - definition and scope of “injury” in Motor Accidents Compensation Act 1999 - STATUTORY INTERPRETATION - acts of parliament - interpretation - Motor Accidents Compensation Act 1999 - meaning of “collision” and “injury” - involves causal and temporal criteria - WORDS AND PHRASES - “as a result of” - “caused during” - “collision” - “injury”

TORTS - false imprisonment- provision of false information leading to detention by police – police acting lawfully – whether informant caused or procured this arrest- whether informant was motivated by malice or was mistaken - TORTS - defamation – whether defence of qualified privilege available – whether conduct of publisher reasonable- if the occasions of publication were privileged, whether the imputations published were relevant to those occasions – made up story cannot be relevant to a privileged occasion - malice

DEED – delivery - whether a document (the Deed) was delivered as a deed – whether the appellant intended to execute the Deed as his deed – circumstances establish the appellant intended to execute the Deed as his deed - DEED – escrow – whether the appellant delivered the Deed in escrow – acknowledgement of indebtedness and undertaking to pay given unconditionally – whether the Deed may be construed to ascertain whether it was delivered, implicitly, in escrow – whether grantee of a deed may sue grantor even though grantee did not execute the deed and the deed contained cross-covenants- whether an agreement means that a deed has been delivered in escrow is to be determined by the express terms of the agreement - circumstances establish the Deed was not delivered in escrow - DEED – escrow - escrow conditions fulfilled – whether the appellant had revoked the Deed by making a counter-offer before the service of the statement of claim – not open to appellant to revoke the Deed – whether the Deed had expired before the conditions were fulfilled- mere lapse of time before execution of the Deed by the respondent did not allow appellant to renounce it - DEED – whether the Deed was illegal – respondent not licensed when performing book keeping services - whether the debts incurred illegally– Deed silent on the identity of bookmaker – nothing in Deed inconsistent with the services having been performed by a person whose claim had been assigned to the respondent

WORKERS' COMPENSATION – entitlement to compensation - injury in the course of employment or arising out of employment – injury occurring away from place of employment – injury occurring away from employee’s home –characterisation of overall period of work – circumstances of injury in context of identified overall period of work - WORKERS' COMPENSATION – appeal from Workers Compensation Commission – error in point of law – error apparent in expression of principle - failure to direct adequately to test in binding High Court authority - Workers Compensation Act 1987 (NSW) – s 4 - s 9 - WORDS AND PHRASES –“in the course of employment” – “arising out of employment”

WORKERS' COMPENSATION – entitlement to compensation – Workers Compensation Act 1987 (NSW) s 9A - whether employment a substantial contributing factor to injury – causation – substantial meaning real or of substance – nature of the work being performed - separate test to whether injury arising out of employment for Workers Compensation Act 1987 (NSW) s 9 - WORKERS' COMPENSATION – appeal from Workers Compensation Commission – error in point of law – misconstruction of statutory provision - Workers Compensation Act 1987 (NSW) – s 4 - s 9 - s 9A - WORDS AND PHRASES – “arising out of employment” - “substantial contributing factor” – “the time and place of the injury” – “the nature of the work performed and the particular tasks of that work”

COMPANIES - managed investment schemes - winding up - whether just and equitable - where responsible entity insolvent - whether to order winding up be paid for from funds held by responsible entity - scope of power to make directions about winding up - whether discretionary reasons not to make order sought.

PROCEDURE - Claim for funds to be paid out of court under Part 4 Trustee Act - who has entitlement of funds - elements to be proved by claimant - notice to be given to other potential claimants against funds in Court.

PRACTICE AND PROCEDURE - application for leave to amend plaintiff's pleadings - plaintiff had ongoing medical condition - defendant was operator of State hospital and had knowledge of plaintiff's medical history - no actual prejudice demonstrated - principled exercise of discretion to grant leave to amend

SUCCESSION – FAMILY PROVISION – Plaintiff cares for deceased, a minor, after he suffers severe brain injury – deceased receives large award of damages and dies, aged twelve years – whether Plaintiff “dependent upon” deceased – whether Plaintiff “eligible person” for purposes of Family Provision Act.

Serious sex offender - application for extended supervision order with conditions attached

PROCEDURE - miscellaneous procedural matters - issue of declaration of a caveatable interest in the subject property and issue of costs unresolved - adjourned until completion of ongoing District Court proceedings

EQUITY - trusts and trustees - action by executor - recovery of money transferred out of estate - whether there should be a stay on a judgment for funds transferred from the estate pending action against the estate by the transferee of those funds

ADMINISTRATIVE LAW – freedom of information – exempt document – legal advice to University – subject to legal professional privilege – document provided to third party with approval of Chancellor – whether waiver of privilege - APPEAL – leave to appeal – considerations – primary judgment upheld appeal from Tribunal in part and remitted for determination according to law – whether appeal available from order on ground rejected by primary judge – whether appeal from reasons, not orders - JUDGMENT – order remitting matter for consideration according to law – remittal on one ground only – appeal against failure to remit on another ground – different order sought in substance though not in form - JURISDICTION – Administrative Decisions Tribunal – power to exercise functions of original decision-maker – limited to those conferred by an enactment – decision to withhold exempt document on basis of legal professional privilege – privilege arising under general law – whether Tribunal possessed power to grant access despite exempt status of document – Freedom of Information Act 1989 (NSW), s 63

COSTS - party under disability appealing by tutor - tutor's liability for costs - whether costs order direction against tutor - whether tutor a "party" within UCP Rules r 42.3.

CRIMINAL LAW – appeal – back-up charge before Local Court – defendant unaware that back-up charge to be determined – denial of natural justice – magistrate not informed of understanding of the defendant – misunderstanding – denial of natural justice – conviction quashed

CRIMINAL LAW - accused charged by ex-officio indictment with murder of his wife - wife missing for a number of years and presumed dead - objection to admissibility of evidence Crown seeks to adduce from accused's 9 year old daughter, CV - evidence relates to her recollection of events of evening prior to her mother going missing - evidence in form of three interviews recorded with witness who is a "vulnerable person" by police - Crown seeks to adduce evidence in support of its case that the accused had a motive to kill his wife - witness subsequently subjected to two sessions of hypnosis at instigation of NSW Crime Commission - the existence of those sessions not disclosed to the parties until a subpoena issued to police just before trial - whether contents of first interview contaminated by introduction of extraneous material and the impact thereof upon subsequent interviews - whether appropriate procedures followed in relation to the decision to conduct hypnosis sessions for forensic purposes upon a young child and the manner in which the sessions themselves were conducted - expert evidence given by forensic psychiatrists - examination of authorities dealing with a witness subjected to hypnosis - whether the "original recollection" of the witness was preserved - whether highly unusual combination of circumstances warranted exclusion of evidence - consideration given to whether, in any event, evidence should be excluded pursuant to s 137 of the Evidence Act

APPEAL – powers of court – restitution – stay of primary judgment conditional upon part payment – judgment on appeal reduced to amount less than part payment – whether circumstances rendered repayment unjust - JUDGMENT – proceedings disposed of on appeal – application for order of restitution – whether appropriate for single judge to deal with application where variation of orders given on appeal sought – Supreme Court Act 1970 (NSW), s 46 - PROCEDURE – application for additional orders – orders appropriately sought in appeal – prejudice suffered by respondent – whether appropriate to limit interest on repayment

COSTS – initial order for costs of motion in court below – additional order for costs thrown away – appeal from additional order dismissed – substantive issue remitted for determination in court below – whether initial costs order to be set aside and costs to be determined on hearing of remitter - JUDGMENT – application to vary order – orders not entered – inconsistency between reasons and orders - JUDGMENT – application to vary order – typographical error – correction under slip rule

REAL PROPERTY - torrens title - caveats against dealings - sufficient evidence to show plaintiff may have an enforceable equitable charge over the subject property - caveat extended

Equity - Fiduciary obligations - When and to what extent may employees owe fiduciary obligations to employer - Circumstances in which fiduciary obligations may be regarded as ‘spent’ - Accessorial liability under second limb of rule in Barnes and Addy - Breaches of contract - Secret profits - Diverting business opportunities from former employer to competing business - Confidential information - Plaintiff law firm offering legal services and business consultancy in Kazakhstan brings proceedings against former employees for having furthered their own interests to their employers detriment by various means - Jurisdiction - Enquiry as to whether foreign law applies to determination of matters litigated - Principled approach to determining questions of foreign law - Proceedings involve consideration of several potentially applicable systems of law - Multiplicity and overlapping nature of issues require Court to consider the level of abstraction appropriate to address issues so as to discharge its ultimate mandate of doing justice between the parties - Fraud - Principles which inform the proper approach to whether or not particular conduct is proven to have been fraudulent - Conspiracy to defraud - Principles - Interference with contractual relations-Principles-Causation-Abuse of process - Defendants claim that proceedings amount to an abuse of process and required to be summarily dismissed-Consideration of what amounts to an abuse of process - Case management - Allegations of abuse of process intertwined with principal issues litigated - Efficiently dictates that both the plaintiffs pleaded case as well as the defendant's abuse of process case be litigated together - Causation - Remedies - Constructive trusts - Election - Split election - Nullus commodum capere potest de injuria sua propria - Overriding purpose rule - Achievement of a just, timely and cost-effective resolution of dispute has an effect upon the Court and upon other litigants - Commercial life depends on timely and just payment of money such that those who claim to be entitled to money should know, as soon as possible, whether they will be paid and those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay - Ethos of Commercial List to determine disputes speedily

Criminal Practice and Procedure - Evidence - charge of murder - previous representations of domestic violence not admitted.

COSTS – solicitor's lien – interlocutory proceedings over discovery – where plaintiff succeeds on discrete issue - where order made in favour of plaintiff for costs to be assessed and paid forthwith – where costs neither finally assessed nor paid – plaintiff ultimately unsuccessful in principal proceedings and ordered to pay defendants' costs – where solicitor claims lien over costs of interlocutory proceedings pursuant to order – where defendant asserts right to set off costs of interlocutory proceedings against costs of principal proceedings – factors relevant – declaration that solicitor entitled to lien

Criminal Law - Sentence - sexual assault of child under 10 - plea of guilty - Form 1 - whether matters on Form 1 appropriate - whether sentence excessive.

CRIMINAL LAW - application for leave to appeal against sentence - parity of sentence - weight to be given to difference between subjective case of applicant and co-offender

CRIMINAL LAW - appeal against sentence - supply of large commercial quantity of heroin - assessment of objective seriousness - parity between co-offenders - whether sentence manifestly excessive