Cases and authorities

EVIDENCE - client legal privilege - whether privilege in brief to counsel lost - where substance of counsel's advice disclosed - whether access to brief "reasonably necessary" to understanding of advice

PROCEDURE – application that proceedings be dismissed - whether in relation to proceedings generally a reasonable cause of action disclosed – whether plaintiff failed to prosecute proceedings with all due despatch – PLEADINGS - whether reasonable cause of action disclosed – whether there is a tendency to cause prejudice, embarrassment or delay – PROFESSIONAL NEGLIGENCE – where plaintiff does not comply with UCPR 31.36(1) – whether proceedings should be dismissed

CRIMINAL LAW - sentence - stealing from the person - suspended sentence of imprisonment and bond in 2006 - applicant breaches bond by commission of further offences - suspended sentence of imprisonment commences in 2008 - applicant seeks extension of time for leave to appeal against 2006 sentence - relevant factors on application for extension of time - merits of application considered - extension of time refused - leave to appeal against 2008 sentence refused

PROCEDURE - SUMMARY DISMISSAL PROCEEDINGS – claim based on contractual indemnity provision in Deed between the parties to a commercial venture – indemnity by defendant in favour of first plaintiff in respect of any liability that the lessee (first plaintiff) may have to pay income tax on the amount of any fit-out contribution paid by the lessor (the defendant) to the lessee in connection with a lease – additional provision that lessor cease to have any liability to indemnify on the third anniversary of the date of the Deed – questions of construction – competing interpretations – consideration of interaction between the two clauses in question – construction on indemnity as a commercial contract may require evidence as to surrounding circumstances known to the parties at the time of the Deed – not amenable to summary dismissal order – additional claim by second plaintiff for management fees – establishment of the contract alleged – the nature of any contract is a matter for evidence and, accordingly, a question of fact for determination at a final hearing – relevant principles determining the nature and scope of evidence required in relation to the contract claim – not amenable to summary dismissal – orders

CORPORATIONS - deregistered corporation - reinstatement of registration - "person aggrieved" - genuine grievance - whether the court is satisfied that it is just the registration be reinstated - effect of reinstatement - prejudice caused by delay - limitation period - strength of case

CORPORATIONS - security for costs - quantum - reasonable assessment

PROCEDURE - costs - appeal as to costs - unsuccessful claim by real estate agent for commission against vendor - purchaser joined as Cross-Defendant - Cross-Defendant takes over defence of Defendant prior to hearing - order made by Magistrate that Plaintiff pay Cross-Defendant's costs - order varied to require Plaintiff to pay Defendant's and Cross-Defendant's costs. APPEAL AND NEW TRIAL - leave to appeal required - what must be shown for leave to be granted.

CRIMINAL LAW - indictment charging murder and attempted murder - trial by judge alone - defence of mental illness - background evidence - psychiatric opinion - verdict in accordance with psychiatric evidence.

EXPERT DETERMINATION - principles concerning adoption of expert determination - errors - inconsistencies - failure to give reasons - failure to address issues

PARTNERSHIP – partners – power of a partner to bind the partnership – determining the “business of the kind carried on by the firm” for the purpose of s 5 Partnership Act 1892 – whether “business of the kind carried on by the firm” is necessarily the business actually carried on by the partnership – meaning of “the usual way” in which the business is carried on – whether a judge can inform themselves using “common sense” of the business ordinarily carried on by a type of partnership firm – role of judicial notice in deciding this - PARTNERSHIP – partners – power of a partner to bind the partnership – ostensible authority – whether the ostensible authority of a partner is limited to what is necessary to carry on the partnership business – distinction between what is necessary to carry out a particular task and what is necessary to carry out the business of the partnership - PARTNERSHIP – partners – relevance of registration under Business Names Act 1962 to proof of identity of partners – difference between statutory facilitation of proof of identity of partners under Business Names Act 1962 and Business Names Act 2002 - APPEAL AND NEW TRIAL – appeal – general principles – interference with Judge’s findings of fact – limitations on an appellate court’s ability to assess the evidence – limitations extending beyond the trial Judge’s assessments of demeanour – advantages of a trial judge in weighing the account of a witness against contemporaneous documents - CONTRACTS – general contractual principles – parties – identification of parties – whether an objective bystander would conclude that a party to the contract was purporting to act on behalf of the partnership - CONTRACTS – general contractual principles – formation – whether a party can be held to an improbable promise where another party believes that the fulfilment of the promise was possible – whether such a contract can exist - EVIDENCE – witnesses – failure to call – inferences to be drawn – whether a Jones v Dunkel inference is open on the facts – no requirement for the trial judge to draw an adverse inference

Criminal Law - Serious sex offender - Application for extended supervision order - Requirements of s 9(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) - standard of proof - meaning of "likely" - Expert Evidence - whether prediction of further offending can be made to the degree of probablities - whether order should be made - what conditions should be made as to residence of defendant.

CORPORATIONS – administration – application by administrators for declaration that their appointment as administrators by secured creditor was valid – administrators have not discharged onus on them to prove that the company owed a debt to secured creditor – not established that ‘Default Event’ occurred entitling secured creditor to make the appointment – declaratory relief refused - administration brought to an end

CONTRACTS – Construction – obligation to use “all reasonable endeavours” to transfer shares and contractual rights to defendant – where shares subject to pre-emptive rights of other shareholders – whether “best endeavours” require invocation of pre-emptive procedure – where both parties accept that consent of existing shareholders would not have been forthcoming – whether plaintiff has thus taken “all reasonable endeavours” – Held: obligations not discharged as future events may make it possible to affect transfer – where contract requires plaintiff to deal with contractual rights for benefit of defendant – whether dependant upon potential for ultimate transfer – Held: independent obligation unless and until transfer effected – REMEDIES – Declarations – Negative declaration – where plaintiff seeks declaration that defendants are precluded from bringing action against plaintiff for breach of provisions in deed because of limitations provisions contained in deed – where claims that may be brought have not been precisely articulated and may never be brought – Held: inappropriate to make declaration

PROCEDURE - miscellaneous procedural matters - other matters - leave to appeal and appeal from Judicial Registrar of the District Court - where Judicial Registrar granted motions to dismiss the plaintiff's case under UCPR r 31.36 - service and content of experts' reports in professional negligence claims - whether plaintiff complied with r 31.36 - delays in serving expert's reports - requirement that expert's report "support" plaintiff's case - omission of Judicial Registrar to refer expressly to the prejudice that the plaintiff would suffer were motions to dismiss granted. - PROCEDURE - miscellaneous procedural matters - other matters - motion to adduce further evidence on application for leave to appeal - additional expert's reports - where additional reports supplement and clarify earlier report - where earlier report generated misunderstanding.

COURTS AND JUDICIAL SYSTEM - dispute between experts - duty of trial judge to determine whether one expert should be preferred and to make appropriate findings - where trial judge resolved differences between experts by accepting the opinion that accorded with the account of facts given by lay witnesses - fact finding - where trial judge relied upon credibility and demeanor of lay witnesses - whether trial judge failed to have proper regard to certain pieces of objective evidence - whether findings of fact involved a failure to use, or a misuse of the advantage of the trial judge.

PROCEDURE - non-publication order varied - no issue of principle

BUILDING AND CONSTRUCTION - Home Building Act 1989 - insurance - defective work - successor in title - whether two companies "related" within the meaning of clause 42 of the Home Building Regulation 1997 - whether policy of insurance consistent with Act - where policy excluded liability for defects reasonably visible at the time the successor in title acquired the property - whether successor in title sustains "loss" when acquiring a building with defects that are reasonably visible at the time of acquisition - whether loss includes consequential loss - Home Building Act 1989 ss 18B , 18D, 18E, 99(b) - Home Building Regulation 1997 cl 42(2), 43(1) - Corporations Law s 50. - CAUSATION - general principles - intervening act - whether successor in title who acquires a building in full knowledge of its defects suffers loss from the existence of those defects. - STATUTORY INTERPRETATION - acts of parliament - interpretation - use of subsequent amending act as an aid to interpretation.

SERIOUS SEX OFFENDER - application for extended supervision order - preliminary hearing - application for order for examination by psychiatrists - application for interim supervision order pending final hearing

REAL PROPERTY - torrens title - caveats against dealings - removal of caveat - trial imminent - caveat a potential obstacle to the defendant raising funds for her legal representation - balance of convenience

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand dismissed - company seeks short extension of period for compliance to consider possibility of appeal

CRIMINAL LAW- particular offences – murder – attempted murder - offender pleaded guilty to three counts murder and one count attempted murder – sentence – domestic killing – husband murdered wife – grandfather murdered his two young grandchildren – father attempted to murder daughter – whether worst case category – whether life sentence warranted – offences remain unexplained – whether objective criminality tempered by absence of certain features – comparison with other cases unhelpful – offender’s extreme culpability not mitigated by any subjective circumstances of the offender – life sentences imposed

CONTRACTS - agreement for introduction of merger/acquisition opportunities in the financial servies sector - entitlement to fee dependent on introduced opportunity being taken up - CONTRACTS - implied terms - whether real estate agency cases as to "effective cause" implied term relevant to financial services sector agreement - TRADE AND COMMERCE - licensing of business agents - Property, Stock and Business Agents Acts 1941 and 2002 - transitional provisions - whether agent suing for a service performed as a business agent

CONTRACTS – general contractual principles – offer and acceptance – whether deceased contracted to leave estate to plaintiffs in exchange for provision of hospitality and personal services – whether objectively ascertainable intention legally to be bound – whether consideration sufficient – whether offer accepted – held that no contract existed – no objectively ascertainable intention legally to be bound - ESTOPPEL – proprietary estoppel – whether deceased’s executors estopped from denying plaintiffs’ interest in estate – held that deceased had made assurances that he would leave estate to one or more of the plaintiffs – assurances not understood to be irrevocable and not relied upon as such – held no significant detriment suffered – not unconscionable for deceased to act contrary to assurances made.

PROCEDURE - costs - security for costs - Plaintiff is a foreign national residing in China - claim against former solicitors regarding settlement of motor vehicle proceedings - limited evidence of Plaintiff's financial position - no asserted link between Plaintiff's financial position and Defendants' acts and omissions - potential for stultification of the proceedings if order for security made - security ordered in stages - UCPR Part 42.21(1)(a).

EVIDENCE – admissibility - plaintiffs seek direction to allow them to tender a schedule as a summary of other documents under s 50 of the Evidence Act 1995 (NSW) – Court refuses to make direction as schedule is not a summary and defendants have not had a reasonable opportunity to examine the documents which are sought to be tendered to support it – plaintiffs seek to tender voluminous documents – application refused as defendants would be prejudiced by late tender

ESTOPPEL – issue estoppel – whether order for dismissal of earlier proceedings precluded defendant raising similar issues in later proceedings for defamation – relevance of forensic context in which order made – general principles considered

CORPORATIONS – application to set aside statutory demand – where plaintiff sought to discontinue proceedings by filing notice of discontinuance – effect of Corporations Act, s 459L – court required to dismiss application

PROCEDURE – plaintiff claiming damages for personal injury – plaintiff made applications to Centrelink for assistance at various times – defendant seeks access to documents held by Centrelink concerning the plaintiff – s 207 of the Social Security (Administration) Act 1999 prevents production of documents to defendant directly – whether material relevant – whether plaintiff amenable to an in personam order to provide an authority to the defendant directed to Centrelink – s 56 of the Civil Procedure Act 2005 - whether order should be made having regard to the overriding purpose – plaintiff ordered to provide authority to the defendant

PROCEDURE – Appeal to District Court from CTTT – Whether jurisdiction of District Court extends to judicial review under the Consumer, Trader and Tenancy Tribunal Act 2001, s 65.

EQUITY - equitable remedies - injunctions - change of circumstances - injunction no longer required - dissolution of injunction

MEDICINE - medical practitioners - refusal of medical treatment - unconscious patient - advance care directive stating patient's desire to refuse certain treatments - whether directive was a valid indication of patient's desire - capacity - whether patient had capacity to decide to refuse treatment when directive made - patient's right of self-determination even where withdrawal of treatment would have life threatening consequences. - PRACTICE - approach to be taken by medical practitioners - application to court - desirable where uncertainty exists regarding capacity or intention of unconscious patient.

Practice and procedure - Pleading issue - Application to strike out misrepresentation defence and unclean hands defence - Misrepresentation is not by and of itself a defence but in certain circumstances may give rise to a cause of action - Explanation of futility of pleading seeking to raise a misrepresentation defence - Consideration of the history of the unclean hands maxim - To say that a man must come into a Court of Equity with clean hands does not mean a general depravity - There must have been an immediate and necessary relation to the Equity sued for-It must be a depravity in a legal as well as in a moral sense-Discussion of the principles which inform the defence of unclean hands

EVIDENCE - admissibility and relevancy - exceptions to the hearsay rule - s 63 exception where maker of representation in a document is "not available to give evidence" - meaning of "available" - meaning of "attendance" - where person resident in a foreign country - whether availability of procedures under the Evidence on Commission Act is relevant to these questions - EVIDENCE - admissibility and relevancy - exceptions to the hearsay rule - s 81 exception for previous representation reasonably necessary to an understanding of an admission where the representation made "at the time the admission was made, or shortly before or after that time" - meaning of "shortly after" - WORDS AND PHRASES - "attendance" - "shortly after"

COSTS – Civil Procedure Act 2005, s 98(4)(c) – specified gross sum costs order – where defendants successful and uncontroversially entitled to orders for costs of the proceedings – where plaintiffs are impecunious and unlikely to satisfy any costs order – where costs of assessment, estimated to be in the order of $350,000 also unlikely to be recouped – whether defendants entitled to a specified gross sum costs order where plaintiffs contest it and where judicial determination of quantum of costs unlikely to approach the level of detailed inquiry of a costs assessment by a costs assessor – where determination must be judicial – whether Court in a position to make anything more than a "next best guess" – whether opportunity to make a just determination – where evidence in support of the application overwhelming and uncontested – plaintiffs ordered to pay specified gross sum instead of assessed costs

Criminal Law - Appeal against conviction and sentence - Grounds that defence counsel incompetent, witnesses fabricated evidence, verdict unreasonable - Sentence - whether judge erred in determining role in importation - whether sentence excessive.

CRIMINAL LAW - appeal against conviction - dishonestly damage property by means of fire - circumstantial Crown case - whether jury verdict unreasonable or cannot be supported having regard to the evidence - appeal dismissed

PROCEDURE - costs - whether costs of appeal to be on indemnity basis - relevance of first instance pre-judgment offers not renewed in relation to the appeal - PROCEDURE - payment of judgment entered on appeal where additional claim remitted to primary judge for assessment

APPEAL – new trial – whether the trial judge failed to resolve evidence concerning the pleaded agreement - CONTRACTS – partly written and partly oral – principles for determining whether a contract is wholly written, partly written and partly oral, or wholly oral – role of surrounding circumstances – admissibility of evidence of subsequent conduct – scope of operation of the parol evidence rule to partly written and partly oral contracts - CONTRACTS – general contractual principles – construction and interpretation of contracts – whether surrounding circumstances can be looked to without needing to find ambiguity – present state of High Court authority on whether ambiguity is a precondition to using surrounding circumstances - INTERPRETATION – construction of undertakings and court orders – admissibility of evidence of surrounding circumstances - EVIDENCE – whether evidence not cross-examined upon must be accepted by the judge or jury – circumstances when a judge can reject evidence not cross-examined - EQUITY – equitable remedies – specific performance – part performance – part performance to be pleaded in reply

CORPORATIONS – administration – creditor’s meeting – application to extend convening period for second meeting of creditors by further three months after two earlier extensions – in creditors’ interests to extend the period as sought – application granted

EQUITY – trusts and trustees – vesting orders – written declaration of trust – whether requisite intention existed at time of declaration – equitable defences – laches and delay – general principles considered REAL PROPERTY – Crown land – week-end leases – whether declaration of trust an illegal dealing under Crown Lands Consolidation Act 1913 LIMITATION OF ACTIONS – trusts and trustees – trustee’s executrix refuses to transfer trust property to beneficiary’s executrix – whether plaintiff statute barred – when claim for a vesting order arises – rule in Saunders v Vautier considered STATUTORY INTERPRETATION –Trustee Act 1925 – whether laches available as a defence to a claim for a vesting order under s 71 Trustee Act 1925 – principles considered CROSS-CLAIM – equity – powers and duties of trustee – trustee seeks indemnity out of trust estate for payment of expenses – whether expenses related to conduct of the trust or trust affairs – question turns on its on facts – no general principles considered

APPEALS – jurisdiction – interlocutory order – non-publication order impacting upon applicant – whether attracts appellate jurisdiction – Criminal Appeal Act 1912 (NSW), s 5F - CRIMINAL PROCEDURE – non-publication order – factors relevant to sentencing proceedings – confidential information relating to accused – tension between principle of open justice and other public interests – whether statutory basis for non-publication – whether prejudice sufficient to justify non-publication - PRACTICE & PROCEDURE – formal publication of orders – non-publication order – no formal publication of order staying operation of non-publication order – whether staying order to be inferred – uncertainty as to continued operation of non-publication order - WORDS & PHRASES – "non-publication order" – "open justice" – "proper administration of justice" – "JusticeLink"

PRACTICE & PROCEDURE – non-publication order – appeal against refusal of non-publication order dismissed – foreshadowed application for special leave to appeal – stay of orders dismissing appeal

Application to set aside statutory demand under s 459J Corporations Act 2001 (Cth) – omission of required warning constituted defect in the demand – no injustice caused by defect – failure of all joint creditors to sign the demand did not constitute a defect – application dismissed

CRIMINAL LAW - jurisdiction, practice and procedure - verdict - judge alone trial - murder - accused not guilty by reason of mental illness

ADMINISTRATIVE LAW – certiorari – error of law determinative of result – failure to apply regulatory scheme – denial of natural justice – Transport Appeal Boards - EMPLOYMENT LAW – grounds relied upon by Tribunal did not amount to misconduct and were not a valid basis for dismissal – termination for breach of contract could be effected for conduct that is repudiatory or in breach of an essential term or a sufficiently serious breach of an intermediate term.

LIMITATION OF ACTIONS - postponement of the bar - extension of period - claim for damages for physical and psychiatric injuries sustained at State run homes 1970 to 1974 - Plaintiff claims repressed memories did not return until recently - when Plaintiff became aware of matters for purposes of s 60I Limitation Act 1969 - whether just and reasonable to extend the limitation period pursuant to s 60G - many witnesses dead or unable to give evidence - multiple causes for Plaintiff's psychiatric injuries - periods of unexplained delays since recovery of memories.

Leave to proceed against company in liquidation refused - no question of principle

EQUITY – Resulting trust – Presumption of advancement – Contract for purchase of property in son’s name – Father pays deposit and stamp duty – Agreement that transfer be to father and son as joint tenants – Whether father intended to make gifts – Whether father’s interest held on trust for son.

LAND AND ENVIRONMENT - development application - Environmental Planning and Assessment Act 1979, s 79C - requirement to take development control plan into consideration - whether decision maker entitled to reject general policy embodied in portion of plan - ADMINISTRATIVE LAW - statutory requirement to take development control plan into consideration in determining development application - whether decision maker entitled to reject general policy embodied in portion of plan

APPEAL – leave to appeal – "holding appeal" originally filed – extension of time required to file application for leave– no explanation or justification for subsequent delay – whether prejudice caused by delay – whether application for leave reasonable arguable - LIMITATION OF ACTIONS – action for damages arising from personal injury – date when cause of action is discoverable – anticipated requirement of ongoing surgery and medical attention – impairment of earning capacity – receipt of advice from solicitors – whether plaintiff knew or ought to have known that injury was sufficiently serious to justify the bringing of an action – Limitation Act 1969 (NSW) s 50C(1), s 50D - WORDS AND PHRASES – "discoverable" – "sufficiently serious to justify the bringing of an action"