Cases and authorities

PROCEDURE – application for stay of judgment pending determination of appeal – application granted upon conditions

COSTS - proceedings for breach of injunction - settled on undertakings without admissions - no hearing on merits - judge orders defendant to pay costs of proceedings - judge concluding defendant acted unreasonably - conclusion open without hearing on merits.

CONTRACTS – construction and interpretation of contracts – sale agreement – total purchase price payable in two stages – sale conditional on novation of agreements with numerous clients – variation of sale agreement when condition not met – lesser amount agreed for first payment – whether second payment to be calculated as percentage of first payment or on basis of novated agreements

TORTS – Negligence – Motor vehicle accident – Vehicle strikes pedestrian crossing at an intersection against “don’t walk” sign – Whether primary judge’s finding that driver liable was in error – Whether primary judge’s assessment of contributory negligence at sixty per cent was in error.

TORTS - negligence - motor vehicle accident - unsealed road - plaintiff's vehicle went onto shoulder - approaching guide post - loose material on shoulder - plaintiff corrected and lost control - vehicle went off road and plaintiff injured - road under defendants' control - used as haul road for coal trucks - regularly graded - issue of perception of boundary between shoulder and hard running surface - degree of uniformity of colour - whether road surface deceptive - if deceptive whether causation of accident because of deceptiveness proved - use of photographs as evidence - evidence given by reference to photographs - departure from trial judge's findings - need for inference of greater probability than other available inferences.

PROCEDURE – judgments and orders – power to set aside and vary orders – whether orders can be varied after four years have passed and a hearing of a reference to an associate justice has occurred – whether variation of orders is a change in the price of equitable relief – whether intention of orders miscarried - PROCEDURE – judgments and orders – liberty to apply – whether an attempt to alter the substance of orders falls under liberty to apply - EQUITY – maxims of equity – he who seeks equity must do equity – whether orders made according to the principles of the maxim should be varied – whether variation of orders is a change in the price of equitable relief

FAMILY PROVISION - Whether unemployed adult son with some health problems left without adequate provision for proper maintenance, education and advancement in life - Testator's wishes to ensure secure accommodation for plaintiff - Structure of provision in light of evidence

SUCCESSION - family provision and maintenance – practice – plaintiffs commenced proceedings under Family Provision Act – no general grant of probate or administration – limited grant obtained under former s 41A of Probate and Administration Act prior to commencement of proceedings – whether appropriate to appoint representative of estate or continue in absence of representative under UCPR 7.10 – order made to continue in absence of representative of estate. - PRACTICE – commencement of proceedings – parties – proceedings commenced seeking, inter alia, to set aside transaction of deceased on grounds of undue influence – no general grant of probate or administration – chose in action formed part of the estate – whether plaintiffs had standing to pursue undue influence claim – whether proceedings a nullity – whether representative of estate should be appointed under UCPR 7.10 – whether power exists to do so – held that plaintiffs had no standing to pursue undue influence claim – proceedings not a nullity as plaintiffs had standing in respect of other claims brought in the proceedings – representative appointed in respect of undue influence claim under UCPR 7.10.

PROCEDURE – Supreme Court procedure – New South Wales – application to join insurance company as a party to proceedings – INTERPRETATION – interpretation and application of s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 and s 54(1) Insurance Contracts Act 1984 (Cth) – INSURANCE – professional indemnity insurance – insured failed, during any period of cover, to notify insurance company of any fact or circumstance that might give rise to a claim against it – claim not within policy – no application of s 54(1) Insurance Contracts Act 1984 – motion dismissed

CRIMINAL LAW - sentence - robbery whilst armed with dangerous weapon - two robberies and one attempted robbery - planned and co-ordinated offences committed at three separate hotels over short period - whether part of same criminal enterprise - whether error in accumulation of sentences - whether sentences manifestly excessive - whether leave to appeal against sentences ought be granted - leave refused

APPEAL - practice and procedure- judgments and orders- powers of Court of Appeal to grant interlocutory injunction in aid of appeal- proper approach- relevant considerations.

EVIDENCE - admissibility and relevancy - opinion evidence - expert evidence - whether trial judge erred in preferring the opinion of one expert to another where the former had greater expertise - whether trial judge impermissibly took into account own opinions on issues requiring expert testimony - effect of rules of court on admissibility of expert evidence and expert opinion evidence - whether evidence of expert materially interested in the proceedings is admissible. - CAUSATION - material increase in the risk - whether risk created by the tortfeasor came home - use of epidemiological and statistical evidence.

TORTS – negligence – apportionment of responsibility – scope of employer's obligation to ensure safe system of work – danger on land not occupied by employer – absence of control over dangerous premises – whether obligated to undertake site inspection – whether causal connection between breach and injury - TORTS – negligence – contributory negligence – dangerous pit cover – whether aware of risk or ought reasonably to have been aware - WORDS AND PHRASES – "non-delegable duty"

ESTOPPEL - promissory estoppel - representations by financier that would not charge interest at default rate - extent of detrimental reliance on representations by borrower - SET-OFF - set-off at law under s 21 Civil Procedure Act 2005 - no set-off where debt sought to be set-off was owed to joint but not joint and several creditor

CONTRACTS – general contractual principles – construction and interpretation of agreement – text, structure and context of agreement – whether written notification required for satisfaction - CONTRACTS – rectification of contract – evidence of common intention not embodied within written agreement – whether claim for rectification would have succeeded – whether loss incurred through foregone right to terminate - ESTOPPEL – estoppel by convention – distinction from promissory estoppel – variation of contractual condition – basis for estoppel – whether common understanding or arrangement between parties - PROCEDURE – decision and judgment – whether necessary to resolve issues not determinative of case – appropriate considerations – allocation of judicial resources – distinction between trial and appellate court – distinction between questions of fact and law – likelihood and possibility of successful appeal or grant of special leave - WORDS AND PHRASES – "development consent" – "building consent" – "estoppel by convention" – "rectification of contract" – "loss of opportunity"

EVIDENCE – weight and sufficiency of evidence – objective and expert evidence – statistical evidence – whether sufficient to compel rejection of witness testimony – whether constituted more than speculative possibility - PROCEDURE – federal jurisdiction – claim under Commonwealth law – application of State laws – sufficiency of Commonwealth law – whether Commonwealth law otherwise provides - TRADE AND COMMERCE – trade practices – consumer protection – liability of manufacturers or importers for defective goods – whether objective evidence disproved liability – whether objective evidence established statutory defences - WORDS AND PHRASES – "defective goods" – "manufacturer's liability"

ADMINISTRATIVE LAW – judicial review – procedural fairness – existence of obligation – hearing – notice to persons affected – ongoing disciplinary investigation – amendment to statutory framework – whether obligation to notify of possible decision under amended framework - ADMINISTRATIVE LAW – judicial review – error of law – whether transitional provisions applied – disciplinary investigation – allegation of misconduct – whether preconditions to exercise of power satisfied - PUBLIC SERVICE – employees – procedure with respect to allegations of misconduct or unsatisfactory work performance – power to take remedial action - WORDS AND PHRASES – "breach of discipline" – "remedial action"

Common law - Local Court appeal - costs following the event - Calderbank offer - counter offer - exercise of discretion

REAL PROPERTY - transfer by parents to daughter and son-in-law for nil consideration - presumption of advancement - rebuttal of presumption.

Statutory construction - Interpretation Act 1987 - Home Building Act 1989 - Examination of what are the circumstances that entitle a person to the benefit of a statutory warranty as provided for in section 18D of the Home Building Act - Whether the statutory scheme avoids the requirement of privity of contract because it provides its own criterion, which is whether the work was done on behalf of the relevant person - Holding that section 18D avoids the privity of contract rule

CONTRACT – ACCORD AND SATISFACTION – CONSTRUCTION – whether repayment of part of debt by precisely stipulated time was condition precedent of release so that equitable rules as to time of essence not applicable.

TRADE AND COMMERCE - alleged contravention of Trade Practices Act 1974 (Cth) by company - alleged aiding and abetting by company's representative - first claim upheld but second claim not upheld - not established that representative knew of falsity of representations

CORPORATIONS - winding up - conduct and incidents of winding up - determination of separate questions - liquidator concedes that costs awarded against company in liquidation are expenses with s 556(1)(a) - costs neither agreed nor assessed - whether court should order company in liquidation to pay the costs already ordered to be paid by the company - whether court should order liquidator personally to pay the costs already ordered to be paid by the company

PROCEDURE - costs - application by successful plaintiff for costs order against non party - proceedings for winding up of company on application of one of two shareholders - where other shareholder caused company to defend in early stages and then to capitulate - whether defence was abuse of process - whether second shareholder purported to conduct proceedings in name of defendant company without authority - dispute in truth between the shareholders - costs awarded against second shareholder - whether costs should be assessed on the indemnity basis

PROCEDURE - costs - non-party granted leave to be heard seeks costs - no "very special factor" shown - application refused

CORPORATIONS - winding up - members voluntary winding up - application by liquidator for determination of question arising in the winding up - where insurance company entered into arrangements with another insurer for transfer of engagements - arrangements originally rested in contract only - where the other insurer later covenanted by deed poll in favour of policyholders to perform its obligations as assignee under those arrangements - liquidator justified in regarding affairs of the company in liquidation as fully wound up subject to distribution of remaining surplus among members

PROCEDURE - joinder of parties - application for joinder after judgment given on appeal - whether joinder necessary - whether orders made directly affected the rights of the applicant for joinder - PROCEDURE - when judgment entered - application for variation of orders and joinder of party after judgment entered

APPEAL - statutory appeal - limited to decision on question of law - availability of judicial review - bifurcated jurisdiction - PROCEDURE - application for leave to appeal - order removing Tribunal as party to statutory appeal - PROCEDURE - application for stay pending leave application - whether application had reasonable prospects of success - PROCEDURE - jurisdiction of District Court - power to grant relief by way of judicial review

EQUITY – deed – effect of release of one of several persons liable to the person granting the release in a deed – whether agreement was a covenant not to sue – whether it was a release of all obligations such that all parties were released from liability - EQUITY – deed – co-ordinate liability – covenant not to sue – whether the party with the benefit of the covenant could be made subject of a claim of contribution by others with co-ordinate liability to the “releasor”.

ADMINISTRATIVE LAW – imported vehicles (caravans) with gas installations that complied with the relevant European standard “approved” under the Motor Vehicle Standards Act (Cth) by Administrator on behalf of Federal Minister – whether vehicles met criteria for registration under State law – whether specific provisions of the Dangerous Goods (Gas Installation) Regulation made under the Gas Supply Act applied to the vehicles by virtue of clause 21(a) in Schedule 2 of the Road Transport (Vehicle Registration) Regulation which refers to “…any other Act or law…” –STATUTORY CONSTRUCTION – interaction of Federal legislation (the Motor Vehicle Standards Act (Cth)), Australian Design Rules to which that Act refers and State law including the Road Transport (General) Act and the Road Transport (Vehicle Registration) Act – clause 21(a) of Schedule 2 did not apply – the Dangerous Goods (Gas Installation) Regulation therefore did not operate to impose requirements for registration on the imported vehicles in question – even if the provisions of that Regulation could apply by virtue of clause 21(a), they could not operate extraterritorially with respect to vehicles manufactured overseas or in relation to which the installation of gas fitting was undertaken in Europe – the gas installation complied with the relevant European standard and with the relevant requirements in Schedule 2 of the Road Transport (Vehicle Registration) Act

CORPORATIONS - voluntary administration - deed of company arrangement - deed fund held under control of deed of administrator - company later becomes subject to creditors' voluntary winding up - whether deed fund "property of" the company within s 501 - where deed of company arrangement has not brought about the creation of a trust - duty of company officers to put liquidators into possession of the company's property

COSTS – assessment – costs assessor – review panel – adequacy of reasons – basis of assessment of all disputed costs must be explained – statement of reasons must be sufficiently precise to give meaningful content to rights of appeal – sufficient to specify how disputed costs of the same kind were treated – failure to provide sufficient reasons.

CORPORATIONS - winding up - pending application for winding up in insolvency - application for substitution as plaintiff - whether applicant for substitution is a creditor - turns on own facts

PRIVATE INTERNATIONAL LAW - jurisdiction - leave to proceed under UCPR r 11.4 against a foreign defendant - cross application to set aside service under UCPR r 12.11 - compressors manufactured by German company (the second defendant) sold to Australian supplier (the first defendant) who sold them onto Australian plaintiff company - plaintiff constructed air conditioning units using the compressors in air conditioning units installed in trains in India and allegedly suffered damage when the plaintiff claimed the compressors failed - misleading and/or deceptive conduct under the Trade Practices Act and negligence pleaded against German manufacturer – whether claims had insufficient prospects of success - where representations contained in the catalogue, operating instructions and data plate affixed to the compressors which were provided by German manufacturer to the Australian supplier upon sale of compressors were representations provided by German manufacturer to the plaintiff in NSW – the act relied upon and giving the plaintiff its cause for complaint (the representations) occurred in NSW – claims fall within the grounds of Schedule 6 UCPR and at least for the purposes of the application had sufficient prospects of success - Supreme Court of NSW not a clearly inappropriate forum - second defendant's application to set aside service dismissed

CORPORATIONS - receivers - directions - moneys received by company as agent for service providers - such moneys paid by customers into company bank account designated "trust account" - balance after commission paid out to services providers - whether trust moneys - whether direction should be given to receivers accordingly

PROCEDURE - costs - costs of defendant's motion for security for costs - where defendant substantially unsuccessful - where defendant did not accept offer of compromise on a basis at least equivalent and arguably superior to the outcome

Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Held there was a genuine dispute in respect of the claims. No matter of principle.

REAL PROPERTY – strata title – management and control – body corporate: powers, duties and liabilities – duty under s 62(1) of Strata Schemes Management Act 1996 properly to maintain and keep in a state of good and serviceable repair the common property – whether duty strict – whether owners corporation breached duty – whether plaintiff caused or contributed to own loss or is estopped from asserting loss – whether plaintiff failed to mitigate loss – held that duty strict – owners corporation breached duty – plaintiff did not cause or contribute to loss and not estopped from asserting loss – plaintiff did not fail to mitigate loss.

CONTRACTS - Contracts Review Act 1980- that a loan agreement and supporting mortgage should be set aside- whether transactions were unjust when entered into and whether the court should grant relief- elderly mother and son entered into loan agreement with respondent- securing mortgage over mother's house- lending guidelines- independent legal advice. EQUITY- unconscionability- elder law- whether transaction ought to be set aside.

Administrative Law. Application to set aside determination under Building and Construction Industry Security of Payment Act 1999.Whether the decision was a nulity and whether there was a denial of natural justice resulting from the adjudicator's determination of the question of when a payment claim was served. Held not. Consideration of terms of Electronic Transactions Act 2000. Trade and Commerce. Whether statements in adjudication application were misleading and deceptive. Held not and no effective causal link.

Serious sex offender - application for extended supervision order not opposed - consideration of length of order.

CLIENT LEGAL PRIVILEGE - dominant purpose - non privileged document reproducing privileged communication.

ADOPTION – ADJOURNMENT – whether adjournment pointless as application for revocation of care order would fail – whether natural mother has reasonable prospect of being able to resume care of child – whether adoption order should be made now or Court should ‘wait and see’.

CONTRACT - Construction of contract - "Contamination analysis" and "treatment" - Whether defendant agreed to pay for assessment of site, subject of a sale contract, irrespective of whether defendant liable in respect of remediation of contamination - Whether plaintiff entitled to specific performance - Whether defendant entitled to retain deposit - Whether defendant entitled to payment of balance of purchase moneys held in trust account

PRACTICE AND PROCEDURE - rights of set-off under section 21 of the Civil Procedure Act - Statement of Claim in unsatisfactory state - leave to amend granted on terms.

CRIMINAL LAW - Sentence appeal - aid and abet manufacture commercial quantity of cocaine - trafficking a commercial quantity of cocaine - money laundering - integral role in commission of offences - error in noting Crown submission as to proposed aggregate sentence and non parole period - material error requiring intervention - parity - manifest excess - appeal allowed.

COSTS - Calderbank offer- whether respondents' rejection of the offer was unreasonable. COSTS- principles relating to jointly represented parties.

APPEAL – Admission of fresh evidence – Whether requirement of credibility satisfied – Whether requirement of probability of different result satisfied. - EVIDENCE – Privilege against self-incrimination – Objection taken – Witness does not willingly give evidence – Whether the court should direct the witness to give evidence – Interests of justice.

PROCEDURE - costs - appeals as to costs - construction and application of s 361 of the Legal Profession Act 2004 - assessment of costs involving non-associated third party payer - whether costs assessor required to consider costs agreement where non-associated third party payer not party to that costs agreement - whether costs assessor entitled to determine amounts in respect of GST.

EQUITY - Legal incapacity - Approval of settlement between the plaintiff/cross-defendant and first defendant/cross-claimant - Settlement prudent - Weight given to the opinion of counsel and solicitor that settlement is fair and appropriate