Cases and authorities

SUCCESSION – STATUTORY WILL – REPRESENTATION ORDER – PROCEDURE – whether uncontested application may be heard in absence of public and orders made without publishing reasons – whether separate representation order should be made – whether leave to make application should be granted and final orders made at same time. - APPROVAL – PRE-EMPTED CAPACITY CASE – whether will excluding father reasonably likely in circumstances of case.

CONTRACTS – particular parties – bank and customer – Bank required to act reasonably and fairly to customer by virtue of Code of Banking Practice – whether Bank’s refusal to agree to partial refinance and release of securities was unreasonable and unfair – whether implied term that Bank would agree to permit partial refinance – whether any utility in declaration – held Bank had not acted unreasonably and was not required to agree to partial refinance

TORTS - negligence - employer's duty of care - undercover police officer suffering psychiatric injury - accumulation of stress - whether duration of undercover service excessive - whether employer should have provided for compulsory reviews of officer's mental health - whether injury caused or, materially contributed to, by alleged negligence

Solicitor retained to act for employee arising out of termination of contract of employment by constructive dismissal - solicitor does not pass on substantial offer of settlement to client within time open for acceptance - damages to be assessed on basis of loss of opportunity - solicitor not responsible for past loss of earnings of plaintiff when root cause of his inability to obtain employment due to his conduct and misconduct

CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - breaking into house and stealing - utility of JIRS statistics in assessing the appropriateness of a sentence

CRIMINAL LAW – Amendment of indictment to include additional charges – Onus on Crown to show that single trial on all charges in indictment would not unfairly prejudice or embarrass the accused and that it is not desirable that there be separate trials.

Criminal law - conviction appeal - charges of indecent assault and sexual intercourse without consent - whether open to jury to be satisfied of guilt beyond reasonable doubt - on facts, was open - no question of principle - sentence appeal - error in decling to find good prospects of rehabilitation - only stated reason that continued to maintain innocence - other favourable matters - gave stated reason undue weight without proper regard to the other matters - offender resentenced.

PROCEDURE – judgments and orders – amending orders – slip rule – costs below – order not sought – Uniform Civil Procedure Rules 2005 (NSW) r 36.17

PROCEDURE – judgments and orders – amending orders – slip rule – Uniform Civil Procedure Rules 2005 r 36.16(3A), r 36.17

TORTS – negligence – proof of negligence – sufficiency of evidence – plaintiff allegedly struck by barricade blown over by strong wind in shopping centre – no eyewitness evidence as to circumstances of plaintiff’s fall – no evidence as to nature of any barricade – no evidence that managing agent or security services appointed by occupier failed to discharge duties – whether inference of negligence could be drawn - EVIDENCE – burden of proof, weight and sufficiency of evidence – generally - EVIDENCE – unexplained failure to call witness – whether adverse Jones v Dunkel inference could be drawn – lack of forensic utility in drawing adverse Jones v Dunkel inference against all parties

CRIMIMAL LAW - practice and procedure - prosecutor's appeal from decision of magistrate to give herself a Prasad direction and dismiss information - whether matter appropriate for Prasad direction - whether error of law - finding of incorrect fault elements in analysis of offence - requiring proof of irrelevant matter - error as to standard of proof.

PROFESSIONS AND TRADES - valuers - duty of care - loan made in reliance on negligent valuation - default - when cause of action arises against valuer. TORTS - negligence - joint or several tortfeasors - proportionate liability provisions of Civil Liability Act and Trade Practices Act - concurrent wrongdoers - when liability arises - whether Part 4 Civil Liability Act engaged. LIMITATION OF ACTIONS - contracts, torts and personal - when time begins to run.

ADMINISTRATORS - Whether administrator entitled to satisfy lien out of assets of the Company prior to accounting to liquidator for debts incurred during administration and remuneration for work done during administration

CONTRACTS – general contractual principles – construction and interpretation of contracts – construction of the phrases “close of business” and “bank statements” – ascertaining the intention of the parties

STATUTORY INTERPRETATION - Duties Act 1997, Chapter 8, Part 1 - meaning of "insurer" - whether meaning in Dictionary to the Act applicable - whether contrary intention for the purposes of Interpretation Act, section 6

INDUSTRIAL LAW – whether privative provision applies to review of Police Commissioner’s removal order under Police Act 1990 (NSW) - STATUTORY INTERPRETATION – privative clause – purposive interpretation – context of provisions – clear statement principle – whether s 179 of Industrial Relations Act 1996 (NSW) applies to a review under Div 1C of Pt 9 of Police Act 1990 (NSW) – Industrial Relations Act 1996 (NSW) s 179 – Police Act 1990 (NSW) ss 181D(7A), 181G - ADMINISTRATIVE LAW – Hickman principle – whether decisions of Industrial Relations Commission and Full Bench violated Hickman principle – whether alleged errors, individually or cumulatively, meant decisions not reasonably capable of reference to Commission’s power or breached inviolable limitations or restraints on Commission’s jurisdiction or constituted failure to observe condition essential to valid action - POLICE – review of Police Commissioner’s removal order – role of integrity – importance of Commissioner losing confidence in officer – Police Act 1990 (NSW) ss 7(a), 181D, 181E, 181F - WORDS AND PHRASES – “have regard to” – “integrity”

BUILDING AND ENGINEERING CONTRACTS — payment claim — Building and Construction Industry Security of Payment Act 1999 (NSW) ss 5, 13, 14, 15, 17, 22 – where claimant seeks to re-agitate unsuccessful claim already adjudicated upon as part of a new wider claim – held claimant's statutory entitlement was exhausted and re-use of the machinery of the Act in the circumstances was an abuse of process and should be restrained – Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 and Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Constructions Systems [2009] NSWSC 416 followed

UNDUE INFLUENCE - Whether presumption of undue influence where plaintiff transfers substantial property to defendant/carer for $1 - Whether presumption rebutted - CONTRACT - Whether contract between plaintiff and defendant to transfer property - CROSS-CLAIM - Whether defendant entitled to recover amount for renovations - Whether defendant entitled to recover amount for care provided to the plaintiff

DISCOVERY AND INTERROGATORIES - application for preliminary discovery - whether significant difference between "reasonable inquiries" and "all reasonable inquiries" - whether plaintiffs had made "reasonable inquiries" - whether plaintiffs had sufficient information to commence proceeding against defendant - whether to invoke court's discretion under relevant rules - whether discovery categories too broad - whether preliminary discovery available for proposed representative action.

CRIMINAL LAW - Crown appeal against inadequacy of sentence - drug addiction at time of commission of offences - whether sentences inadequate having regard to Henry guideline judgment - sentences manifestly inadequate - residual discretion not to interfere with sentences imposed - steps taken by offender towards rehabilitation and delay between offences and sentencing warranting exercise of the discretion.

CRIMINAL LAW - appeal against sentence - appellant pleaded guilty to cultivation of cannabis plants by enhanced indoor means - total term of 4y with non-parole period of 2y 6m - whether cultivation by enhanced indoor means wrongly taken into account as an aggravating feature - hardship of imprisonment for a foreign national - whether sentencing Judge failed to give due weight to prospects of rehabilitation and unlikelihood of re-offending - whether sentence manifestly excessive - applicant re-sentenced to imprisonment with non-parole period of 22m and balance of term of 14m

CONTRACTS – Contracts Review Act – loan agreement and mortgage – money borrowed to acquire shares in company by which business operated and to fund that business – loan secured by mortgage over defendants’ home – whether loan agreement and mortgage entered into for the purposes of any trade, business or profession carried on or proposed to be carried on by defendants – whether “asset lending” – false information as to defendants’ financial position given to plaintiff – plaintiff relied on that in assessing and approving application for loan – whether loan agreement and mortgage unjust within s 7(1) of Act – Australian Securities and Investments Commission Act – whether loan agreement and mortgage unconscionable within ss 12CB and 12CC of Act.

CORPORATIONS - winding up - conduct and incidents of winding up - recovery of preferences - elements of cause of action under s 588FF(1)(a) that defendants pay to company an amount equal to money paid by company to defendants - claim for interest - statutory basis for allowing interest - whether interest should be allowed - date from which interest should be computed - appropriate rate of interest - no appearance by non-submitting foreign defendants - consideration nevertheless of defence raised by them - CORPORATIONS - winding up - cross-border insolvency - plaintiffs seek letter of request addressed to High Court of Justice of England and Wales - defendants resident in England - plaintiffs ask this court to request the English court to order payment of money ordered by this court to be paid or, in the alternative, that the English court entertain afresh the claims litigated in this court - whether other methods of enforcement available to plaintiffs - whether English court has power to act as contemplated by letter of request - whether English court likely to act upon request

PRACTICE AND PROCEDURE – application to set aside subpoena – r 33.4 Uniform Civil Procedure Rules 2005 – whether subpoena constituted an impermissible fishing expedition – whether documents sought to be produced were irrelevant to the main issues in the proceedings – consideration of various formulations of the test for relevance – mere relevance not enough to establish legitimate forensic purpose – consideration of whether subpoena as drafted is too wide, oppressive or uncertain – HELD – application to set aside subpoena dismissed – direct that scope of subpoena be limited as indicated in reasons

Income tax - tax withheld but not remitted by company - liability of director - service of penalty notice

CONTRACTS – particular parties – vendor and purchaser – whether period of Notice to Complete extended by agreement – whether further extension of time for completion agreed – whether vendor ready willing and able to complete – whether purchaser ready willing and able to complete – whether contract validly terminated by vendor, held it was – damages, payment of balance of deposit (not a penalty) and holding costs allowed – whether leave to reopen case should be granted, general principles

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - contractor to notify intention to negotiate with principal to renew agreement or enter into a further contract - consent not to be unreasonably withheld - whether contractor could elect to renew - whether further contract on same terms as current agreement

ADMINISTRATOR - Voluntary administration - Whether voluntary administrator incurred debts for services rendered within s 443A of the Corporations Act 2001 (Cth) - Whether court should make an order pursuant to s 447A(1) - Whether administrator's cross-claim should be adjourned pursuant to Rule 13.6 of the Uniform Civil Procedure Rules 2005 (NSW)

WORKERS COMPENSATION - judicial review - Medical Appeal Panel - whether demonstrable error on medical assessment certificate of approved medical specialist - whether matters not put before Medical Appeal Panel could be argued upon judicial review - whether approved medical specialist and Medical Appeal Panel wrongly exercised jurisdiction - injury - causation - assessment of permanent impairment - whether Medical Appeal Panel made a demonstrable error in correcting medical assessment certificate - meaning of proportion in s 323(1) of the Workplace Injury Management and Workers Compensation Act 1998

CRIMINAL LAW — grievous bodily harm — competence of trial counsel — miscarriage of justice by reason of counsel’s conduct of trial — whether verdict unreasonable

CRIMINAL LAW - appeal against sentence - imposition of fixed term of imprisonment where standard non parole period exists - non parole period required to be set - CRIMINAL LAW - appeal against sentence - determination of objective seriousness - offence characterised as within mid range of objective seriousness - whether sentencing judge erred in not considering the putative mid range offence and contrasting with the present offence - appeal dismissed

SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had testamentary capacity. - PROCEDURE – Role of judge – Lengthy questioning of expert witness by judge – Whether intervention excessive – Whether intervention gave rise to a denial of natural justice. - EVIDENCE – Expert evidence that testatrix suffering from delirium – No opposing expert evidence – Hospital records suggesting conduct of testatrix inconsistent with symptoms of delirium as described by expert – Whether open to judge to reject uncontradicted expert evidence.

LIMITATION OF ACTIONS - suspension of limitation period as a result of disability under s 52 of Limitation Act 1969 (NSW) - opponent substantially impaired in management of affairs in relation to cause of action by reason of mental condition - opponent suffering from depressive illness - opponent unable to reason normally about various aspects involved in bringing a claim.

PRACTICE AND PROCEDURE - application to waive requirement to serve affidavits - whether the principle in Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1 still exists - whether such a principle is consistent with the Civil Procedure Act 2005 and the "cards on the table" approach to litigation - whether elements of Markus principle made out - matters to be taken into account by court in exercise of its discretion.

JUDGMENT – application to set aside – whether given or entered irregularly, illegally or against good faith – whether judgment genuine and authentic or "a forgery, a fake or counterfeit" or otherwise fabricated – whether Court’s website and file secure from tampering - whether irreconcilable and fatal conflict between foundation of application for relief and previous (unsuccessful) appeal to Court of Appeal by plaintiff against now disputed judgment – application dismissed - PRACTICE – hopeless proceedings - unwarranted applications - unreasonable refusal to accept rulings – power to restrain – restraint with conditions

DEFAMATION – justification – truth – withdrawal of defence from jury for lack of evidence – “reasonable suspicion” and “reasonable grounds” imputations – requirement that the defendant prove the truth of the imputations by reference to the objective evidence of the conduct of the plaintiff – insufficient to rely on conduct of third parties as proving the truth of the imputation – DEFAMATION – justification – truth – substantial truth – proof of the sting of the imputation – material inaccuracy – DEFAMATION – damages – aggravated damages

LEASES – lease of premises for conduct of a commercial car wash – demolition clause permitting termination of lease by lessor – where tenant expended money on fitout of premises including installation of machinery and associated costs of construction and installation – where lease terminated - clause providing for payment of compensation to the lessee "for the fitout" upon termination of the lease – whether agreement about depreciation rates made for the purposes of the litigation applies instead of historical depreciation rates appearing in financial reports and income tax returns– whether certain furniture items not installed are compensable as compensation "for the fitout" within the meaning of the relevant clause

Extension of caveat - Original charge not available for registration - Registrar-General's discretion under s 36(1C) and s 39(1) of Real Property Act 1900 - No prior notice to Registrar-General of intention to seek order that Registrar-General register photocopy of charge over property. - Declaration made that photocopy of charge is an accurate copy of the original charge

DEFAMATION - second stage defamation trial after s 7A trial - twelve imputations conveyed - Today Tonight programme - defences of justification - substantial truth and contextual truth - DAMAGES - general damages - aggravated damages - claim for exemplary damages - plea of mitigation of damages - facts properly before the court in respect of defences which failed - bad reputation - dishonesty of plaintiff - whether evidence related to relevant "sector" of reputation - whether findings of another judge admissible in mitigation - separate publications - assessment of damages - whether separate verdicts.

INSURANCE CONTRACTS - motor vehicle insurance - misrepresentations as to driving record and previous claims careless but not fraudulent - whether the insurer would have entered into the insurance contract upon the same terms and conditions if the misrepresentations had not been made - application of s 28 Insurance Contracts Act 1984 (Cth) - INSURANCE CONTRACTS - motor vehicle insurance - when interim and final contracts formed

COSTS - application for indemnity costs - Calderbank letter - no issue of principle

CONTRACTS - agreement on payment of "break fee" in certain events - some events involved an announcement "prior to the date of" a meeting - meeting convened but not held - whether contract meant the date for which the meeting was convened or the date on which it was held - construction of one-off provisions - no question of principle.

DEFAMATION - damages - general damages. ESTOPPEL - former adjudication - decisions of inferior courts and other subordinate tribunals - res judicata - issue estoppel. LANDLORD AND TENANT - retail and commercial tenancies legislation - powers and appeals of courts and tribunals.

CORPORATIONS - application to set aside a statutory demand - at hearing defendants consent to orders - costs

CORPORATIONS - application for an order under s 1322(4)(d) of the Corporations Act 2001 (Cth) extending the time for a company to give notice of share placement in accordance with disclosure requirements of s 708A(5) and (6)

CRIMINAL LAW - SENTENCING - whether facts found were open on the evidence - agreed facts - assessment of offenders role - whether sentence manifestly excessive - parity

Criminal law - sexual intercourse without consent - whether Crown could present case on basis of absence of consent in fact, alternatively consent under mistaken belief as to identity of other person - whether required alternatively framed counts in indictment - whether recklessness was part of Crown case - consideration of direction as to recklessness - accused's knowledge of absence of consent an element in offence - honest belief in consent negatives knowledge in fact - but recklessness another way of establishing knowledge as the element.

Criminal Law - Crown appeal - offences of home invasion and wounding with intent - whether offences is mid range of seriousness - whether departure from standard non-parole period too great - appropriateness of ex tempore remarks in complex sentencing case - failure to refer to aggravating factors including that offender on conditional bail.

CRIMINAL LAW AND PROCEDURE - Sentences - Maliciously inflict grievous bodily harm with intent and affray - Crown appeals asserting inadequacy - Separate considerations applicable to three offenders - Inadequacy demonstrated in respect of two offenders - Error in using standard non-parole period as a guide for initial assessment of total sentence - In two cases respondent resentenced

CONTRACTS – general principles – non est factum – party seeking to set aside contract with intellectual disability – no necessary inconsistency in the pleas of non est factum and incapacity – operation of the plea of non est factum concerns the true consent of the signer – no signature if the relevant mental incapacity prevents any understanding at all of the document - CONTRACTS – general principles – non est factum – requirement of no negligence by the signer relying on the plea – relevant standard of enquiry - lack of reasonableness of a person in the position of the signer - CONTRACTS – Contracts Review Act 1980 (NSW) – statute does not apply when no contract formed in law – statute does not apply when contract found void on basis of plea of non est factum - CONTRACTS – Contracts Review Act 1980 (NSW) – s 7 relief – orders in favour of party with a disability in circumstances where other party did not know of disability – relief can be granted – order would be made to vary loan and mortgage if statute was held to apply - CONTRACTS – Contracts Review Act 1980 (NSW) – s 6(2) – “carried on by or proposed to be carried on by” –meaning - matter of substance not form - WORDS AND PHRASES – “carried on by or proposed to be carried on by” - RESTITUTION - mistake: restitution arising from a plaintiff's mistaken actions - recovery of money paid under mistake – recovery of funds paid under a loan and mortgage later held to be void - right to recovery prima face enlivened – injustice of the retention of the money or benefit – receipt and benefit matter of substance not form – whether funds received and retained – conduct of lender relevant in circumstances of this case – non est factum and restitution - conformity of legal principle – party not liable in restitution to repay funds where loan contract found void and party did not in substance receive benefit from the funds