Cases and authorities

MORTGAGOR and MORTGAGEE - mortgagee's power of sale - claim by mortgagors that mortgagee liable for deficiency on sale at undervalue - on review of facts, found, no undervalue, no lack of good faith. Accounts settled on basis of sale price received by mortgagee.

Family Provision. Application by two children who received minimal gifts. Further provision made for plaintiffs. No matter of principle.

LESSOR and LESSEE - Commercial premises - halal butchery shop in Auburn Centre - on the facts, the plaintiff did not establish rights under Trade Practices Act s 52 - damages assessed for breaches of landlord's covenants relating to obstruction and disturbance from continuing building work.

Family Provision - adult son aged 53 with moderate disabilities and base-rate earning capacity - no housing, no dependents, meritorious in relationship with mother - provision in will $100,000 - two other sons received $100,000 in will and one of them received additional $60,000 under FP Act - Estate $972, 877.86 - daughter received residue under will - review of merits, needs and available resources - additional provision $75,000

PROCEDURE - separate questions - action by company against director for alleged breach of duty - prior adjudication of oppression claim brought against that director - whether question of estoppels arising from earlier proceedings should be separately determined - whether limitation defence should be separately determined - whether claim to be excused should be separately determined

CRIMINAL LAW - SENTENCING - parity - offence on Form 1 - totality - overall effective sentence - consideration of sentence being served

PROCEDURE - Supreme Court procedure - New South Wales - pleadings - statement of claim - application to strike out claim for breach of statutory duty and negligence - police - duty of care - section 15A of the Director of Public Prosecutions Act 1986 - orders refused - costs

TORTS - negligence - road accident cases - whether finding that respondent's reporting of symptoms substantially truthful was glaringly improbable - challenge to assessment of damages - past and future economic loss - reassessment by appellate court where primary judge's method of calculating loss not adequately disclosed

CRIMINAL LAW - jury trial - lengthy records of interview between accused and police - Crown application to provide jury during closing address with documents containing topics and cross-references to answers in interviews - objection by accused to provision of document - relevant discretionary considerations - whether any unfairness to accused - jury entitled to practical assistance - no unfairness to accused - application allowed

Contract - Proper construction of Waste Processing Deed - Difficulties in Court determining what "business commonsense" may mean - Expression "in accordance with" an ordinary English expression meaning "in agreement or in conformity with” - Primacy to be given to actual words used in written contract - Principles which inform branch of estoppel known as ‘conventional estoppel’ - Assumption to be relied upon must be clear, precise and unambiguous - Estoppel by convention may be terminated - Once a common assumption is revealed to be erroneous the estoppel will not apply to future dealings between the parties - Reliance - Good faith provision - Duty of good faith does not require a party to subordinate its interests or contractual rights - Implied term for parties to cooperate with one another to obtain the benefit of contract and to not prevent the other party from performing its contractual obligations does not rise beyond express terms - Relief - Consideration of circumstances in which Court would not order specific performance or grant mandatory injunctive relief which would have the effect of requiring constant supervision of the Court and continued co-operation of parties - Relief sought would expose party to penalties for contempt for future non-compliance with obligations or breaches of contract - Defendant must know what a court order requires to be done

EQUITY – trusts and trustees – resulting trusts – plaintiffs provided part of purchase price for property in son’s name – whether presumption of advancement rebutted – whether presumption of resulting trust rebutted – held that presumption of advancement rebutted – presumption of resulting trust not rebutted – property held on resulting trust for plaintiffs to the extent of their contribution to the purchase price. - EQUITY – trusts and trustees – constructive trusts – whether plaintiffs entitled to relief applying Baumgartner v Baumgartner: whether parties engaged in joint venture - whether joint venture failed without attributable blame - whether unconscionable to deny entitlement of parents – alternatively, whether plaintiffs entitled to relief by reason of proprietary estoppel: whether plaintiffs, in making contributions to property, acted in detrimental reliance upon assumptions induced by legal owner of property – held entitled to relief on both bases - consideration of appropriate relief – whether other relief available – whether constructive trust would grant plaintiffs unfair priority over third party creditors – held appropriate relief provided by declaration of resulting trust in respect of contribution to purchase price and equitable lien securing additional contributions.

PRACTICE and PROCEDURE - Summary Disposal UCPR 13.4 - Appeal from dismissal by Associate Judge of proceedings after Amended Statement of Claim filed purportedly under leave granted on earlier Summary Disposal Application - detailed review of alleged errors in exercise of discretion under UCPR 13.4. HELD - no error, appeal dismissed.

Leave to reopen - Principles - Weighing exercise - Importance of regular moving forward of final hearing

CORPORATIONS - winding up - statutory demand - application for order setting aside - genuine dispute - offsetting claims - no matter of principle

CONTRACTS – contract for sale of property – vendor’s notice to extend time for completion – notice wrongly stating date for completion – whether notice effective – whether purchasers’ conduct waived right to rescind – no question of general principle

Costs - court's discretion as to costs - adjournment of hearing - declaratory relief no longer sought

PROCEDURE - judgments and orders - amending, varying and setting aside - application to amend orders when respondent failed to comply with directions to determine amounts of interest - orders intended to be made by consent under section 46 Supreme Court Act 1970 - whether orders should be made by a single judge or the full court when solicitor for the respondent ceased acting - PROCEDURE - judgments and orders - application for removal of caveat - whether orders can be made without notice to or consent of the respondent - proper procedure for removal of caveat

PROCEDURE - judgments and orders - application for stay of orders of the District Court made on appeal from the Childrens Court - conclusion by District Court that two children should be returned to their mother - stay refused

PROCEDURE – Costs – Taxation – plaintiff had succeeded in litigation – defendant submitted bill of costs based on alleged costs agreement – whether costs agreement had existed – whether defendant retained on void contingency basis – Held no costs agreement existed and costs payable on quantum meruit basis as assessed under Division 6 of Part 11 of the Legal Profession Act 1987 - TORTS - Trover and detinue – Remedies – Action of detinue – Files and documents in relation to earlier litigation held pending payment of costs and disbursements – Held defendant entitled to lien – Order that defendant deliver up files and documents on provision by plaintiff of security for the costs payable to defendant

CHILDREN – Parens patriae jurisdiction – Court to keep close supervision of implementation of radical order – obligation of DoCS to provide relevant information

TORTS – Negligence – Proof of negligence – Weight and credibility of evidence – Whether primary judge erred in acceptance and rejection of certain evidence – Security personnel and group of men engaged in fight outside nightclub – Member of group issued threat to return and kill – Whether respondent was specific target of threat – Duty of care by employer to respondent to provide a safe system of work and avoid risk of injury – Whether reasonably foreseeable that group of men or another person on their behalf would return and shoot respondent – Whether breach of duty of care by not rotating respondent inside nightclub to perform security duties – Causation – Whether respondent would have been shot in any event had he been rotated inside nightclub

Security for costs - who is the real plaintiff - cross claim on grounds overlapping with those in claim - inability to pay costs: as at what time

CONSTITUTIONAL LAW - Negligence - Questions for separate determination pursuant to rule 28.2 of the Uniform Civil Procedure Rules - Removal of matter to Court of Appeal pursuant to rule 1.21 of the Uniform Civil Procedure Rules

PROCEDURE - Supreme Court procedure - New South Wales - notice of motion - application to strike out defence to the amended statement of claim - mortgage property - allegations of fraud - motion dismissed - orders requiring filing of amended defence and cross claim made - costs

CRIMINAL LAW: - particular offences - offences against the person - common assault - using an offensive weapon with intent to commit an indictable offence - intimidation with intent to cause fear of physical or mental harm - sexual intercourse without consent - appeal against convictions - whether convictions unreasonable or unsafe and unsatisfactory - test to be applied - whether mixed verdicts consistent with compromise - whether error in failure of trial judge to direct jury as requested - appeals against conviction dismissed.

CORPORATIONS - statutory derivative action - leave granted for member to bring proceedings on behalf of company - member undertakes to protect company from costs and expenses of the proceedings - proceedings now concluded - company awarded equitable compensation - equitable compensation less than amount by which actual expenses of litigation exceed assessed costs awarded to the company - whether member should be released from undertaking

LIMITATION OF ACTIONS – proceedings for damages for personal injury – statutes of limitation – expiration of primary limitation period and secondary limitation period – whether an order can be made under the Limitations Act, s 60C after the expiry of the secondary limitation period - PROCEDURE – commencement of proceedings for damages for personal injury – whether the filing of a notice of motion with a statement of claim annexed commences proceedings – whether an order can then be made nunc pro tunc - LIMITATION OF ACTIONS – proceedings for damages for personal injury – whether the statutory requirement in the Limitations Act, s 68A confers a substantive right on the opposing party

PROCEDURE – application for stay of judgment pending determination of appeal – trial judge ordered the defendant to transfer property –parties dispute whether substantial stamp duty will need to be paid upon the transfer of the property – parties dispute whether substantial stamp duty will need to be paid upon the re-transfer of the property if the defendant’s appeal is successful – whether the defendant’s appeal has reasonable prospects of success – whether the balance of convenience favours the grant of a stay – appropriate orders to make regarding management and marketing of property in the interim of the application for stay and the determination of the defendant’s appeal

NEGLIGENCE – Duty of care – plaintiff shot in course of brawl on nightclub premises – duty of nightclub operator to provide security – duty of security provider contracted to provide security guard – whether operator delegated duty to security provider – whether sufficient level of security provided – whether contracted guard failed to perform his duties diligently – - NEGLIGENCE – Causation – whether higher level of security would have averted injury to plaintiff – - NEGLIGENCE – Contributory negligence – whether by joining brawl plaintiff failed to take reasonable care for own safety – apportionment – - DAMAGES – Assessment – Gratuitous care – whether to be allowed in respect of parent’s attendances while plaintiff cared for by paid hospital staff

CRIMINAL LAW - Particular offences - drug offences - importation of commercial quantity of border controlled drug (GBL) - attempt to import commercial quantity of border controlled drug (GBL) - Appeal against conviction - whether verdict unreasonable - whether verdict supported by evidence - whether necessary to direct jury that crucial or indespensable facts must be established beyond reasonable doubt - whether error by permitting Crown to lead evidence of GBL found in appellant's bedroom - consideration of 'crucial or indispensable intermediate facts' - consideration of R v Merritt [1999] NSWCCA 29 and subsequent authorities - R v Merritt distinguished - s 137 Evidence Act, whether danger of unfair prejudice to appellant outweighed probative value - Appeal against sentence - whether sentence manifestly excessive

CRIMINAL LAW — Sentencing — Commonwealth offence — assistance — sentence reduced by reason of assistance — failure to provide assistance — Crown appeal — s 21E Crimes Act (Cth) — s 14A Criminal Appeal Act (NSW)

CRIMINAL LAW – Sentence appeal – Manslaughter by excessive self-defence – Whether sentence manifestly excessive.

PROCEDURE – Application for stay of judgment – Whether there is an onus on the applicant to exclude appreciable risk that delay will cause the applicant to be less able to meet the judgment.

Family Provision. Application by a daughter left out of the deceased's will. Provision made for plaintiff substantially out of a share passing to a charity.

Criminal law - sentencing - various counts of indecent assault and acts of indecency committed upon a child under 16 - offences committed about 30 years ago - need to impose sentences by reference to the pattern of sentencing that existed at time of offending

EVIDENCE – analysis of medical evidence – importance of analysing medical evidence in its proper context – importance of considering the purpose for which the medical evidence was created – importance of considering medical evidence in conjunction with other evidence - EVIDENCE – rejection of evidence – rejection on dubious basis or without regard to other relevant evidence – rejection subject to appellate scrutiny - TORTS – negligence – duty of care – threats made to a person – steps taken by a person in response to threats does not mean that a duty of care is no longer owed to that person

TORTS – Negligence – Plaintiff injured assisting supplier to unload building materials – Whether duty of care owed by builder. - DAMAGES – Whether appropriate findings made – Whether primary judge’s assessment of plaintiff erroneous – Whether award excessive. - DAMAGES - Assessment - Divisible and indivisible loss - Disentangling - Assessment of future hypothetical events. - DAMAGES - Assessment - Poor employment record - Future economic loss - Increased allowance for vicissitudes.

LOCAL COURT – appeal – contract – construction of terms

PROCEDURE - judgments and orders - amending, varying and setting aside - order sought to vary self executing order - plaintiffs failure to comply with self executing order - short delay - representative error - orders varied - costs

CRIMINAL LAW - sentence - offences of murder and arson - offender conceals body of victim - offender sets fire to dwelling house 18 days after murder - blames victim for fire - motive for arson to deflect police from investigation of offender for disappearance of victim - objective seriousness of offences - whether worst case of murder - absence of remorse and contrition - determinate sentences of imprisonment imposed

CONVEYANCING - completion of contract - mortgagee exercising power of sale - no attendance by purchaser at settlement - termination of contract - claim for damages - whether mortgagee able validly to exercise power of sale - whether binding agreement to rescind sale contract - whether notices to complete invalid by reason of antecedent breach - lack of clean hands - purchaser not being in breach - defective form - or lack of readiness, willingness and ability at time of issue of notice to complete - held that mortgagee in position to exercise power of sale - no binding agreement to rescind sale contract - notice to complete valid - mortgagee awarded damages.

PROCEDURE – submitting appearance – application for leave to withdraw appearance – absence of parties

Family Provision. Application for property adjustment under s20 of Property (Relationships) Act 1984. Short period of cohabitation. Orders for adjustment. No matter of principle.

Vendor and purchaser - Requisitions - Notice to Complete making time of essence - Contract of sale and purchase of residential property terminated for breach - release of deposit paid - Damages claimed and assessed

Pleading - fourth attempt to draft statement of claim - as to attempt to plead action in negligence, scope and attributes of duty of care not adequately pleaded - leave not given to raise alternate claim for judicial review - lapse of nine years

PROCEDURE - costs

CORPORATIONS - winding up - appeal from liquidator's rejection of proof of debt - hearing de novo - SALE OF GOODS - conditions and warranties - implied conditions and warranties - plaintiffs made known to company the purpose for which they required goods so as to show that they relied on the company's skill or judgment - breach of implied warranty as to fitness for purpose