Cases and authorities

CONTRACTS - general contractual principles - discharge and breach - employment contract - provision for termination by notice - provision restricting employee's conduct after such termination - repudiation by employer - acceptance of repudiation by employee - contract thereby discharged - no termination as provided by contract - employer not entitled to enforce restrictions - CONTRACTS - general contractual principles - construction and interpretation of contracts - restraint for "a period of 12, 24 and 36 months" after specified event - held void for uncertainty

FAMILY LAW- de facto relationship - adjustment of interests of parties in property - respective contributions of parties - the Court should not be diverted from the clear words of the statute, which looks to past contributions actually made by the parties.

REAL PROPERTY - claim for contribution for improvements carried out on property – equitable accounting – defendant conceded that plaintiff entitled to claim contribution for reasonable value of work he personally performed – plaintiff entitled to contribution from defendant for his expenditure and for expenditure saved by plaintiff’s personally performing work to the extent the expenditure made or saved added value to property – question whether plaintiff entitled to contribution for work done personally not decided in light of defendant’s concession - AFFIDAVITS - obligation of deponents to tell the whole truth

GUARANTEE - whether discharged because guaranteed loan replaced by different loan - or because of material change in borrower's obligations - on facts, not discharged - no question of principle.

MORTGAGES - mortgages and charges generally - rights and liabilities of mortgagor and mortgagee - mortgagor seeks order setting aside default judgment for possession - draft defence shows no viable grounds of defence - application dismissed

CORPORATIONS - voluntary administration - deeds of company arrangement - whether landlord's claim to future instalments of rent extinguished by lessee entering into deed of company arrangement

CRIMINAL LAW – sentence – indictment for murder, plea of guilty to manslaughter on the basis of substantial impairment – crown accepted in full satisfaction of indictment – sentence imposed

CRIMINAL LAW - appeal from interlocutory decision of magistrate - application for permanent stay of proceedings refused - issues of double jeopardy, delay and health - no error of law

ESTOPPEL – per rem judicatam – defence by way of set-off – judgment for plaintiffs on their claim – whether defendant estopped from maintaining cross claim - construction of offer of compromise. - ESTOPPEL – issue estoppel – whether plaintiff estopped from raising defence of payment based on original claim after judgment on that claim pursuant to accepted offer of compromise.

PROCEDURE - judgments and orders - amending, varying and setting aside orders – motion for additional order – motion dismissed. - SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicant – order made to give additional provision – order sought to reopen to seek order under Family Provision Act 1982 (NSW) s 15 to create discretionary trust to prevent access by creditors of the recipient to the legacy – reopening not permitted. - Family Provision Act 1982 (NSW) s 15.

PROCEDURE – judgments and orders – amending, varying and setting aside - application to set aside judgment pursuant to UCPR r 36.16(2)(b) on the ground that it was entered in party’s absence – where second defendant had arguable and bona fide defence on the merits – where second defendant denied knowledge of the hearing date – where explanation for failure to attend satisfactory – judgment set aside

CRIMINAL LAW - Sentence - Manslaughter - Excessive self defence - Participation in affray in the knowledge that serious physical injury could occur - use of weapons as aggravating feature - plea of guilty in the week fixed for trial - a degree of provocation from victim - strong subjective circumstances.

Corporations. Application to set aside statutory demand under s459G of the Corporations Act. Absence of affidavit verifying demand in respect of a judgment debt claimed in the demand. Held that in circumstances not necessary for there to be an affidavit verifying the demand.

PROCEDURE - costs - agreements as to costs - whether costs of the proceedings includes costs of mediation - application of Civil Procedure Act 2005 - s 28

Procedure - costs - interest on paid costs - whether payable when matter settled by terms of settlement in conventional terms of judgment following trial - interpretation of terms of settlement

CORPORATIONS - managed investments - redemption of units - where trust terminated after making of request for redemption and before redemption completed - whether holders of relevant units entitled to redemption despite intervention of termination of trust - whether holders of relevant units participate with other holders in termination of trust - nature of redemption of units discussed

BANKS and BANKING – Bank sued Customer and Managing Director on balance of account after issuing and honouring Letters of Credit in 1998 – consideration of form and terms of General Banking Facility Agreements (GBFA) and Guarantee and Indemnity – HELD that some of GBFA and Guarantee documents gave rise to causes of action founded on a deed and time limit of 12 years had not run out – if the Bank had the benefit of several contractual promises to pay the same debt they could each be enforced subject to 6 year or 12 year limitation periods according as they were founded on simple contracts or deeds – consideration of operation of written acknowledgement (on which the Bank did not need to rely).

Vexatious litigant - claims not an abuse of process and prima facie ground exists for some claims, i.e. unlawful arrest, false imprisonment (part) and assault - no prima facie ground for negligence and malicious prosecution claims - defective and embarrassing draft further amended statement of claim - needs to be redrawn

MORTGAGES - mortgages and charges generally - claim by mortgagee for possession of land following default by mortgagor - section 170 of the Conveyancing Act 1919 - error in postcode - service of notice given under Conveyancing Act 1919 effected - Consumer Credit Code - form of declaration given - Regulation 10 of the Consumer Credit Regulation 1995 - construction of section 11(3) of the Consumer Credit Code - plaintiff entitled to rely on defendant's declaration that purpose of loan was investment purposes - purported payment by bank cheque - plaintiff not bound to accept such payment - no estoppel or waiver of plaintiff's rights under the mortgage established - order for possession

[CONTRACT] - Whether plaintiff suing for debt or damages - whether plaintiff has proved defendant still indebted to it - appropriate quantum - [INTEREST] - Whether interest should be awarded

Criminal law - charge of doing act interfering with crew member of aircraft - common ground that meant interference with performance of crew member's duties - Crown relied on course of conduct - particular reference to three episodes in conduct - whether capable of interfering with crew member - could do so although no physical impedence - two episodes could interfere with crew member, third could not - difficulty flowing from reliance on course of conduct - need for careful explanation to jury - real risk that jury would understand that could convict if satisfied of third episode alone - open to convict on basis of other episodes - not appropriate to apply proviso - conviction quashed, new trial ordered.

CRIMINAL LAW - Particular offences - drug offences - importation of marketable quantity of border controlled drug - appeal against sentence - whether notional starting point of sentence manifestly excessive - leave to appeal granted, appeal dismissed

CRIMINAL LAW — Sentencing — parity of sentence with sentences of co-offenders — sentencing judge’s findings of fact — co-offenders charged with different offences — apparent disparity the result of prosecutorial decisions

CRIMINAL LAW - appeal against sentence - supplying goods and services without disclosing undischarged bankruptcy - applicant in very poor health - whether sentencing judge failed to take into account relevant subjective circumstances - whether sentencing judge erred in respect of applicant's previous good character - appeal dismissed

APPEAL – appeal – proceedings to recover fees said to be due on wrongful termination of agreement – competing versions of making of agreement and its terms – ex tempore judgment – whether failure to give reasons for decision – extent of obligation to give reasons – adequacy of reasons - APPEAL – new trial – inadequate reasons – whether new trial should be ordered – whether evidence so compelling Court should not order new trial

PROCEDURE - miscellaneous procedural matters - other - notice of motion - defendant's children seeking to be joined as defendants to proceedings - question of standing - children not occupiers of property - section 63, section 65 and section 75 of the Supreme Court Act 1970 considered - interest in proceedings established - nature of duty imposed by section 8 of Farm Debt Mediation Act 1994 considered - personal interest raising from eviction from property established

PROFESSIONS AND TRADES - lawyers - duties and liabilities - negligence in advising clients - sublease of a unit in retirement village - duty to advise - duty of care owed - foreseeability and causation - damages - TORTS - negligence - general matters - solicitor negligence - damages - EVIDENCE - admissibility and relevancy - opinion evidence - qualification of witness

ADJOURNMENT – application by defendant for indefinite stay of proceedings -application based upon medical condition of the defendant – defendant suffering from stress related condition made worse by court appearances and legal proceedings - whether defendant fit to appear and respond to proceedings taken against her by the Attorney General seeking orders pursuant to s 84 Supreme Court Act 1970 that she be declared a vexatious litigant – whether defendant’s obligation to care for her disabled adult son was a further relevant circumstance supporting the application – medical evidence suggested defendant fit to appear and respond to proceedings – application refused

CORPORATIONS - winding up in insolvency - statutory demand - application for order setting aside - alleged off-setting claim - foreshadowed claim under s 52 of Trade Practices Act - where claim relates to events fully litigated in Queensland proceedings - where those events most unlikely to support s 52 claim - virtual certainty in any event of successful Anshun defence - off-setting claim not established - alternative claim of defect in statutory demand or genuine dispute about existence of debt - demand claims fixed sum as debt arising from judgment for specified amount together with interest for specified period up to judgment - no specification of rate of interest - no means of ascertaining amount or rate of interest - principal judgment sum nevertheless clear - no defect in demand - but dispute as to amount of debt beyond principal judgment sum - statutory demand reduced to principal judgment sum.

SERIOUS SEX OFFENDER – Interim Supervision Order – variation sought – breach of current order – arrest – variation refused – Bail granted – no issues of principle

[SPECIFIC PERFORMANCE] - Whether plaintiff has established partnership agreement - whether specific performance should be ordered [TRUST] - Whether express trust - whether declaration should be made - whether Trustee should be appointed for sale of Land

LANDLORD AND TENANT - agreement for lease - shop in new centre - subject to termination if Building Works not completed by stated date - what were Building Works and whether completed - not completed because did not substantially comply with development consent - no question of general principle - election or waiver not raised at trial - whether could be raised on appeal - could have been other evidence - should not be permitted on appeal.

CORPORATIONS - winding up - winding up in insolvency - application for order setting aside statutory demand - bulk of debt undisputed - defendant accepts that part of debt paid - plaintiff contends that there is "some other reason" why demand should be set aside - reliance by plaintiff on various matters indicating that plaintiff should be able to pay soon and going to prejudice and inconvenience to plaintiff if demand not set aside - such matters not related to "some other reason" ground

MORTGAGES - mortgages and charges generally - remedies of the mortgagee - claim for possession of land - CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - Contracts Review Act - whether contract unjust - borrower deferred to husband and signed documents without reading - claimed understanding that mortgage affected investment properties but not family home - whether lender adopted prudent lending practice - LoDoc loan - whether lender imprudent in acting on declarations of borrowers - whether pure asset lending - absence of evidence of contract being entered - inferences to be drawn in absence of witnesses

COSTS - assessment - costs incurred prior to bankruptcy - effect of discharge from bankruptcy on availability of statutory costs assessment procedure

CORPORATIONS - deregistration - reinstatement of registration - reinstatement effected by ASIC of its own motion - application for orders validating reinstatement, reinstating registration and validating acts during period of deregistration - no power for court to make any of these orders - where reinstatement is by ASIC of its own motion and not at direction of court, s 601AH(3) jurisdiction to make validating orders is not available - suggestion that law reform be considered

APPEAL– local court decision – speeding offences – mistake as to applicable speed limit – held mistake of law not mistake of fact

TORTS - negligence - injury to tenant - defect in common property - apportionment of liability between body corporate and lessor's agent.

PROCEDURE – Costs – Calderbank offers by plaintiff – Whether unreasonable for defendant not to have accepted them.

PROCEDURE - miscellaneous procedural matters - other matters - exercise of discretion to extend time for service of writ - factors relevant to exercise of discretion - where limitation period for underlying action had expired - where deliberate delay in service - influence of litigation funder who undertook to provide the necessary funds to pursue the defendant. - PROCEDURE - miscellaneous procedural matters - other matters - policy considerations - just, quick and cheap resolution of proceedings - objects of case management - avoidance of delay.

CORPORATIONS - winding up - winding up in insolvency - statutory demand - application for order setting aside -plaintiff alleges genuine dispute about existence of debt - no plausible contention shown - no matter of principle

PROCEDURE - costs - proceedings by councillor to set aside findings of conduct committee and resolutions of council - subsequent rescission by council of resolutions - plaintiff files motion purporting to seek leave to discontinue proceedings - whether rescission resolutions by council amounted to substantial success by plaintiff in proceedings - whether plaintiff entitled to costs order - adjustment of costs orders having regard to conduct of parties.

CONTRACTS – general contractual principles – whether there was a concluded contract (a management agreement), subject to formal documentation categorisation – whether repudiated by defendant – consideration as to damages if repudiation had been established – whether agreement to establish a business was performed – cross claim for alleged breaches of the management agreement

[COSTS] - Concurrent proceedings - complex multi-issue, multi-party case - nominal damages - costs of first set of proceedings as finalised

PROCEDURE – Supreme Court procedure – New South Wales – application for leave to appeal against refusal of leave to amend pleadings – cross-claim by applicant to recover damages for delay of works on hotel premises – applicant leased premises to third parties – claim for loss of rent by reference to lease – application to add alternative claim based on loss of profits – whether amendment lacked factual foundation – whether claim for loss of profits not open due to lease

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error of law – Irrelevant consideration – Decision of Liquor Administration Board – Approval of transfer of poker machine entitlements – Gaming Machines Act s 19(3)(c) – Whether Board satisfied that the transfer was supported by each person who in its opinion had a financial interest in the hotelier’s license – Whether lessors of hotel were entitled to receive income derived from the business carried on under hotelier’s license where fixed rent paid – Lease contained option to renew clause with rent payable on the basis of poker machine turnover – No lease entered into in terms of option clause – Whether option to renew exercised – Whether lessee holding over under terms of lease – Whether agreement for lease entered into in terms of option – Whether conduct of parties precluded any claim for specific performance of any such agreement for lease constituted by exercise of option – Functions of Liquor Administration Board assumed by Casino, Liquor and Gaming Control Authority

SUCCESSION - family provision and maintenance – deceased left estate to four daughters – no provision made for widower – half interest in matrimonial home comprised bulk of the estate – whether provision for widower inadequate – whether any orders for proper provision should be made – relevance of alleged disentitling conduct – held that provision for widower inadequate – neither isolated incident of domestic violence nor instances of hurtful comments amounted in the circumstances to disentitling conduct or warranted reduced order for provision – provision ordered by way of Crisp order.

PROCEDURE - Costs - Indemnity costs – where defendant succeeded in part and where its unsuccessful contentions were not unarguable – whether defendant persisted in an unreasonable defence – Held: defendant’s conduct not unreasonable, plaintiff not entitled to indemnity costs – where costs increased by issues on which plaintiff failed – whether plaintiff should not recover all of its costs - Held: defendant should not be liable for costs to the extent they were increased by issues on which plaintiff failed.