Cases and authorities

INSURANCE – reinsurance – construction of underlying insurance treaty – “trade credit insurance” – whether supply of goods by financier on credit is within scope of trade credit insurance treaty - SALE OF GOODS – passing of property – intention of parties – characterisation of commercial arrangements – construction of invoices and bills of lading - WORDS AND PHRASES – “trade credit insurance”

TORTS - negligence - conduct of restaurant/nightclub - duty of care owed by proprietor to patrons - can extend to taking reasonable care to guard against injury from intoxicated, unruly or violent behaviour of other patrons - including criminal behaviour - depends on foreseeability of injury from the behaviour and control over it - on facts, duty of care was owed - on facts, was breached and was causation - desirability of discrimination in complaint of erroneous admission or rejection of evidence.

TORTS - motor vehicle accident - contributory negligence - admissibility of medical reports - whether order limiting effect of evidence pursuant to s 136 Evidence Act 1995 should have been revoked - whether sufficient evidence to establish contributory negligence.

COMMON LAW - criminal contempt - threats by solicitors to seek personal orders against opposing solicitor for costs thrown away and retainer costs - costs threats mixed with settlement offers - loss of client legal privilege - whether reasonable grounds for concluding privileged communications made in furtherance of alleged contempt - propriety of threatening to seek costs against opposing solicitor before conclusion of proceedings - COMMON LAW - inherent jurisdiction to punish summarily for contempt out of court - summary procedure - whether defendant should be directed to disclose evidence in advance of hearing

CRIMINAL LAW — Sentencing — no question of principle

Criminal law - sentencing - offences of supplying drugs - discount for assistance -special circumstances - totality - parity

CRIMINAL LAW — Sentencing — armed robberies — whether sentences manifestly excessive — no question of principle

CORPORATIONS – financial services and markets – disclosure – product disclosure statement – s1012A, s 1013D(1)(c), s 1013E Corporations Act 2001 (Cth) - CORPORATIONS – managed investment – issue of proscribed interest – unregistered scheme – s 601ED Corporations Act 2001 (Cth) - CORPORATIONS – financial services and markets – market misconduct and other prohibited conduct – misleading and deceptive conduct – representation as to effect of guarantee – s 947C(2)(b), s 947C(3), s 953A(1)(b)(ii) Corporations Act 2001 (Cth) – s 12DB(g) Australian Securities and Investments Commission Act 2001 (Cth) – s 53(g) Trade Practices Act 1974 (Cth) - PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under rules of court – parties - representative proceedings – “substantial common issue of law or fact” – Uniform Civil Procedure Rules 2005 r 7.4 (1)(a)(iii) - PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under rules of court – parties – representative proceedings – discretion to otherwise order that proceedings not be carried on as representative proceedings – common issues – legitimacy of “opt in” definition of group – access to justice – Uniform Civil Procedure Rules 2005 r 7.4(2)

REAL PROPERTY – Strata Titles – Recovery by owners corporation of contributions and expenses under s 80 of the Strata Scheme Management Act 1996 – Whether expenses include legal costs – If so, what legal costs may be recovered – Whether such costs must be claimed in the proceedings for recovery of contributions.

PROFESSIONS AND TRADES [168]- Lawyers- Costs- How far secured- Whether an unsecured creditor with a judgment debt can have monies owed to it paid out of court. REAL PROPERTY [18]- Joint tenancy- Severance- Where there is a surplus on the sale by a mortgagee of property held under joint tenancy, that surplus is held under joint tenancy.

Sucession. Family Provision claim by adult daughter. Estate left to four children. Other children did not put financial situation before the court. Held plaintiff should receive deceased's house. No matter of principle.

PROCEDURE - contempt - alleged contravention of permanent injunctions - construction of orders - CORPORATIONS - conduct relating to solicitation of investment in securities - "undertake" a "business" - content of such business

CONTRACTS – Employment – Equity – Restraint of Trade – Covenant by employee on termination not to engage in identified business and not to deal with clients for 30 months – Proscribed business identified by reference to potentiality for use of confidential information to employer’s detriment – Whether confidential information needed to be identified with precision – Whether “clients” included certain agents of the employer – Whether period of restraints excessive.

TORTS – Negligence – Economic loss – Damage to property and independently-caused economic loss – Economic loss caused by action taken by plaintiff in response to situation created by defendant’s negligence – Test of reasonableness – Whether loss of a kind that was foreseeable – Basis of calculation of damages. - PROCEDURE – Primary judge dismisses plaintiff’s claim but determines quantum of damages – Plaintiff appeals – Defendant challenges quantum of damages – Whether cross-appeal is correct procedure.

SERIOUS SEX OFFENDER - extended supervision order

EQUITY – equitable remedies – accounts and inquiries – whether defendant should be ordered to account to deceased’s estate for withdrawals made from deceased’s bank account – whether defendant owed fiduciary duties to the deceased – HELD – defendant acted as deceased’s agent, owed a fiduciary duty to keep accounts and should be ordered to account - EQUITY – general principles – undue influence and duress – whether defendant’s account that withdrawn amounts were gifts from deceased to or for the benefit of the defendant and/or to or for the benefit of the first plaintiff should be accepted – whether relationship between defendant and deceased gives rise to presumption of undue influence – whether presumption displaced by evidence – HELD – relationship such as to give rise to presumption of undue influence – presumption not displaced by evidence – account that withdrawn amounts were gifts not accepted.

Criminal Law - appeal against sentence - malicious injury with intent (s 33) - relevance of drugs and alcohol to objective seriousness of offence.

Criminal law -sentencing - offences of aggravated break, enter and steal, take and drive a conveyance (x2), malicious damage - totality - effect of imposing cumulative sentences upon overall non-parole period

Criminal law - sentencing - totality - partial accumulation of sentence - role as lookout - sentence not manifestly excessive

CRIMINAL LAW AND PROCEDURE - Interlocutory orders by judges of District Court - Challenge pursuant to s 5F Criminal Appeal Act 1912 - Three judges made various orders - No merit in challenges - No particular point of principle

DAMAGES - reassessment following principal judgment - costs

CRIMINAL LAW - Application to exclude evidence - Seizure of CD's without investigation as to their contents - Absence of belief of seizing officers - Retention by police of seized items after conclusion of criminal proceedings - Consideration of the ambit of matters relevant under s 138 Evidence Act 1995 - Importance of evidence to Crown case

CONTRACTS - particular parties - principal and agent - solicitor amended terms of contract for the sale of land without actual authority of plaintiffs - solicitor exchanged amended contracts with other party - solicitor had ostensible authority to exchange contract - binding contract came into existence between the parties - TRADE PRACTICES - misleading and deceptive conduct - whether plaintiffs entered into sale of land contract because of representations made as to future management fees and future value of property - whether reasonable grounds for representations - plaintiffs did not rely on representations as to future management fees - plaintiffs relied on representations as to future value of property - representations not mere puffery - plaintiffs entitled to rescission of the contract and return of the deposit from the first and second defendants - CONTRACTS - unjust contracts - Contracts Review Act - plaintiffs' entry into contract induced by misrepresentations - contract is an unjust contract - if necessary, order for rescission pursuant to the Act

CORPORATIONS - winding up - statutory demand - application for order setting aside - debt for costs in other proceedings ordered to be paid forthwith - whether substantial and genuine claims in those other proceedings against party with benefit of debt for costs is "offsetting claim" - whether statutory demand an abuse of process

EVIDENCE – admissions – application to withdraw admission in Scott Schedule – general principles

CONTRACTS – general contractual principles – construction and interpretation of contracts – commercial lease – meaning of ‘general advertising structure’ – advertising need not be the sole or principal purpose of the erection of the structure - SET-OFF – equitable set-off – commercial lease – whether breach of exclusivity clause was so closely connected with obligation to pay rent that it would be unjust for the lessor to recover rent without deduction – breach of exclusivity clause did not diminish the value of the lease – insufficient for set-off that competing liquidated claims arose under the same instrument – no set-off

COSTS – offers of compromise – indemnity costs – whether letters contained offers of compromise – invitation to abandon cross-claim – offer to accept judgment on cross-claim without costs order – invitation to enter into release and indemnity – time allowed for acceptance - COSTS – scope of leave given to challenge costs orders - PROCEDURE – entry of judgment – procedure for variation of orders – oral application – power of Court to vary orders after entry – whether order determining claim for relief includes ancillary or consequential relief – Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.16

Mortgage - signatures of one joint tenant forged by the other joint tenant on loan agreement and mortgage - whether money was advanced pursuant to the mortgage and loan agreement - service of s 57(2)(b) notice on innocent party - real property - effect of registration of forged mortgage - extent of the mortgagee's interest in the property - whether relief under Contracts Review Act and Consumer Credit Code - entitlement of innocent party to compensation from the Torrens Assurance Fund

CRIMINAL LAW - parole - s 155 Crimes (Administration of Sentences) Act 1999.

COSTS - succession - family provision - claims by three adult children - each claim unsuccessful - whether costs should be ordered against any unsuccessful Plaintiff - whether the executor is entitled to look to estate for her costs - conduct of executor

ENERGY AND RESOURCES – electricity – electricity providers, authorities and undertakings – whether presence of electricity infrastructure on private land constituted trespass – whether infrastructure lawfully installed by Sydney County Council under Municipal Council of Sydney Electric Lighting Act 1896 and/or Public Works Act 1912 - whether EnergyAustralia had lawful authority to maintain presence of infrastructure under Electricity Supply Act 1995 – HELD – no trespass as infrastructure lawfully installed and maintained on land. - - CONTRACTS – general contractual principles – offer and acceptance - whether parties entered binding contract obliging EnergyAustralia to remove infrastructure – whether agreement reached by which parties intended immediately to be bound – HELD – no contract formed – no agreement reached – no objectively ascertainable intention immediately to be bound. - TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – whether representation made as to future removal of infrastructure – whether representation in course of without prejudice settlement negotiations was made in trade or commerce – whether reasonable grounds existed for making of representation – whether any damage suffered by reason of the misleading and deceptive conduct – HELD – representation made in trade or commerce – no reasonable grounds for making representation – no damage suffered by reason of the misleading and deceptive conduct

COSTS - offer of compromise - "walk away" offer made - offer not accepted - whether exceptional circumstances established by offerees.

ADMINISTRATIVE LAW - appeal - claim against Fidelity Fund - the role of the Law Society in appeal proceedings - Hardiman principle - Law Society's proper role that of active contradictor - whether provisions of the Legal Profession Act 2004 applied to appeal - merits of appeal - criminal enterprises - money received in course of solicitor's practice - trust money - default by solicitor - whether plaintiff ought to have known of illegality - appeal upheld - costs

PRACTICE AND PROCEDURE - application under rule 12.7 Uniform Civil Procedure Rules - no issue of principle.

COSTS - indemnity action under s 151Z Workers Compensation Act - whether Offer of Compromise effective - cross-claim - whether cross-defendant should contribute to plaintiff's costs.

Criminal law - aggravated robbery - consideration of parity - sentencing judge provided with inaccurate information concerning co-offender's sentence

CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice – particular circumstances involving miscarriage – improper admission or rejection of evidence – illegally obtained evidence – whether evidence obtained in consequence of a controlled operation should be admitted notwithstanding subsequent finding that the authority approving the operation was invalid – where law enforcement officers had bona fide belief in the lawfulness of the controlled operation – judicial discretion to admit or exclude evidence

BUILDING AND CONSTRUCTION – Adjudication under (NSW) Building and Construction Industry Security of Payment Act 1999 – claim that Adjudicator’s decision invalid – that adjudicator did not evaluate claim under s 27(2A) – whether under guise of s 27(2A) lost profit on termination can be recovered – whether adjudication application advanced a matter outside the scope or ambit of the payment claim – whether adjudicator failed properly to evaluate s 27(2A) claim – where one party does not make a contention as to quantum to adjudicator

JUDGES AND COURTS - judicial obligation to make findings of fact on proved evidence - assumption by a judge that his/her knowledge of any particular matter is correct judicial review – procedural fairness - EVIDENCE - witnesses - assessment of the credit of a witness- assessment based on wrong factual findings - EVIDENCE - witnesses - assessment of the credit of a witness- reliance on individual judge’s own medical knowledge

EQUITY [340]- Whether an injunction preserving assets of a notional estate against the possibility of a successful Family Provision claim should be granted against defendants in Ireland- Defendants innocently received assets from deceased before he died- Equity will not make an order where no realistic chance of enforcement against the person- Injunction would not be enforceable in Ireland- Irish defendants have no connection with jurisdiction. SUCCESSION [290]- Family Provision- Claim of daughter against notional estate- Deceased gave defendants money prior to his death, thus notional estate- Injunction sought against Irish defendants to preserve assets constituting part of notional estate against the possibility of a successful Family Provision claim.

PLEADING - Statement of Claim - Multiple deficiencies - Insufficient identification of justiciable claim to order repleading

EVIDENCE - opinion evidence - expert's assumptions included a number of market analysts' reports - assumptions challenged by tender of other analysts' reports - not necessary first to put the other analysts' reports to expert - discretionary refusal to admit the other analysts' reports flawed by failure to assess probative value.

CRIMINAL LAW - sentence - plea of guilty to murder - planned killing - misguided belief in self-protection - assistance to authorities, both past and future

PROCEDURE - proceedings in respect of trust property - circumstances divide beneficiaries into two classes - appointment of representatives of classes - matters relevant to choice of representative - CORPORATIONS - registered managed investment scheme - proceedings by responsible entity seeking to establish validity of alterations to constitution - need for defendant contradictors - where persons interested in units fall into two classes - appointment of representatives

Practice and procedure - Security for costs - Power to order security for costs - Principles - Following commencement of proceedings by Public Transport Ticketing Corporation seeking damages for breach of contract, Integrated Transit Solutions and ERG Ltd file cross claims - Plaintiff seeks security for costs - Examination of restructure of ERG - Whether restructure constituted a manipulative device designed to insulate ERG from litigation risk exposure - Whether defendants’ cross-claims appropriately characterised as essentially ‘defensive proceedings’ - Discovery - Defendants' application for additional discovery to be allowed

CRIMINAL LAW – conviction appeal – competence of counsel – directions to jury – rule 4.

Criminal law - sentencing - Crown appeal - offence of maliciously inflict grievous bodily harm with intent - gang attack - departure from standard non-parole period - inappropriate double counting - rehabilitation - considerations of personal and general deterrence - sentence manifestly inadequate

CRIMINAL LAW – jurisdiction, practice and procedure – pleas – general pleas – plea of guilty – whether conviction for an offence was a miscarriage of justice where plea of guilty entered under a belief as to the law applicable to the case which was subsequently overturned - sentence – cumulative sentences – whether accumulation of sentence just and appropriate – relevant factors – hardship to others – whether medical condition of convicted person’s wife and subsequent impact on children constituted exceptional circumstances

CRIMINAL LAW - Sentence appeal - Plea of guilty to Supply Large Commercial Quantity of Prohibited Drug - Parity - Whether sentence manifestly excessive - Hardship to family members and to applicant - appeal dismissed.

TORTS – negligence – duty of care – publicans and security firms – previous altercation between patrons on premises – whether duty of care is owed with regards to later altercations between patrons occurring off the premises – need for apprehension of risk to the patrons - EVIDENCE – rejection of evidence of a witness – failure to deal with written statement of witness who gives oral evidence–inferences to be drawn from failure to call a witness