Cases and authorities

TORTS – Negligence – Plaintiff injured by slipping on squashed orange at shopping centre – Occupier of shopping centre found liable – Occupier seeks contribution from insurer of cleaning contractor – Whether cleaning contractor owed duty of care to plaintiff – What was scope of that duty having regard to the terms of the cleaning contract.

PRACTICE AND PROCEDURE - Review of registrars' decisions - Costs - Suitors' Fund Act 1951, s 6 - "appeal" - "decision of a court" - "question of law" - Held section 6 of the Suitors' Fund Act 1951 does apply to a review of registrars' decisions.

Application for security of costs by Mr Palasty refused - stifling of proceedings - ground of Mr Palasty causing plaintiff's impecuniosity not established - dispute as to causes of action. - Fair Trading Act 1987, time limitation results in claim under that Act not being maintainable against Mrs Palasty - Limitation Act 1969 results in action for deceit not being maintainable against Mrs Palasty - Effect of Statutory provisions in circumstances of this case - Claims struck out

ADMINISTRATIVE LAW – Cabinet decision to impose special conditions on liquor licenses in respect of certain hotels including that of the first plaintiff – announcement of proposed government reform measures – proposals to reduce alcohol-related violence - LIQUOR LAW – Liquor Act 2007 – power to impose conditions on licences under provisions of the Act – by regulations made under the Act or by virtue of provisions of the Act – special conditions initially imposed by regulation to give effect to proposed reform measures and subsequently by amendments to the Act imposing conditions on licences listed in a Table to the amending provisions – Cabinet decision to implement reform measures announced publicly by Premier – decision of Cabinet to include plaintiff’s hotel on a list of 48 hotels to be the subject of new conditions – STATUTORY POWERS - whether decision subject to the requirements of procedural fairness – statutory amendments made under s.11(1)(b) of the Act imposing special conditions on the first plaintiff’s licence accepted as validly enacted – whether decision of Cabinet an incident of the exercise of the statutory power to impose conditions or an aspect of it – decision involved social and policy elements – interests of licensees, hotel staff, hotel patrons relevant to the decision to impose new measures – statutory power to amend Act and impose special conditions not subject to requirements of procedural fairness nor was the publicly announced Cabinet decision to place the first plaintiff’s hotel on the list subject to such requirements – whether decision of Cabinet “irrational” or “unreasonable” – Cabinet entitled to rely upon statistics produced by the Bureau of Crime Statistics and Research – not irrational or unreasonable

ADMINISTRATIVE LAW - decisions of Liquor Administration Board to approve a Gaming Social Impact Assessment and a Category A Liquor Social Impact Assessment - whether decisions beyond power - whether decisions properly applied legislation.

VENDOR and PURCHASER – time for completion – contract for sale of real property fixed settlement date and time for notice to complete – contract also provided for purchaser to have the property inspected to obtain reports reasonably required – purchaser’s mortgage broker repeatedly sought Vendors’ agreement to inspection by Valuer – approaches were fobbed off as inconvenient or unsuitable and Valuer could not obtain access – found that Purchasers’ inability to complete was caused by inability to obtain valuation in support of application for finance – Vendors’ breach of contract prevented Purchasers from complying with time for settlement and Vendors disentitled to rely on Purchasers’ failure – Notice to Complete and Notice of Termination constituted repudiation by Vendors – Purchasers recovered judgment for deposits and other moneys paid to Vendors as on total failure of consideration.

WILLS – s 63 Trustee Act 1925 – judicial advice - residuary gift in will to unincorporated association – named beneficiary not in existence under that name at date of death of deceased – whether existing association with different name misdescribed by deceased in her will – whether existing association is successor to the named beneficiary – question whether executor justified in distributing gift to existing association - question answered 'yes'

EVIDENCE - report of expert - report as to value of land - not commissioned or obtained for use in proceedings - no Schedule 7 acknowledgment - not served as required by rules of court - whether admissible under Evidence Act - held it is - but need for s 136(a) order to promote purpose of rules of court

[JUDGMENTS/ORDERS] - extent to which a judge may alter a judgment prior to entry of orders - application to re-open case after judgment but prior to orders being entered - [CONDUCT OF TRIAL] concession mistakenly made at trial - whether leave should be granted to withdraw concession

Criminal Law - sentence appeal - aggravated indecent assault by a non-parent - whether breach of trust - use of Victim Impact Statement to determine degree of harm - whether substantial - consideration of non-custodial alternatives.

CRIMINAL LAW AND PROCEDURE - Life sentences imposed prior to Sentencing Act 1989 - Total of three impositions - Two offences committed on the same occasion and the third whilst in custody serving sentence for the earlier crimes - Discussion of procedure and specification of facts when application for redetermination made - Crown appeal asserting inadequacy of resentence for second murder committed while in custody - Life sentence left in place but non-parole period of 25 years ordered - Crown contention that longer non-parole period should be set - 25 years congruent with pattern of redetermined sentences for offences of similar degree of criminality - Finding by trial judge that rehabilitation under way - Some ambiguity about finding at first instance - Assuming level of seriousness and facts contended by Crown intervention not required

CRIMINAL LAW - Sentence appeal - Break, Enter with Intent to Steal - Parity with co-offender sentenced in Local Court - Co-offender's sentence reduced on appeal to District Court - Manifest inadequacy - appeal dismissed

Criminal Law - sexual assault - discount for plea of guilty - remorse and rehabilitation under s21A - character

Criminal law - Crown appeal - Form 1 offences - Nominal punishment

Criminal Law - sentence appeal - manslaughter - extended joint criminal enterprise - whether inference of planning open - whether sentence manifestly excessive.

CRIMINAL LAW – sentence appeal – five counts of dishonestly obtain a financial advantage – early guilty plea – whether sentencing judge erred in failing separately to consider aggravating factors in relation to each individual charge – whether failure to take into account significant mitigating factors including mental illness, assistance given to authorities, contrition and rehabilitation - whether overall sentence manifestly excessive having regard to the degree of accumulation of the respective sentences – whether the trial judge erred in re-sentencing the offender - leave to appeal granted – sentences quashed – new sentences imposed

Criminal law - Intoxication - Sentence served on protection - Standard non-parole period - Grievous bodily harm

CRIMINAL LAW – sentence – murder – knife wound – fight in hotel – plea not guilty to murder, but guilt of manslaughter – admissions – sentence for murder

LOANS – a loan by way of vendor finance – under special conditions in Contract for Sale vendor occupied property under licence – express terms as to licence fee payable by vendor during term of licence or date of vacant possession, whichever is the later – remained in occupation beyond six month term – stock and car parts and other objects left on site – no vacant possession prior to clean-up of site in 2008 – undated Loan Agreement and undated Mortgage – executed some time after Contract for Sale - MORTGAGE – failed to specify loan secured – undated Loan Agreement did not purport to vary Contract for Sale the terms for repayment of which differed – could not be read together – Mortgage did not secure the monies the subject of the vendor finance loan - VENDOR – PURCHASE – what constitutes vacant possession – plaintiff’s (bankrupt vendor’s trustee in bankruptcy) claim for order for possession dismissed pursuant to Part 13 Rule 13.4(1)(b)

Construction of unique Personnel Agreement - no value as precedent

CRIMINAL LAW - murder - trial by judge alone - defence of mental illness

CRIMINAL LAW – appeal against severity of sentence – grounds for interference – whether sentence manifestly excessive – whether disparity in sentences between co-offenders – consideration of seriousness of offence and applicant’s substantial role in commission of offence – where appeal dismissed

CRIMINAL LAW – appeal against sentence – grounds for interference - whether sentence manifestly excessive – whether trial judge gave undue weight to the offence – consideration of sentencing guidelines – consideration of relevant principles – deterrence – seriousness of offence – where finding of special circumstances adequately taken into account in sentence – where appeal dismissed

CRIMINAL LAW – Application for leave to appeal against sentence – Charge of murder – Plea of guilty to manslaughter accepted on the basis of provocation – Whether sentencing judge erred in not taking account of psychiatric case and element of defence of another person – Whether sentence manifestly excessive.

COSTS – indemnity basis sought – no chance of success –primary judge has not dealt with argument that ultimately fails on appeal - COSTS – indemnity basis - entitlement on refusal of offer of compromise – genuine offer of compromise – reasonableness of rejection of genuine walk away offer

LEGAL PRACTITIONERS – Solicitors – duty to clients – asserted breach of retainer– fiduciary duty – conflict of interest - retainer for refinancing mortgage documents – whether solicitor should decline to act when become aware of destination of funds - TORTS – NEGLIGENCE – duty of care – whether solicitor has duty of care to third persons not clients of the solicitor to undertake steps contrary to the interests of the solicitor’s client - MISLEADING AND DECEPTIVE CONDUCT - Fair Trading Act 1987 (NSW) – Solicitor distributing investments contracts under instructions of client – nature representations made in investment contract – s 42

TORTS - Negligence - Appellant motor cyclist injured in collision with respondent's car door - Whether respondent negligent in opening his car door or in leaving it open

CONTRACTS - Whether oral agreement to accept responsibility for payment of invoices - Whether consideration furnished for appellant's guarantee - Trade Practices Act 1974 s 52 - Misleading and deceptive conduct - Contracts Review Act s 7 - Whether guarantee unjust

CORPORATIONS - investigation by ASIC - freezing order on assets of persons suspected of involvement in unregistered managed investment scheme - where ASIC seeking orders for payment of moneys to persons who invested in scheme - risk assessment and risk management - various factors considered

CORPORATIONS - application for interlocutory orders pending hearing of oppression suit - application by plaintiff for order restraining other parties from acting upon and giving effect to resolution of general meeting removing plaintiff as a director - where alleged defect is deficiency of one, two or three days in notice period of twenty-one days - application for order that company produce certain documents and give certain information to defendant - reliance on s 198F - section confers right of inspection only - apparent attempt to obtain discovery and interrogatories - where notice to produce already answered - application for order compelling trustee of unit trust to make distributions to plaintiff - where dispute whether plaintiff still a unit holder - interlocutory order would be in the nature of final relief

Appeal from decision of Associate Justice refusing leave to file cross claim - nature of appeal - error shown- operation of Civil Procedure Act 2005 - delay by first defendant not determinative - discretion to grant leave must be exercised in order to achieve the overriding purpose of Civil Procedure Act - balancing exercise required - default and delay must be considered, as well as parties' conduct otherwise in proceedings - refusing leave would not achieve the overriding purpose of Act because it would result in the real issues between parties not being put before the Court - appeal allowed - costs

CONTRACTS - unjust contracts - mortgage and loan contract - relevant circumstances - substantial loan obtained through mortgage broker - whether borrowers aware of true quantum and purpose of loan - whether unjust that lender failed to detect false information supplied to it - relief declined

CRIMINAL LAW – appeal against sentence – grounds for interference – whether – disparity in sentences between co-offenders – where objective criminality of co-offender of a higher order – overall sentencing outcome appropriate – consideration of relevant principles – totality – seriousness of offence – where appeal dismissed

Criminal Law - robbery in company with wounding - parity of sentence

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Held there was a genuine dispute and demand set aside.

CORPORATIONS - winding up - alleged insolvency - application for dismissal of winding up application on grounds of want of prosecution or abuse of process - whether plaintiff dilatory so as to justify termination of proceedings - whether shown that plaintiff's purpose is otherwise than to prosecute application to conclusion

CRIMIMAL LAW — Crimes Act s 178BB — Crown appeal against sentence — totality in sentencing — suspended sentences for multiple offences — discretion to dismiss the Crown appeal

CONTRACT – sale of shares in recruitment company – provision in agreement for payment of purchase price by two instalments – calculation of second instalment tied to company profit in the twelve months post-sale – whether purchaser entitled to reduce the second instalment by excluding items of income and including expenses – adjustment of contract price in accordance with terms of agreement

CONTRACT [17]- Plaintiff claimed that an agreement to make a will resulted in the deceased's property being held on constructive trust for the plaintiff- Presumption against intention to create legal relations in domestic arrangements not rebutted. ESTOPPEL [32]- Plaintiff claimed that the deceased induced the plaintiff to adopt the assumption that she would get half the deceased's property and that she suffered the detriment of selling her property- Claim fails on the facts. SUCCESSION [307]- Family Provision- Widow's application- Elderly applicant- Second marriage- Provision made for accommodation of plaintiff.

Applications under Criminal Assets Recovery Act

Criminal law - on-going supply of drugs - general deterrence - parity of sentence

DEFAMATION - defences - privilege - qualified privilege - privileged occasion - reciprocity of duty and interest - connection between defamatory imputation and privileged occasion - defamatory imputation concerning dishonoured cheques - DAMAGES - assessment of damages in actions for defamation – assessment of damages in actions for breach of contract

CRIMINAL LAW - Accused charged with murder - Inquiry into fitness to be tried - Accused unfit to be tried

APPLICATION - to cross vest action from New South Wales Supreme Court to Northern Territory Supreme Court - apprehended bias / embarrassment - application refused.

PRACTICE AND PROCEDURE - application for leave to use documents obtained for proceedings - release from implied undertaking

CRIMINAL LAW - sentence - plea of guilty by Shamouil to murder - pleas of guilty by David to common assault, accessory after the fact to murder

CHARITIES - Cy prés scheme - Holroyd FESPIC Fund - fund collected from Government Grants and public subscription for Holroyd FESPIC Games 1977 - athletics for disabled persons - surplus remained and Deed dated 28 July 1980 declared trust for travel of those wishing to participate in the FESPIC Sporting Competition for disabled persons - funds applied for travel to FESPIC Games in cities in Asia about every 4 years - travel assistance to disabled persons from Australia and the countries in Asia and Pacific Islands - International FESPIC Federation dissolved after 9th FESPIC Games at Kuala Lumpur in 2006 - trustees regarded successor body's objects and purposes as significantly different and wished to terminate the trust - proposed scheme (supported by Attorney General) to distribute to two bodies operating in similar field in New South Wales - consideration - whether general charitable intention - whether purposes charitable - size of fund and considerations of expediency - Cy prés scheme ordered

COMMON LAW - defences to claim for possession - undue influence by husband - second limb of Yerkey v Jones - whether unconscionable conduct on the part of the bank - whether contract unjust - partial volunteer - inferences to be drawn in the absence of a witness - pure asset lending

SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions – no question of principle

CROWN LANDS – Crown Reserves - whether Plan of Management binds only Reserve Trust or also binds occupiers – construction of Luna Park Plan of Management – standing of adjacent occupiers to claim injunction to enforce Plan of Management – discretionary considerations - TRADE PRACTICES – whether conduct was misleading and deceptive – whether conduct was “in trade and commerce” – whether conduct was causative factor in the relevant decision of the plaintiffs – whether injunctive relief should be refused on discretionary grounds – damages - NEGLIGENT MISREPRESENTATION – economic loss- whether developer owes purchasers or developers of adjoining land duty of care to avoid economic loss occasioned by inaccurate statements in development applications – whether breach of any such duty – whether any misrepresentation had causative effect on a relevant decision by a plaintiff – causation