Cases and authorities

TRUSTS – EXPRESS TRUSTS – common intention – RESULTING TRUSTS – where house purchased in name of defendant brother who borrows part of purchase price – where plaintiff sister provides deposit, stamp duty and part of the purchase price – where plaintiff resided in property rent-free and paid rates, maintenance, repairs and improvements – where defendant paid land tax – where defendant made statutory declaration in aid of plaintiff’s residency application that plaintiff was the owner – where plaintiff repaid mortgage principal – whether there was a common intention that the house was to be purchased on trust for the plaintiff – whether presumption of resulting trust resulted – whether plaintiff had reimbursed the defendant’s expenditure – whether plaintiff or defendant liable for further advance on home loan account to pay $190,000 to parents – where defendant drew on home loan account to purchase a new Ferrari – whether plaintiff consented to the defendant’s purchase of Ferrari

CONFISCATION – property of criminal offenders – no reduction in amount recoverable under proceeds assessment order where assets forfeiture order – Criminal Assets Recovery Act 1990 (NSW) ss 22, 27, 28 - STATUTES – interpretation of statutes – interference with property rights – construction - WORDS & PHRASES – “value” – Criminal Assets Recovery Act 1990 (NSW) s 27(1)

INDUSTRIAL LAW – Unfair Contract – Finding of unfairness – Failure to identify terms of contract – Jurisdictional error – Proper approach to determining unfairness - PROCEDURE – Appeal to Full Bench – Finding of unfairness on basis different to trial judge – Jurisdiction of Full Bench – Procedural fairness - PROCEDURE – Powers of Full Bench on appeal – Industrial Relations Act 1996, s 106, s 191, s 192

WILLS, PROBATE AND ADMINISTRATION – removal of executrix – whether improper administration – whether executrix bore malice towards beneficiaries or their guardian – application dismissed – no question of principle

COSTS: Application for leave pursuant to s 237 of the Corporations Act 2001 (Cth) –awarded on a party party basis – order stayed until final determination of derivative proceedings

Criminal Practice & Procedure - Crown appeal - offence malicious damage to a house by fire - intellectual disability of offender - whether the damage "substantial" s 21A(2)(g) aggravating offence - whether criminal record a matter of aggravation - discount for late plea in potentially lengthy trial (20%) - error but discretion not to intervene.

Leave to appeal - construction of s 9 Freedom of Information Act - Tribunal member reversed by Appeal Panel - judge restored member's decision - important question - but Appeal Panel's decision aberrant - no substantial argument on appeal - leave refused - judge awarded costs against applicant - prospects that so unreasonable as to be outside proper exercise of discretion slight - leave also refused.

SERIOUS SEX OFFENDER - application for continuing detention order - preliminary hearing - application for order for examination by psychiatrists - order for examination made

CORPORATIONS - winding up - choice of liquidator - where voluntary administrator in office - his firm in Canberra had previously been the company's accountants - liquidator nominated by plaintiff based in Sydney but company based in Canberra - the court will appoint a liquidator to be nominated by the plaintiff who is based in Canberra

JUDGMENT – reasons – whether trial judge failed to consider expert evidence critical to appellant’s case – whether evidence critical - PRACTICE and PROCEDURE – failure of counsel to cross-examine opposing experts on evidence said to be critical to its own case – consequences of failure at trial to treat evidence as critical - EVIDENCE – expert evidence – failure to include matters said to be critical to one party’s case in joint expert report – whether such failure indicates material not critical – failure to cross-examine on matters said to be critical – consequences of such failures - MINE SUBSIDENCE - assessment of the extent to which property was affected by mine subsidence – failure to give reasons for assessment - unreasonable apportionment of damage

NEGLIGENCE – roads and drainage assets – tree with defective root system caused by waterlogged soil fell onto a car during a storm and killed motorist – liability of Council – whether duty of care owed by Council to inspect and maintain drainage assets - NEGLIGENCE – s 42 Civil Liability Act 2002 – analysis of evidence in relation to s 42 required – Wyong Shire Council v Shirt – analysis of magnitude of risk as compared to cost of protecting against risk required – s 45 Civil Liability Act 2002 – Council had no actual knowledge of drainage failure - NEGLIGENCE – liability of Sydney Water Authority – duty of care owed to install water main in such a way that did not compromise existing drainage system – foreseeable that a failure to do so could cause harm to surrounding area and trees – breach and causation found - JUDGMENTS – judicial obligation to give reasons extends to engagement with expert evidence – obligation to make findings – inconsistent findings of fact

BUILDING AND ENGINEERING CONTRACTS – payment claim – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 9, 13, 14, 17, 22, 32 - ADJUDICATION – whether error of fact or law sufficient to vitiate adjudication – whether adjudicator fulfilled statutory task – whether denial of procedural fairness - RESTITUTION – whether discharge of debt owed to third party

STATUTORY POWERS AND DUTIES – exercise of statutory powers and duties – conduct of administrative or public responsibilities – reasonableness – propriety of purpose - NEGLIGENCE – economic loss – proceedings against public authorities in exercise of statutory powers – negligence in performance of statutory powers and duties– whether decision so unreasonable that no public authority could properly consider reasonable exercise of power – Civil Liability Act 2002 s 43A – contributory negligence - DUTY OF CARE – existence of and scope of duty of care – whether duty to exercise care and skill in adhering to text and purpose of statutory scheme – whether breach of statutory duty – whether breach of duty to afford procedural fairness – whether relationship or position of vulnerability - ENVIRONMENTAL PROTECTION – environmental pollution – powers of Council in protection of environment – issuance of notice under Protection of the Environment Operations Act 1997 (NSW) s 91 – precautionary principle – Protection of the Environment Administration Act 1991 (NSW) s 6 - COSTS – indemnity costs – discretion as to indemnity costs – grounds for award of costs on indemnity basis – where inclusive costs offer – conduct of parties – unreasonable conduct – liability for costs of persons not party to proceedings - MEASURE OF DAMAGES (TORT) – assessment of damages for economic loss – mitigation of damages - WORDS & PHRASES – “suspicion”

Common law - order made previously by Judicial Registrar for separate determination of issues of liability and quantum of damages - application by plaintiff to rejoin liability and quantum - traumatic brain injury not stabilised - overriding purpose

LEASES – claim by tenant for injunction to restrain landlord from proceeding to recover possession of rural residential premises – relationship of solicitor and client between tenant and landlord - cross claim by landlord to set aside lease as unjust under the Contracts Review Act 1980 or as procured through breach of fiduciary duty or undue influence – special conditions prepared by tenant purporting to give ownership of part of property to him and otherwise rendering the obligation to pay rent illusory – special conditions unjust within s 7(1) of the Act – balance of lease enforceable according to its terms.

BAIL - charges of sexual assault and related matters - alleged offences in 1995 - applicant discharged at committal proceedings in 1998 - applicant in custody between 1997 and 2008 - complainant revives complaint to police in April 2007 - applicant charged in June 2008 - applicant subject to civil detention under Crimes (Serious Sex Offenders) Act 2006 from May 2007 to October 2008 - application in October 2008 by State of New South Wales for extended supervision order - interim supervision order made pending final hearing - s.9D Bail Act 1978 - exceptional circumstances - applicant subject to stringent conditions under interim supervision order - conditional bail granted

Crown appeal - Tendency evidence

CRIMINAL LAW - appeal against sentence - break and enter with intent to commit serious indictable offence in circumstances of aggravation - connection between mental illness and offending - finding of future risk to community - whether sentence manifestly excessive

SENTENCE - Crown appeal - principles of restraint - significance of respondent's psychiatric illness

APPEAL – COSTS – Appeal dismissed with costs – Respondent seeks indemnity costs on basis of manner of conduct of appeal and Calderbank offer – Case for indemnity costs not made out.

INTEREST – pre-judgment interest – whether s 137 of the Motor Accidents Compensation Act 1999 (NSW) limits or replaces entitlement of plaintiff to interest on damages, under s 100 of the Civil Procedure Act 2005 (NSW), in relation to motor accidents – whether judgment for amount exceeding offer by more than 20% demonstrates unreasonableness of offer – whether offer reasonable having regard to expert evidence about extent of plaintiff’s injuries – whether offer took into account chance that plaintiff would have been found contributorily negligent – whether claim for pre-judgment interest at trial – Civil Procedure Act 2005 (NSW) s 100 – Motor Accidents Compensation Act 1999 (NSW) s 137 - INTEREST – post-judgment interest – whether post-judgment interest awarded for amount of judgment outstanding because of increased award on appeal – Civil Procedure Act 2005 (NSW) s 101 - MOTOR ACCIDENTS – damages – pre-judgment interest – whether s 137 of the Motor Accidents Compensation Act 1999 (NSW) limits or replaces entitlement of plaintiff to interest on damages, under s 100 of the Civil Procedure Act 2005 (NSW), in relation to motor accidents – Civil Procedure Act 2005 (NSW) s 100 – Motor Accidents Compensation Act 1999 (NSW) s 137 - STATUTORY INTERPRETATION – purpose of including interest in award of damages and constraining award of interest – comparison of rules relating to awarding costs, where reasonable offer made, but not accepted, and awarding interest under s 137(4) – legislative history – Motor Accidents Act 1988 (NSW) s 73 – Motor Accidents Compensation Act 1999 (NSW) 137(4) - WORDS & PHRASES – “appropriate” – “reasonable” – “unreasonable”

CHILDREN - care proceedings - application for prerogative, declaratory relief - refusal by Children's Court magistrate to allow the mother to supply material to an expert for report - practice note no 30 - whether magistrate's leave required - effect of s105 Children and Young Persons (Care and Protection ) Act 1998

Correct Construction of Student Academic Misconduct Policy - Requirements of Natural Justice - Duty of Procedural Fairness - Whether required by primary decision maker - Meaning of Internal Appeal Provision - University withdrawing refusal to hear appeal - Whether subsequent hearing of appeal "cures" any prior defects or should lead to refusal of relief on discretionary grounds - Academic Misconduct capable of being regarded as serious - Appeal Committee erroneously including certain factors as bearing upon the seriousness of the offence - Relief limited to declarations.

Jurisdiction of District Court - equitable defence - s 6 Law Reform (Law and Equity) Act 1972 - does not include promissory estoppel

ADMINISTRATIVE LAW – CTTT appeal – appeal under s.67 against Tribunal decision on a question with respect to a matter of law – whether discretion under s.94(1)(A) of the Home Building Act 1989 properly exercised – whether relevant matters taken into account – whether irrelevant matters taken into account – in determining what was “just and equitable” - Tribunal had exercised discretion to award monies to builder on a quantum meruit basis – alleged error in exercise of discretion – whether failure to exercise discretion according to law and whether regard to irrelevant considerations – alleged error in permitting recovery of monies on a quantum meruit basis – whether absence of evidence to support quantum meruit claim – adequacy of Tribunal’s reasons for decision, findings implicit in conclusions in decision – no error of law – assessment of “benefit” and “acceptance of benefit” matters of fact for Tribunal’s evaluation - Tribunal had exercised its discretion to award costs – whether cl.20(3) of Consumer, Trader and Tenancy Regulation requiring “exceptional circumstances” before a costs order may be made – Tribunal’s reasons deficient but Court affirmed Tribunal’s decision under s.67(3) of the Consumer, Trader and Tenancy Act as an appropriate order.

REAL PROPERTY – caveats – application for extension of a caveat – serious question to be tried that plaintiff has a beneficial interest in the property of which the third defendant is the registered proprietor – balance of convenience – undertaking by third defendant not to object to lodgement of a caveat on the title of another property owned by a company she controlled – extension refused - EQUITY – equitable rights and remedies – tracing – interlocutory application for the extension of a caveat – prima facie case that first defendant misapplied partnership funds – funds used to reduce a mortgage debt owed by second and third defendants – second and third defendants were volunteers – serious question to be tried whether plaintiff is subrogated to the position of the mortgagee in respect of the moneys used to reduce the mortgage debt and retains in personam rights against third defendant despite registration

APPEALS – Right to appeal from decision of Consumer, Trader and Tenancy Tribunal – whether Tribunal has decided question with respect to a matter of law – role of s 75A of the Supreme Court Act 1970 (NSW) in respect of an appeal on a question of law – whether scope and operation of s 75A limited or excluded by s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) – whether s 67 permits Court of Appeal to determine present case or remit matter to Tribunal – whether Court of Appeal can make orders about constitution of Tribunal –Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ss 11, 67 – Supreme court Act 1970 (NSW) s 75A - CONSUMER, TRADER AND TENANCY TRIBUNAL – Nature of power conferred on Tribunal to make order terminating residential tenancy agreement – statutory criteria needed to be satisfied to engage power – matters which Tribunal can consider in addressing statutory criteria – circumstances of tenant and other circumstances of case – Residential Tenancies Act 1987 (NSW) s 64 - RESIDENTIAL TENANCIES – Order of Tribunal terminating residential tenancy agreement – whether tenant breached agreement by permitting premises to be used for manufacture and sale of illegal drugs – where tenant blind – where tenant occupies social housing premises – Residential Tenancies Act 1987 (NSW) ss 23, 57, 64 - STATUTORY INTERPRETATION – whether scope and operation of s 75A of the Supreme Court Act 1970 (NSW) limited or excluded by s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) – “has effect subject to any Act” – Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 67 – Supreme court Act 1970 (NSW) s 75A - WORDS AND PHRASES – “appeal” – “effect subject to any act” – “matter of law”

EVIDENCE – admissibility – expert evidence – valuation of property – joint expert report – whether valuation wholly or substantially based on expert’s opinion – Evidence Act 1995 s 79 - EVIDENCE – proof of loss – where substantial loss proved by plaintiff but evidence does not enable precise quantification – duty of court to do its best to quantify such evidence - FAMILY LAW – de facto relationships – adjustment of property interests – contributions – whether primary judge erred in evaluative assessment of parties’ non-financial contributions – whether primary judge’s evaluative assessment outside a reasonable range – Property (Relationships) Act 1984 s 20(1)(a), s 20(1)(b)

COMMON LAW - summary judgment - possession - registered proprietor - trustee and beneficiary - sale to pay outstanding debts - discretion

SERIOUS SEX OFFENDER - application for extended supervision order - preliminary hearing - application for order for examination by psychiatrists - order for examination made

EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records – In general – Evidence Act s 69 - Source of knowledge of asserted fact – Whether draft agreement business document.

Family Provision. Application under Family Provision Act by a daughter who was left nominal provision. Daughter's legacy increased. No matter of principle.

SUCCESSION - family provision - claim by adult son - Plaintiff given legacy of $10,000 - financial and material circumstances of the Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claim of the residuary beneficiary (only other child of the Deceased) - nature and extent of relationship between Plaintiff and Deceased.

SOLICITORS – breach of trust by solicitor - appointment of a receiver of a law practice – claim by receiver for funds held by official liquidator of company in possession of regulated property - whether receiver required to prove as an unsecured creditor – receiver entitled to funds to exclusion of creditors of the company

MEDICAL NEGLIGENCE - breast screening by mammography - content of duty of care owed by breast screening organisation to plaintiff - whether suspicious changes on 2006 mammogram - breach of duty - application of s 5O Civil Liability Act 2002 - causation - whether earlier intervention would have found tumour - whether plaintiff lost chance of a better outcome - damages - non-economic loss and loss of future earning capacity.

MORTGAGE – mortgagees right to order for possession under mortgage where signature of one joint tenant forged by the other joint tenant - estate and interest of mortgagors secured by the mortgage – registered proprietors of land were joint tenants – registered mortgage and loan agreement – both forged by one joint tenant – loan agreement provided for joint and several liability – REAL PROPERTY – effect of registration of forged mortgage – whether any moneys owing under the loan contract secured upon innocent party’s interest in property – whether personal equity in favour of the innocent mortgagor arose – whether relief under Contracts Review Act available depended upon establishing that a contract existed between the mortgagee and joint proprietor whose signature was forged on the agreement and mortgage – s.36(11) Real Property Act 1900 – that upon registration a dealing has “the effect of a deed duly executed by the parties who signed it” did not apply as the mortgage was not signed by the first defendant mortgagor

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute as to existence of debt - whether defect in statutory demand because basis of alleged indebtedness not sufficiently explained - where demand refers to earlier invoice and invoice was accompaned by explanatory letter - whether deficiency in affidavit accompanying statutory demand is "some other reason for setting aside" - deficiency is deponent's statement that source of his knowledge of matters deposed to is "my personal knowledge"

APPEAL - Local Court Magistrate - ESTOPPEL

SET ASIDE DEFAULT JUDGMENT

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether application served on company that issued the demand - application sent to address in Queensland that was not that company's registered office - applicability of Service and Execution of Process Act 1992 (Cth)

PROCEDURE - Separate question - whether order should be made - claim for possession of land and money judgment following alleged mortgage default - separate question proposed by Defendants concerning validity of notices served under s.80 Consumer Credit (NSW) Code - order for determination of separate question declined

APPEAL - LCM - guarantee

JUDICIAL REVIEW - procedural fairness – duty to observe – removal from voluntary office – probable damage to reputation – duty exists.

PRACTICE AND PROCEDURE – Calderbank offer – whether indemnity costs of trial should be ordered.

INJUNCTIONS – interlocutory injunctions – restraint of trade – rules of defendant Federation prevent rugby league footballers from playing for a certain national side – footballers would be engaged in trade even if not playing for the national side for reward – interest of the defendant in the credibility of international competition – restraint appears not to be wider than necessary to protect that interest – defendant’s rules more liberal than rules of other like bodies – balance of convenience is against allowing players with a weak prima facie case to play a fortiori where interim relief will effectively determine the claim for final relief – some delay – injunction refused

SERIOUS SEX OFFENDER - application for extended supervision order - application for interim supervision order pending final hearing - application for order for examination by psychiatrists - interim supervision order and order for examination made

PRACTICE AND PROCEDURE – COSTS – Civil Procedure Act 2005 (NSW), ss 56 and 99(1) – where orders of Court and directions not complied with as a consequence of conduct on the part of legal practitioners – whether costs were incurred by serious neglect or serious misconduct on their part within the meaning of s 99(1)(a) of the Civil Procedure Act – duty of barrister and solicitor under s 56(4) of Civil Procedure Act not to cause client to be put in breach of the duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and to comply with directions and orders of the Court – application of s 99(1) to employed solicitors