Cases and authorities

LOCAL COURTS – appeal on question of law pursuant to s 73 of the Local Courts Act 1982 – whether magistrate failed to give adequate reasons for decision to award damages for loss of rent following damage to premises by tenant – whether evidence capable of supporting findings – no error of law – whether award of damages for loss of rent for a small period when landlord entitled to receive rent from another tenant amounted to double counting and an error of law – error of law found – judgment varied pursuant to s 75(a) Local Courts Act 1982.

Statutory demand signed by one trustee/creditor only where loan agreement with two trustees/creditors - affidavit accompanying demand silent on the issue of authority and no evidence as to delegated authority of trustee creditor who made the affidavit deposing to debt - demand set aside.

REAL PROPERTY – Torrens title – unilateral severance of joint tenancy – (NSW) Real Property Act 1900, s 97 – where transfer severing joint tenancy lodged with Registrar-General after death of joint tenant – application by surviving joint tenant to restrain registration – whether joint tenancy is unilaterally severed only on registration of transfer – entitlement to property pursuant to right of survivorship operates independently and prior to registration – whether possible to sever joint tenancy in equity before registration – modes of equitable severance of joint tenancy – whether execution of transfer severing joint tenancy sufficient of itself to sever joint tenancy in equity – whether deceased had irrevocably done all things necessary on his part to sever the joint tenancy. - PROCEDURE – application for interlocutory injunction – Courts should attempt to determine questions of law on interlocutory applications where essential question is one of law – where facts uncontroversial.

APPEAL - Local Court Magistrate - Indemnity Clause

APPEAL - Local Court Magistrate - whether proceedings were settled

Supplementary reasons

CORPORATIONS - derivative action - application for leave to bring proceedings in the name of a company against controlling shareholders - whether applicant is acting in good faith - whether proposed proceedings are in the best interests of the Company - whether proposed proceedings involve a serious issue to be tried - leave granted.

EQUITY [215] – Trusts and trustees – The cestui que trust – Estate of cestui que trust – Right to call for legal estate or indicia of title – Entitlement to terminate trust – Rule in Saunders v Vautier (1841) 4 Beav 115 - SUCCESSION [163] – Wills, probate and administration – Construction and effect of testamentary dispositions – Generally – Changing, transposing, omitting or supplying words – Omitting words – Statutory power of rectification – Nature of power – Evidence to be furnished.

CORPORATIONS - winding up - statutory demand - whether genuine dispute as to existence of debt - where debt said to arise by operation of statute - whether conditions prescribed by statute for imposition of payment condition satisfied - plaintiff fails to show plausible contention that conditions not satisfied - extent to which question of statutory construction should be determined upon an application of this kind

CRIMINAL LAW - sentencing - supply prohibited drug - related summary offences of dealing with property reasonably suspected of being proceeds of crime - special circumstances - sentences not manifestly excessive

CONTEMPT – offensive language directed to magistrate in the course of refusal of a bail application – defendant suffering the effects of drug withdrawal superimposed on personality disorder with self-harming tendencies – defendant substantially disinhibited by the effects of diazepam administered whilst in custody – contrition and remorse demonstrated by unreserved apology to the Court and to the magistrate – declaration that defendant guilty of contempt – sentenced until the rising of the Court

Corporations law. Application to set aside statutory demand under s 459G of the Corporations Act. Genuine dispute about whether debt paid. Demand set aside. No matter of principle.

CRIMINAL LAW - Crown appeal against sentence - manslaughter - single head butt to victim - whether sentencing judge inappropriately confined considerations of general deterrence and retribution - young offender - compelling subjective circumstances - whether special circumstances were accorded too much weight - periodic detention - whether objective seriousness of offence required full time custodial sentence

TORTS – NEGLIGENCE – duty of care – foreseeability in 1961 to informed industry player of risk – bystander exposed to asbestos spray at building site for short period - BREACH – whether evidence capable of supporting finding – apportionment – whether unreasonable to allocate 65 per cent to employer with constructive knowledge 35 per cent to subcontractor with actual knowledge - EVIDENCE – expert opinion evidence – admissibility of expert opinion concerning the state of knowledge in 1961 - COSTS – indemnity principle – whether error to order contribution

Criminal law - manslaughter by unlawful and dangerous act - extended joint criminal enterprise - sentence - plea of guilty and assistance.

ADMINISTRATIVE LAW - judicial order under s.19 Children (Criminal Proceedings) Act 1987 that sentences of Plaintiffs be served as juvenile offenders - administrative order made for transfer of Plaintiffs under s.28 Children (Detention Centres) Act 1987 from juvenile detention centre to adult correctional centre - proceedings for judicial review - whether Plaintiffs entitled to procedural fairness before transfer - whether Plaintiffs were accorded procedural fairness - whether failure to have regard to relevant factors - whether regard had to irrelevant factors - whether transfer decision vitiated by inflexible application of policy - relief granted

CRIMINAL LAW – sentence – murder – intent to kill – shooting – drug related – not guilty plea – objective and subjective circumstances – above mid range of seriousness – sentence imposed.

JOINT VENTURE - expert to determine profit or loss of joint venture - date for striking accounts - profit or loss to be determined at the time of completion of the projects not the date of termination of the joint venture - whether referee's report should be adopted in part and conclusion drawn as to alleged profit of joint venture on basis of materials before referee - question referred back - no question of principle.

PUBLIC HEALTH - declarations sought under Smoke-free Environment Act 2000 - licensed club premises - whether part of club premises an "enclosed public place" - whether covered area and uncovered area of club premises a single "public place"

PROCEDURE [104] - Supreme Court procedure - Procedure under Rules of Court - Medical examination, inspection of property, etc - Whether denial by party that computer contains any relevant material conclusive.

Claims of unlawful interference with trade or business interests of plaintiff - Inducement of breach of contract of employment - Tort of conspiracy - Procurement of civil wrongs - Contravention of corporations law - Whether all or any of the causes of action should be struck out

CRIMINAL LAW - conviction appeal - ad hoc expert - identification of voice on audio tapes - admissibility of evidence - s 137 Evidence Act 1995 - meaning of "probative value".

CRIMINAL LAW - Sentence appeal - use of sentencing statistics - aggravating factors - prior criminal record - whether sentencing judge erred in the use which he made of prior criminal record - application of s 44 of Crimes (Sentencing Procedure) Act 1999 - whether some lesser sentence was warranted in law.

MANDAMUS - Dividing fence

ASSOCIATIONS AND CLUBS [28] - Officers, trustees, servants and committees - Removal - Purported removal of president invalid.

COSTS – Appeal –appeal incompetent – leave to appeal refused – costs – no question of principle.

APPEALS – Appeal by way of rehearing – Question of fact – inference from undisputed written evidence – Whether necessary for appeal court to find error – Discussion of principles. Supreme Court Act 1970 (NSW) s 75A - SUCCESSION – Informal document – Whether document purported to convey testamentary intentions – Whether deceased intended document to be his will. Wills Probate and Administration Act 1898 s 18A

COSTS – appeal – offer made – indemnity costs sought – offer involved each party bearing own costs – not comply with Rules – not intended to have effect otherwise than in accordance with rules – no indemnity costs – order for reasonable costs below – order for interest on costs paid.

CRIMINAL LAW - offence of negligent driving occasioning grievous bodily harm - plea of guilty on first return date - Magistrate questions plea of guilty - plea of guilty not rejected or withdrawn - prosecutor seeks adjournment - application for adjournment refused - charge dismissed - error of law established - element of negligence in negligent driving - effect of plea of guilty

JUDGES – disqualification – apprehended bias – conduct of judge in relation to litigant in person

ADMINISTRATIVE LAW – revocation of parole by Parole Authority – insufficiency of reasons – wrong test – difference between test for grant of parole and revocation – difference between “unlikely to be able to adapt” and “inability to adapt” – no evidence – orders issued.

Corporations Law. Application to wind up company in insolvency by substituted creditor. Application for leave under s 459S as no application to set aside statutory demand. Application refused. Company wound up.

CRIMINAL LAW – Drug offences – Importation of commercial quantity of a border controlled precursor - CRIMINAL LAW – Drug offences – Being knowingly concerned in the importation of a prohibited import - WORDS & PHRASES – “imports” – Criminal Code Act 1995 (Cth), s 307.11(1)

CRIMINAL LAW - practice and procedure - incidental powers - interim detention order - whether court's discretion to make such order should be exercised

Appeal from Local Court after extended hearing - Concreting work at Greenacre - No written contract - No contract of insurance - Non compliance with ss 7, 92 of Home Building Act 1989 - Application of ss 10 and 94 - quantum meruit claim - correct basis of assessing damages - must be principled and not at large

Civil contempt - Breach of Mareva Injunction - Payments out of solicitors trust account - Criminal standard of proof - Differences in procedure still exist between civil and criminal contempt proceedings - Characterisation of civil and criminal contempt - Ambiguity in Court orders to be interpreted in favour of defendants - Money paid into solicitors trust account by third parties becomes an asset of the defendants - Unconditional gift - Quistclose or purpose trust not established - Mental element involved in contempt - Breach must be deliberate and not casual, accidental or unintentional

COMMON LAW - appointment of a tutor under Part 7 of the Uniform Civil Procedure Rules - inherent jurisdiction

COMMON LAW - declaratory relief - exercise of statutory powers and/or duties of police in maintenance of COPS system - no reasonable cause of action - power to strike out proceedings - police officers' immunity from liability in negligence - limitations on discretionary relief

Criminal law - Sentencing - Robbery - Threatened use of force not an aggravating factor - Mental illness - Sentence for robbery manifestly excessive - Crown appeal - Sentence manifestly inadequate - Overall sentence appropriate.

Criminal law - Sentencing - Commonwealth offence - Breach of trust by co-offender - Parity - Application of principle of totality to co-offender's sentence - Justifiable sense of grievance.

TORTS - NEGLIGENCE - DAMAGES - damages for personal injury pursuant to Motor Accidents Act 1988 (NSW) – whether award for past and future care manifestly excessive – whether cross-appellant’s future care needs should have been assessed on commercial, as opposed to gratuitous, basis. - EVIDENCE – whether judge erred in rejecting expert evidence

COSTS - plaintiff defamed in two publications - interest on damages - assessment of appropriate rate of interest - offer of compromise - application of rule 42.14 Uniform Civil Procedure Rules - costs regime under s 40 Defamation Act 2005 - whether defendant unreasonably failed to make settlement offer - whether plaintiff entitled to indemnity costs order

Family Law. Application for adjustment of property interests under s 20 of the Property (Relationships) Act 1984. Short relationship with no children. Order for adjustment made.

COMMON LAW - Local Court appeal - duty of care owed - vulnerability of local council

LOCAL COURT - application for leave to appeal against interlocutory order - appeal against conviction and sentence - drive whilst disqualified - "constitutional" challenge to legislation without substance

ADMINISTRATIVE LAW - appeal from Appeal Panel - assessment of damages for loss suffered by a corporation

INJUNCTIONS – interlocutory injunctions – application to restrain landlord from acting on notice to quit – family business – where daughter’s company had taken over business from father’s company – where father retained as general manager – where father’s company leased premises to daughter’s company – where plaintiff remained in occupation for four years after lease expired and parties had otherwise departed from its terms – where daughter had provided considerable funding to the business pursuant to representations from father – whether seriously arguable case for final injunction based on equitable estoppel – whether daughter had reasonable expectation that her company would be allowed to remain in possession of property until business established – balance of convenience – whether granting injunction would practically decide final relief – where plaintiff’s director offered undertaking to continue to pay rent until final hearing – whether plaintiff should be required to pay rent in arrears as a condition of being granted interlocutory relief – whether seriously arguable case for final relief based on alleged compromise of proceedings – policy considerations. - EQUITY – ESTOPPEL – extent to which expectation must be clear and unequivocal.

ADMINISTRATIVE LAW - Judicial Review - Appeal Panel - procedure - needs of the individual case - discretion and exercise thereof