Cases and authorities

CONTRACTS – EMPLOYMENT – REPUDIATION/TERMINATION – fixed term contract where defendant employee prematurely resigned before conclusion of fixed term of employment to work for competitor employer – where employer elects to affirm contract – whether employment contract repudiated by employee or terminated by mutual agreement – distinction between contract of employment and relationship of employer/employee – whether employment relationship terminated by resignation – whether plaintiff employer can reinstate employment relationship by affirming contract. - CONTRACTS – EMPLOYMENT – RESTRAINT OF TRADE – whether restraint of trade doctrine operates during contract of employment – whether restraint of trade clauses void – where employee on gardening leave – legitimate protectable interests – whether and for how long after end of actual employment restraints are reasonable – where employer continues to remunerate employee notwithstanding employee’s termination of employment relationship. - INJUNCTIONS – injunction enforcing restraint of trade – discretion to decline injunction to enforce a negative contractual provision – whether granting injunction amounts to requiring employee to render personal services – special services – whether special services involve element of public performance – where employer continues to pay employee – whether injunction should be declined on discretionary grounds – whether injunction would not protect legitimate interests of employer – whether damages adequate remedy – where contract provides for liquidated damages in event of premature termination by employee – where damages difficult to quantify – whether deterrent effect of granting injunction a relevant discretionary consideration – whether granting injunction would occasion hardship to employee.

SUCCESSION - family provision - claim by widow - lengthy marriage - matrimonial home is only significant asset - plaintiff given right of residence - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claims of other beneficiaries - claim of a widow is not automatically to be accorded primacy over all other claims.

CORPORATIONS - winding up - application to court to approve liquidator entering into agreement with obligations that may be discharged more than three months after it is entered into - creditor/contributory and liquidator enter into agreement for conduct of appeal by creditor/contributory - liquidator to pay creditor/contributory most of the company's benefits if appeal is successful - whether court should approve liquidator entering agreement

Stay pending appeal - Building and Construction Industry Security of Payment Act 1999

Serious sex offender - application by State of New South Wales for revocation of continuing detention order - Community Offender Support accommodation - accommodation available - requirement for electronic monitoring - stringent conditions of continuing supervision imposed.

CAVEATS - whether caveator had arguable case for interest claimed - interest under purported agreement creating security for debt - debt statute barred - morrtgage duty not paid on agreement - agreement unenforceable - extension of caveat refused

GUARANTEE and INDEMNITY - defence based on claim that nature of documents was not explained and was misrepresented - defence not believed, judgment for plaintiff - decision on facts.

Criminal law - sentence - application for leave to appeal against the severity of sentence whether error made in giving sufficient weight to applicant's youth - tension in sentencing where a juvenile commits a serious offence of violence

INJUNCTIONS – interlocutory injunctions – undertaking as to damages – whether undertaking should be enforced prior to final determination of proceedings – final determination highly material to whether undertaking should be enforced – question cannot justly be determined before final determination of proceedings - PRACTICE AND PROCEDURE – joinder of parties – whether a party can be joined as a plaintiff without its consent – proposed co-plaintiff not party to the contract in question – stay refused - PRACTICE AND PROCEDURE – pleadings – cross-claims – application for leave to file cross-claims – multifarious claims – leave refused in respect of matters that are embarrassing, outside jurisdiction, unconnected with first proceedings or for which the cross-claimants lack standing

CONTRACTS - breach of contract - damages

PRACTICE AND PROCEDURE – INJUNCTIONS – Not granted unless real threat of breach of plaintiff’s rights.

SUCCESSION [320] - Family provision - Principles upon which relief granted - Applications of children - Adult children generally – Relevant principles - Further provision made by way of a legacy for one daughter.

PROCEDURE [77], [480] – Supreme Court procedure – New South Wales – Jurisdiction generally – Stay of proceedings – Appeal contemplated – Relevant principles – Successful party able to repay judgment if appeal successful – Judgments and orders – In general – Statement of reasons for decision – Amendment of reasons before orders made.

WORKERS' COMPENSATION - permanent impairment - medical assessment - whether findings of impairment by Arbitrator relevant

NEGLIGENCE - solicitor - negligent advice - worker's alternative rights - loss of common law rights - causation - worker's hypothetical decision on receipt of proper advice - trial judge not persuaded worker would have elected to sue at common law

Insurance - Insurance Contracts Act - Directors and Officers liability - Insolvent trading claim under section 588 M Corporations Law brought by the plaintiff in his capacity as liquidator - Section 6 (4) Law Reform Miscellaneous Provisions) Act - Non-disclosure /misrepresentation - Relevant test that of the reasonable insured not the prudent insurer - Knowledge requires considerably more than “suspicion” or “belief” - Matter must be known to insured at the time to be a matter relevant and known to insured or a reasonable person to be relevant to the decision of insurer whether to accept the risk and if so on what terms - Legislative history of sections 21 and 28 of Insurance Contracts Act - Dangers posed by litigation proceeding through benefit of hindsight - Finding that had proper disclosure been made insurer would not have issued a policy without an insolvency exclusion - Terms of settlement reached by liquidator with directors of directors agreed to entry of judgment against each of them in the amount of $15,000,000, liquidator agreeing to receive far smaller amounts from directors presently - Terms of settlement include agreement by liquidator to discharge judgment if either the (1) proceedings terminate in favour of the liquidator or (2) liquidator reaches a compromise of the proceedings against insurer or (3) proceedings terminate in favour of the insurer - Finding that liquidator contracted for the entry of judgment but relevantly agreed not to enforce the judgment and agreed to discharge it in any event - Liquidator alleged to have approbated and reprobated - Section 588G (2) (b) of Corporations Law - Reasonable grounds for suspicion of insolvency - Belief in insolvency on the grounds of balance of probabilities not the test

Whether Court had jursidiction on claims in respect of cargo damage caused by allegedly defective lashings - Whether carrier entitled to an order pursuant to s 29(2) of the Admiralty Act - Whether ouster clause in bill of lading effective - Whether arguable case for a contractual lien and claim pursuant to s 4(3)(f) of the Admiralty Act Whether carrier's claim a proceeding on a general maritime claim based on damage claimed to have been caused to the ship by cargo due to alleged defect in packing supplied by freight forwarder - Whether proceeding is "proceeding on a maritime lien" pursuant to s 15 of the Admiralty Act and consideration of whether 'right in rem' available pursuant to s 17 of the Admiralty Act - Consideration of clauses 10(b), 11, 17 of BIMCO Liner bill of lading and Article IV rule 6 of the Hague Visby Rules

PRINCIPAL AND AGENT - attorney under power - use of power of attorney otherwise than for benefit of principal - whether principal had consented to such use - turns on own facts - no question of principle

Loan of money - No question of principle - Issues of fact

Criminal law - sentencing - Crown appeal - offences of break, enter and steal - sentence manifestly inadequate - repeat offending - small businesses - accumulative effect of aggravating factors - matters on Form 1 - consideration of discretion not to intervene - sentence manifestly inadequate

Interests in land - Judicial sale - Purchasers liens - Caveatable interests - s.43A(1) Real Property Act - Unstamped transfers - Purchaser for value without notice - Volunteers - Competing equities - Charges - Line between proprietary interests being mere equities and full equitable estates

Sentencing - murder - intent to kill but not premeditated - sentencing following successful appeal against earlier conviction

EQUITY [343]- Equitable remedies- Injunctions- Interlocutory injunctions- Undertaking as to damages- Calculation of damages- Court to offset gains against losses resultant from injunction- It is seldom just and equitable that a plaintiff bear the burden of damages not foreseeable from circumstances known at the time injunction was granted.

Family Provision application by widow under Family Provision Act. No competing claim. Consideration of disposition by plaintiff during her lifetime to her son. Order made for provision.

PARTITION - Statutory Trust for Sale s66G of Conveyancing Act 1919 - sale of Hai Welyki pine plantation owned by several thousand joint tenants of Lots - application by Trustees for sale for directions on payments and distribution methodology - application by one co-owner for directions for payment of its claims for rates paid and work done before and after s66G Order - consideration of claims based on contribution, constructive trust, implied contract - Trustees directed not to pay those claims.

COMMON LAW - Insurance - proceedings for possession - cross-claim for negligence and breach of Fair Trading Act 1987 made against solicitor - Application for leave to join LawCover as a cross-defendant to proceedings pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 - claims made policy - whether cause of action accrued prior to commencement of policy

DAMAGES – motor vehicle accident – whether damages awarded inadequate – credibility of plaintiff – whether primary judge palpably misused position as trial judge in finding on the basis of video evidence that plaintiff not severely physically and psychologically disabled – held – no - COURTS AND JUDGES – adequacy of reasons – whether substantial miscarriage of justice manifest from primary judge’s observation that plaintiff’s behaviour while giving evidence “bizarre” – held – no - LEGAL PRACTITIONERS – inadequacy of written submissions – wasted costs – plaintiff’s legal representatives to pay wasted costs incurred by their serious neglect

CONTRACT – formation of contract – informal contract for sale of equity swap business – whether term of contract that interest on margin loans was not being capitalised – whether agreement that sale would be at no loss to purchaser meant purchaser did not assume burden of paying interest capitalised on margin loan account – - CONTRACT – whether express or implied term that sale of equity swap business meant purchaser did not assume burden of paying interest capitalised on margin loan accounts – - CONTRACT – relevance of subsequent conduct to determination of terms of contract

CONTRACTS [120] - General contractual principles - Construction and interpretation of contracts - Other matters – Whether a term for the carrying out of a subdivision or the sale of certain lots was an absolute promise – Whether a term should be implied that the obligation imposed was only to use reasonable endeavours.

Family Provision. Application by defacto partner in respect of small estate. Order for provision of whole estate to plaintiff.

CRIMINAL LAW – appeal and review – evidence – ruling on admissibility and effect of evidence – whether interlocutory judgment or order – right of appeal – Criminal Appeal Act 1912 NSW, s 5F - CRIMINAL LAW – accusatory system of criminal justice – prosecution duties – proof of elements of the offence – conclusive evidence certificate – connection to facts in issue – Telecommunications (Interception and Access) Act 1979 (Cth) s 18(2) - CONSTITUTIONAL LAW – conclusive evidence certificate – whether usurpation of separation of judicial powers – scope to challenge illegality of method of obtaining evidence –permissible modification of judicial process – Constitution Act ss 71, 77 - CONSTITUTIONAL LAW – conclusive evidence certificate – whether usurpation of right to trial by jury – essential characteristics of a jury trial – scope to challenge chain of evidence – permissible modification of judicial process – Constitution Act s 80 - EVIDENCE – facts excluded from proof – provisions as to conclusive evidence – Telecommunications (Interception and Access) Act 1979 (Cth) s 18(2)

Crown appeal against inadequacy - one count malicious wounding with intent to cause grievous bodily harm - after trial - application of s 54B of Crimes Sentencing Procedure Act 1999 - identified errors in assessment of objective criminality - failure to find a matter of aggravation under s21A(2)(i) - overweighed matters of mitigation.

Crown appeal against inadequacy - multiple offences against s 66A and s 61M of the Crimes Act 1900 - after trial - application of s 54B of Crimes Sentencing Procedure Act 1999 - significance of prior good character and psychiatric condition

CRIMINAL LAW – COMMONWEALTH OFFENCES – sexual servitude offences – conduct of business involving sexual servitude of other persons – appellants convicted of offences against s 270.6(2) Criminal Code Act 1995 (Cth) – whether verdicts unreasonable or cannot be supported having regard to the evidence – whether facts alleged by Crown insufficient to establish the offence charged – whether no evidence or no sufficient evidence that appellants had the required fault element with respect to the offence – where fault element is knowledge of or recklessness as to the sexual servitude – s 5.4 Criminal Code Act - COURTS AND JUDGES – trial judge's directions to jury – whether miscarriage of justice occasioned by direction that jury could convict the appellants if satisfied accused were reckless as to the sexual servitude – where Crown referred only in passing to recklessness in closing address – procedural unfairness – where experienced counsel for accused did not object to direction at trial – rule 4 Criminal Appeal Rules – where limited objection made only as to trial judge's use of the expression 'wilful blindness' – whether use of that expression created a potentially misleading impression in the mind of the jury – substantive unfairness – whether s 270.6(2)(b) Criminal Code Act creates two distinct offences, one with knowledge and the other with recklessness as its fault element - APPEALS – whether open on appeal to a convicted person to take the point that there was no evidence of essential element of the charge – where point not taken in court below - STATUTORY INTERPRETATION – construction s 270.6(2) Criminal Code Act – extrinsic materials as aid to construction – s 15AB Interpretation Act 1901 (Cth) – new offence of debt bondage – s 271.8 Criminal Code Act – whether legitimate to use a statute which amends a previously existing statute to construe the statute in its unamended form – where earlier and later legislation do not deal with the same topic – where later legislation had not come into operation at the time of the events to which the present charge relates – where later legislation has work to do independent of the work done by the earlier legislation – where no ambiguity in wording of s 270.6(2) that needs to be clarified by reference to the later legislation - STATUTORY INTERPRETATION – statutory definition of sexual servitude – s 270.4 Criminal Code – condition of person in sexual servitude – person 'not free' to take particular actions – whether person in question must actually have taken those actions at any time in the past – where lack of freedom must arise 'because of' the use of force or threats – whether phrase conveys the notion of a causal relationship actually in operation – whether force or threats must be used by the accused – what constitutes a threat of detrimental action - STATUTORY INTERPRETATION – whether s 270.6(2) Criminal Code Act creates two offences with different fault elements or a single offence with alternative fault elements - WORDS AND PHRASES – 'not free' – 'because of the use of force or threats' –'detriment' – 'involves the sexual servitude of other persons' - CRIMINAL LAW – SENTENCING – whether overall sentences and non-parole periods manifestly excessive – objective seriousness of offence – subjective circumstances of offender – parity – sentence imposed on co-offender – whether regard should have been had to penalty applicable to offence of debt bondage – whether sentence falls within permissible sentencing discretion

TRUSTS – termination of trust – rule in Saunders v Vautier – property vested in interest but not in possession – interest was divested if beneficiary pre-deceased the resident for life – contingent beneficiaries not party to the deed – deed not effective to terminate trust - WILLS – construction and effect – acceleration of interests – surrender of right of residence – whether interests of beneficiaries accelerated - REMEDIES – equitable remedies – rectification – common intention and/or antecedent oral agreement – plaintiff and defendants had different intentions when executing deed – no clear and convincing proof - REMEDIES – equitable remedies – discretionary defences – mistake and hardship – plaintiff did not contribute to the mistake – any hardship would not amount to injustice

WILLS PROBATE AND ADMINISTRATION – Intestacy – Competing claim for administration by children of deceased and claimed de facto partner – whether de facto relationship established. - DE FACTO RELATIONSHIPS – Plaintiff lived in same accommodation as deceased for 8 years - both involved in hotel business - deceased had ongoing relationships with other women - conflicting evidence of relationship - whether claim of de facto relationship made out.

LEGAL PROFESSION - Costs - suspension of solicitor's practising certificate under s548 Legal Profession Act - succesful appeal under s549 - whether solicitor should pay Law Society's costs

COMMON LAW - personal injury - assessment.

COSTS – Calderbank offer – indemnity costs

COURTS AND JUDICIAL SYSTEM - judgments - alteration of judgments - additional judgment - NEGLIGENCE - duty of care - scope of duty - landlord and tenant - duty to keep premises in a reasonable state of repair - effect of Residential - Tenancies (Residential Premises) Regulation 1995 - clause 12.2 - NEGLIGENCE - breach of duty - landlord and tenant - duty to keep premises in a reasonable state of repair - reasonableness of landlord's conduct - relevant - factors - where landlord directed tenant not to use certain parts of the premises - REAL PROPERTY - leases - residential leases - whether oral agreement void - effect of Residential - Tenancies Act 1987

Negligence - mine owner contracted out loading from stockpile - stockpile collapse injuring contractor's worker - use of unsafe method of loading - mine owner's duty of care owed to worker - effect of worker's knowledge that method was unsafe - subsequent injury - causation of worker's present condition - incorrect to ask if mine injury was defining event - whether should be new trial generally or only as to damages.

PRACTICE AND PROCEDURE – INJUNCTION – Form of order – whether appropriate to restrain breach of covenant in the terms used in the covenant.

Contempt - failure to attend and give evidence under subpoena - admission of guilt - mental illness of the defendant - whether imposition of bond suitable - declaration of guilt sufficient

CRIMINAL INVESTIGATION - search warrants under NSW Crime Commission Act - investigation of alleged evasion of licence fees for distribution of tobacco products imposed by NSW legislation - legislation later declared unconstitutional - whether search warrants invalid

PRACTICE – leave to amend pleadings to raise new defence after reasons for judgment issued – irreparable damage to another party – leave refused - CONTRACT – legal practitioners – insurance – LawCover – “private legal practice” – liability for misleading and deceptive conduct – indemnity granted - DAMAGES – statutory liability for entire damage by more than one party – “equitable contribution” equality of contribution, not based on relative culpability.

CRIMINAL LAW: - Application for leave to appeal against sentence - sixteen counts of sexual assault - partial accumulation of sentence leading to aggregate sentence and effective non-parole period - finding of special circumstances reflected in individual sentences but not in aggregate sentence - no error

Criminal law - Sentence - Crown appeal - Federal offence - Money laundering - Sentence not manifestly inadequate

LANDLORD AND TENANT – Agreement for lease – Whether concluded agreement for lease contained in correspondence – Whether concluded agreement for long-term lease constituted by entry into possession and payment of rent – Whether landlord waived entitlement to rent increase. - SPECIFIC PERFORMANCE – Requirement of proof of readiness, willingness and ability.

ADMINISTRATIVE LAW – Administrative Tribunals – Administrative Decisions Tribunal Revenue Division – Administrative Decisions Tribunal Act 1997 (NSW) ss 119, 120 - APPEAL – nature of appeal – question of law – powers of the Supreme Court - TAXATION – PAY-ROLL TAX – exemptions – “two-person exemption” –approach to assessing Pay-roll Tax Act 1971 (NSW) s 3A(1)(f) - STATUTES – Administrative Decisions Tribunal Act 1997 (NSW) ss 113, 119, 120 – Migration Act 1958 (Cth) ss 430, 481 – Supreme Court Act 1970 (NSW), s 75A - WORDS & PHRASES – “affirm” – “question of law” – “question of law alone”