Cases and authorities

MORTGAGES - mortgagee serves notice under s.63 Real Property Act 1900 on tenant of mortgaged property - denial of default by mortgagor - application by mortgagor to suspend operation of notice on terms - "special circumstances" - serious questions to be tried - balance of convenience

EVIDENCE - admissibility - various matters relevant to admissibility of business records - provenance of foreign language original and reliability of English translation - PROCEDURE - discretion of court under Civil Procedure Act 2005 to dispense with the rules of evidence - whether discretion should be exercised

Criminal Law - sentence appeal - court attendance notice - particulars - parity

TORT – negligence – duty of care – professional driver injured while alighting from vehicle owned by Respondent – where Respondent was not the employer of Appellant driver – nature of duty of care owed by Respondent to Appellant – whether relevant difference between duty Respondent owed Appellant in its capacity as owner of the vehicle and the duty it would owe if it were the employer of the Appellant – whether trial judge erred in finding that duty had not been breached – whether trial judge gave sufficient reasons for judgment - PROCEDURE – pleadings – defective pleadings – statement of claim – Uniform Civil Procedure Rules 14.7 and 14.19 – material facts which must be stated for a claim under s 151Z(2)(c) and s 151Z(2)(d) Workers Compensation Act 1987 – necessity of pleading failure to pass permanent impairment threshold set by s 151H Workers Compensation Act – whether consensual abandonment of pleadings by the way the parties conducted their case - EVIDENCE – witnesses – whether effect of decision in Jones v Dunkel is to require or merely licence the drawing of inferences when a witness is not called - COSTS – consequences of failure of appeal on liability – whether deficiencies in defendant’s pleading would make any difference to usual order as to costs

TORT – negligence – duty of care – worker’s services made available to third party by labour hire company – nature of any duty of care owed by third party to worker – contributory negligence – whether worker took reasonable care for own safety – need to take into account practical opportunities for choice available to worker in deciding whether there is contributory negligence - CONTRIBUTION – joint or several tortfeasors – third party and employer of injured worker – employer paid worker compensation pursuant to Workers Compensation Act 1987 – employer brought proceedings against third party seeking an indemnity under s 151Z(1)(d) Workers Compensation Act – operation of s 151Z Workers Compensation Act – whether worker “entitled to take proceedings” to recover damages from third party – when amount recoverable in such proceedings is nil – s 151Z(2) Workers Compensation Act – assessment of proportionate responsibilities of employer and third party – to take into account causal significance of breach of duty of each and their culpability concerning any such breach of duty – application of s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – effect of contributory negligence on quantum of damages recoverable under Act – s 9 Law Reform (Miscellaneous Provisions) Act 1965 - STATUTORY INTERPRETATION – whether amendments to Part 5, Division 3 of Workers Compensation Act introduced by Workers Compensation Legislation Further Amendment Act 2001 applicable to assessment of quantum of contribution towards damages – construction of transitional provisions in clause 9, Part 18C of Schedule 6 Workers Compensation Act – where proceedings seeking damages were not begun before commencement of 2001 amendments – where all payments of compensation were made prior to commencement of 2001 amendments – whether right to indemnity accrued before commencement of 2001 amendments – whether reasonably certain that Parliament intended that amendments would apply to that right - WORDS AND PHRASES – “in respect of the recovery of damages” - LIMITATION OF ACTIONS – manner in which Limitation Act 1969 applies to employer's right of recovery under s 151Z(1)(d) and 151Z(2)(e) Workers Compensation Act of compensation paid

CRIMINAL LAW - Application to exclude evidence of burning of motor vehicle - Evidence of consciousness of guilt - Aspects of revelance under s 55 of Evidence Act 1995 - Principles relating to exclusion of evidence under ss 135 and 137 of Evidence Act 1995

CRIMINAL LAW - Practice and Procedure - Applications to set aside subpoena - Fishing expedition - Collateral challenge to warrants - Attempt to obtain materials in support of warrants

Serious sex offender - continuing detention order

PROCEDURE – costs – effect of decision of Court of Appeal that solicitor was retained without authority – whether solicitor should be ordered to pay costs of proceedings – basis on which such an order might be made – held – whether costs should be ordered matter for discretion – solicitor entitled to proceed on basis that issue whether he was properly retained was a matter for judicial determination – s 98(1) and (2) Civil Procedure Act 2005 – Uniform Civil Procedure Rules 2005 42.3. - PROCEDURE – submitting appearance – whether submitter exceeded proper role of submitting party – held – no. - PROCEDURE – whether appellate court can interfere with primary judge’s orders where all respondents file submitting appearances without determining whether orders affected by error – held – no. - LEGAL PRACTITIONERS – compliance with court directions.

Credit Facility Deed, Mortgage and Deed of Guarantee & Indemnity - Default under loan and borrower not able to meet its obligations and complete subdivision - No effective variation of Deeds - Lender not required to sell property before calling on Guarantor - Guarantor not paying - Claim of representation fails - Guarantor liable to pay amount claimed - Equititrust not proceeding against Boyle

SUCCESSION - family provision - claim by widow - financial and material circumstnaces of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claims of other beneficiaries (being the children of the Deceased).

EVIDENCE - admissibility - hearsay - exceptions to the hearsay rule - "interlocutory proceeding" - hearsay material tendered on voir dire inquiry into admissibility of other evidence - whether voir dire is "interlocutory proceeding" for the purposes of Evidence Act 1995, s 75

COLLATERAL CONTRACT – REPRESENTATIONS – Whether Defendant or his agent made representations by way of collateral contract or inducing Plaintiff to enter Deed – questions of credit – no question of principle.

CRIMINAL LAW - application for leave to appeal against sentence - intimidation with intent to cause fear of physical harm - applicant with unfavourable criminal record, on parole at time of offence - sentence manifestly excessive, given objective circumstances of offence

CRIMINAL LAW - appeal against sentences - pleas of guilty - aggravated sexual assault - aggravated indecent assault - counts on indictment were representative - whether uncharged criminal conduct taken into account as an aggravating feature - whether sentence manifestly excessive - appeal dismissed

CRIMINAL LAW – Crown Appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – exclusion of prejudicial evidence - whether exclusion eliminates or substantially weakens prosecution case – jurisdiction to hear appeal - jurisdictional question to be determined on the whole of the evidence in Crown case - CRIMINAL LAW – Crown Appeal - Evidence Act 1995 s 137 - exclusion of prejudicial evidence - whether probative value of evidence outweighed by prejudice – excluded evidence held to form part of a circumstantial case - exclusion unreasonable

SENTENCING - Crown appeal - domestic violence offences of detain for advantage, assault occasioning actual bodily harm and common assault - public justice offence of influence witness (victim) under s.323(a) Crimes Act 1900 - offender on parole - offences committed against victim in both community and in prison - attitude of victim to penalty - importance of specific and general deterrence - sentences manifestly inadequate

TORTS – Personal injury – Breach of statutory duty – Negligence – Construction Safety Act 1912 – Construction Safety Regulations 1950, Regs 73 and 74 – Painting contractor engaged to measure and quote – Whether “construction work” – Whether construction work carried out by owner – Whether owner in charge of construction work – Contractor falls from roof – Whether owner negligent.

PRACTICE AND PROCEDURE – Security for costs – Liquidator suing personally – General principles as to ordering security for costs against plaintiff liquidators – Litigation funding – Whether involvement of funder for commercial profit relevant to ordering security for costs.

PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct.

APPEAL – STAY OF JUDGMENT – co-lessee ordered to pay part of outstanding rent pursuant to interlocutory asset preservation order – whether stay should be granted pending appeal – whether stay in the interests of justice.

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - knife attack following brawl between two groups - multiple wounds inflicted by significant weapon - plea of guilty - prospects of rehabilitation - finding of special circumstances

CRIMINAL LAW - sentencing after trial - agree to receive benefit to improperly affect exercise of duty as Commonwealth officer (s.73 Crimes Act 1914 (Cth)) - publish documents in breach of confidentiality obligation (s.70 Crimes Act 1914 (Cth)) - offences of very high order of objective gravity - grossly improper conduct and abuse of trust by person in senior positions within Australian Taxation Office - custodial sentences appropriate

Injunctive relief - personal injury advertising by non-lawyers - Validity of Legal Profession Regulation 2005 - Ultra vires - whether excepting NSW litigation sufficient to comply - whether advertiser in legal practice - nature of relationship with lawyers on panel - nature of relationship with clients - whether representing that legal qualified - injunction granted

Conveyancing - Notices to complete - Whether original notice to complete ever efficacious to make time of the essence - Where a notice to complete specifies only a date for completion, whether recipient must complete by the end of the ordinary business hours on that day or has until midnight of that day in which to complete - Proper construction of provision permitting notice to complete to be issued within 14 days such time being deemed reasonable and sufficient and in which respect time is said to be of the essence - Whether such a provision exclusively defines the period of notice to be specified in a notice to complete - Expression "within 14 days" intended to be a shorthand way of saying "within a period of not less than 14 days" - Purchaser having given notice to complete to expire on or before 3.00pm on the 14th day agrees with the vendors that completion will take place at a nominate time on 15th day - Purchaser then purports to terminate the contract on the 15th day but prior to the nominate time

TENANCY - termination

CRIMINAL LAW AND PROCEDURE - manslaughter - particular facts and circumstances - sentence imposed

EQUITY - Undue influence – whether two transfers and mortgage procured by undue influence of daughter-in-law over mother-in-law – not a relationship where undue influence presumed – mother-in-law suffered stroke causing speech disorder – did not understand transaction – substantial benefit to daughter-in-law and no benefit to mother-in-law - EQUITY - Unconscionable Conduct – whether two transfers and mortgage procured by unconscionable conduct by daughter-in-law - claim founded on same facts – inequality of position - PRACTICE AND PROCEDURE – Whether capacity can be raised as defence when proceedings brought by tutor for plaintiff – whether challenge to requirement of tutor must be by challenge to retainer

PRACTICE AND PROCEDURE – judgments and order – setting aside default judgment for possession of land and mortgage debt – whether arguable defence under Contracts Review Act 1980 - CONTRACTS – whether good arguable defence under Contracts Review Act – whether mortgage and loan contract arguably based on asset lending - where purpose of contract was to refinance an existing loan on the property – where evidence of borrower’s annual income provided by broker to plaintiff/lender (copies of income tax returns) but defendant denied accuracy of the returns and disputed they were his returns - defendant/borrower refinanced with plaintiff due to his financial capacity and ability to service previous loan secured on the property - knowledge of the risk in the borrower as to his capacity to service the loan - interests of justice - "unwarranted benefit" - level of outstanding debt and value of the property.

ADMINISTRATIVE LAW - Freedom of Information Act 1989– access to documents - a notification that an agency does not hold a document under s 28 of the FOI Act is not a “determination” for the purposes of s 24 - ADMINISTRATIVE LAW - Freedom of Information Act 1989 – jurisdiction of Administrative Decisions Tribunal - the jurisdiction of the Tribunal conferred by s 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by an agency

LOCAL GOVERNMENT – works – ownership of drainage works – whether council installed works – Council did not provide labour, funds or supervision – drainage works not installed by council - REAL PROPERTY – easements – easements in gross – easement in gross can be created pursuant to ss 88B(2)(a) and (3)(a) Conveyancing Act – whether an easement created appurtenant to an existing public road was an easement in gross – easement to be construed in context – instrument setting out the terms of the easement specified lots and a public road to be benefited – Council not named as a body to be benefited – not an easement in gross - REAL PROPERTY – easements – whether easement is ‘land’ that is ‘held’ in context of s 51 Local Government Act – land held for drainage purposes may be used for other purposes not inconsistent with its use for drainage purposes – ‘Land’ refers to physical land in this context – ‘To hold’ requires more than an entitlement to use land for drainage purposes in this context

PROCEDURE [110] - Supreme Court procedure – Procedure under Rules of Court – Trial – Whether Court has discretion to permit argument of defendant’s application under Uniform Civil Procedure Rules r 29.9 when plaintiff declines to argue the application.

Objection to part of conversation of accused captured by listening device - application of s 137 of the Evidence Act

Leave sought by Crown to cross-examine Crown witness - prior inconsistent statement

Appeal from Local Court - Construction and Application of Migration Act 1958, Part 3 ss 276, 280 and 281 - Magistrate erred by failing to take into account relevant evidence - UCPR 50.16 provides for re-hearing - Company not able to be registered as migration agent but providing immigration assistance

Application to extend interlocutory relief - Inunctive relief granted on interim basis

Leave sought by Crown to cross-examine de facto partner of accused - unfavourable witness

Objection by de facto wife of accused to giving evidence as a witness for the Crown

TORTS – NEGLIGENCE - DAMAGES – gratuitous attendant care services pre-existing condition requirements of s 15(2) Civil Liability Act

CONTRACTS – contract for construction of residential units, one of which intended to be developer’s residence – whether contract excluded under s 7(2)(b) from the operation of Building and Construction Industry Security of Payment Act 1999 (NSW) - STATUTORY INTERPRETATION – use of extrinsic material - Interpretation Act 1987 (NSW) ss 33, 34

LIMITATION OF ACTION - Extension of time – Claim by police officer for psychological/psychiatric injury – Onus on plaintiff to show there can be an acceptably fair trial – Requirement to identify the issues to be tried – Need for reasonable clarity as negligence alleged against defendant – Onus to show there can be an acceptably fair trial not discharged in the absence of such clarity.

PRACTICE – Costs – Whether reasons to depart from usual order.

EVIDENCE – s 136 Evidence Act 1995 – application by a defendant to limit the use to be made of evidence potentially unfairly prejudicial to that defendant – documents admitted only as evidence of their contents and not as evidence of their truth - EVIDENCE – criminal proceedings in Local Court – proceedings against present plaintiff as defendant dismissed – application by plaintiffs to tender transcript of proceedings in claim for malicious prosecution – no particular portion of transcript identified by plaintiffs as relevant to a fact in issue – tender rejected

CORPORATIONS - winding up - statutory demand - application for order setting aside demand dismissed - no order sought or made for s 459F(2)(a)(i) extension - non-compliance with demand therefore complete at expiration of seven days after dismissal - application by unsuccessful plaintiff for order staying execution of order of dismissal pending appeal - whether such order of any utility in context of legislative scheme concerning statutory demands

EQUITY [53] – General principles – Other forms of equitable fraud – Unconscionable dealing – What constitutes special disability of party – Persons giving onerous guarantee unable to judge what was in their own best interests.

Contracts - Contract for sale of hotel real property and business - Contract not made subject to any due diligence and verification of accounting position of hotel - No warranty of accuracy of figures - Express provisions excluding reliance by purchaser on financial information - Guarantees - Misleading and deceptive conduct - Alleged contractual, common law and fiduciary duties of hotel brokers - Deposits - In New South Wales deposit of 10% of the purchase money an exception from the law relating to penalties - Whether hotel broker an agent for vendors - Solicitors - Allegation that Solicitor for purchaser owed and breached obligations to use reasonable skill, care and diligence or to act in accordance with instructions and to provide full and accurate advice