Cases and authorities

Costs - Proper characterisations of proceedings - Principle dealing with rights of trustee to be indemnified out of trust assets in respect of court proceedings

COSTS – application for indemnity costs – Offer of Compromise sent by third and fourth defendants to the plaintiff offering settlement in terms "judgment and verdict for [those defendants] with each party to pay their own costs" – whether genuine offer of compromise – whether discretion to award indemnity costs should be exercised - COSTS – Offer of Compromise - offer not bear a statement to the effect that the offer was made in accordance with the rules, contrary to UCPR 20.26(3)(a) - whether offer valid otherwise than as a Calderbank offer

LIFT STAY OF PROCEEDINGS - Security for costs

ADMINISTRATIVE LAW – Judicial review – s 69 Supreme Court Act 1970 – Whether summons was ‘so obviously untenable’ – General Steel test – Whether refusal by Administrative Decisions Tribunal to consider complaint that appellant was terminated for reason of race disclosed error of law on the face of the record – Construction of the phrase ‘subject matter’ – Whether subject matter of complaints to Australian Industrial Relations Commission and Anti-Discrimination Board were the same – Distinction between unfair and unlawful termination of employment – Requirement to give notice under s 78B of the Judiciary Act in relation to s 109 Constitution question - RELIEF – Discretion to refuse relief – Whether it would be futile to remit the summons - COSTS – Litigant in person not entitled to costs to compensate him for time spent in preparing and conducting his case.

LEGAL PRACTITIONERS – Removal from Roll – Professional misconduct – Whether proceedings are for civil penalty – Whether there is privilege against self-incrimination – Practitioner does not give evidence or explanation of matter within practitioner’s knowledge – Whether this can be taken into account in drawing inference against him.

ADMINISTRATIVE LAW – judicial review – error “in point of law” – non-interference with factual findings – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353 - COSTS – non-compliance with rules relating to preparation of appeal books - WORDS & PHRASES – “in point of law” – “reasonable action” - WORKERS’ COMPENSATION – entitlement to compensation – exclusions – transfer of employee – whether reasonable action taken by employer – objective assessment of reasonableness – belief in reasonableness of third party’s actions – whether direction to transfer was contractually binding – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 234 - WORKERS’ COMPENSATION – transfer of employee – employer acting on direction of education authority – employer contractually obliged to act on direction – whether contracting out of workers’ compensation legislation –Workers Compensation Act 1987 (NSW) s 11A

APPEAL - Local Court Assessor - RECOVERY - Workers Compensation premiums - JURIDSICTION

COSTS - Security for costs - impecunious corporate plaintiff - whether order for security would stultify proceedings - whether order would be oppressive - delay - amount of security

CORPORATIONS - statutory derivative action - allegation of breach of fiduciary duty said to be continuing after termination of company's business - whether court satisfied under s 237(2) with respect to good faith, best interests of the company and serious question to be tried - relevant considerations

INJUNCTION – interlocutory injunction – contract for sale of land – serious question whether stakeholder is to hold deposit as trustee – plaintiffs tardy and deposit protected by charge – injunction refused - PROCEDURE – summary judgment – contract for sale of land – sum less than purchase price paid before completion – contract authorises part payments before completion – triable issue that vendors are entitled to retain part payment

Practice and procedure - Principles - Claim for costs on indemnity basis - Calderbank letter containing no element of compromise - Principles

CRIMINAL LAW AND PROCEDURE - sentence - two counts of murder - extreme violence - second killing designed to prevent report to police of first murder - determinate sentences imposed although second offence assessed in worst category - cumulation - intention to set non parole period at 75 percent of total not implemented - adjustment to specification of non parole period on second count

SENTENCE - Crown appeal - specially aggravated break enter and steal - erroneous inclusion of breach of conditional liberty as factor in assessment of objective gravity - standard non parole period - indeterminate assessment of objective gravity - manifest inadequacy.

CONVICTION APPEAL - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - circumstantial case against father of two infants - co-incidence evidence whether open to jury to draw inference of specific intent.

CONTRACTS - unjust contracts - statutory remedies - sale by 90 year old woman of home and virtually only asset to nephew and his sons for $1.00 - oral promise by them to allow her to remain there for life - whether contract - whether unjust within Contracts Review Act 1980 s 7 - EQUITY - unconscionable dealing - clearly improvident transaction - whether position of special disadvantage

CAVEAT – EXTENSION – Whether prima facie case for caveatable interest made out. - POWER OF SALE – Whether mortgagee whose receiver adopts and seeks to enforce a contract for sale made before appointment of receiver is exercising power of sale and may invalidate a lease under s 53(4) Real Property Act.

INJUNCTION – interlocutory injunction – serious question of construction of agreement for appointment of exclusive distributor of broadband satellite products - balance of convenience – no evidence that defendant will be better off if interlocutory injunction refused – difficult to assess plaintiff’s loss if injunction refused – injunction granted - CONTRACT – construction – compulsory arbitration clause – parties reserved their right to seek urgent equitable relief – interlocutory injunction requires that final relief is sought – whether arbitration and litigation seeking urgent equitable relief are alternative courses – comment that the two courses are not necessarily alternatives

Application to cross-vest proceedings in the nature of asbestos litigation by second defendant, as alleged asbestos manufacturer, to the proceedings in the Dust Diseases Tribunal of NSW to the Supreme Court of South Australia – new legislation in South Australia – Dust Diseases Act 2005 (SA) – establishes specialist jurisdiction in the District Court of South Australia – whether order for transfer of proceedings may be made under s.5(2)(b)(iii), Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) – whether the proceedings can be said to be “in interests of justice that the relevant proceeding be determined by the Supreme Court of another State …” when transfer to District Court anticipated – whether Supreme Court of South Australia the “natural” forum – connecting factors – preponderance of factors favour Supreme Court of South Australia – interests of justice – issue of substantial delay – whether material prejudice – proceedings should be transferred.

COMMON LAW - summary dismissal - dismissal of statutory claims - in trade or commerce - limitation periods

LEGAL PRACTITIONERS - Application to remove from Local Roll - Convicted of criminal offences - As solicitor for deceased, appointed as sole executor and trustee of estate - Appropriating trust property - Practising without holding a practising certificate - Whether guilty of professional misconduct - Whether not a person of good fame and character - Whether not a fit and proper person to remain on Local Roll - Whether name should be removed from Local Roll

CONVEYANCING - Contract for sale of leasehold interest under 99 year lease of strata lot – covenant in lease requiring lessee to procure Owners Corporation as lessee of common property to do remedial works it was required to under its lease – covenant runs with leasehold interest – whether completion could be delayed until works completed

CRIMINAL LAW – Sentencing – Kidnapping – Attempted Murder – Damaging Property with Intent to Endanger Life – Whether Offence within Worst Category – Non-Parole Period – Objective Seriousness of the Offence – Aggravating Factors – Accumulation and Totality of Sentences

PRACTICE AND PROCEDURE - respondents procure production of entertainment in South Africa, allegedly in breach of duties - application for orders to "repatriate" profits and notify future performances, and other orders - relevant considerations

GAMING - claim for prerogative relief - decision of Liquor Administration Board approving transfer of poker machine entitlements - decision that Plaintiffs had not demonstrated "financial interest in the hotelier's licence" for purpose of s.19 Gaming Machines Act 2001 - claim that decision affected by error of law, jurisdictional error or manifestly unreasonable - no error demonstrated - relief refused

CORPORATIONS - winding up in insolvency - statutory demand - requirement for an affidavit supporting an application to set aside a demand - failure to satisfy "Graywinter principle" - whether court may extend period for compliance with demand

CONTRACTS - whether contract compromising litigation made - correspondence and conversations between solicitors - offers identified - whether any offer unconditionally and unequivocally accepted - turns on own facts - no matter of principle

SUCCESSION - family provision - claim by adult son - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claims of other beneficiaries

COMMON LAW - negligence - prima facie inference of negligence - contributory negligence and apportionment - driving after drinking - driver holds an L-plate - passenger holds a P-plate

CRIMINAL LAW – Murder – s 132(1) Criminal Procedure Act 1986 - election by accused for trial by judge alone – 11 week old victim - son of accused – deceased died from diffuse axonal injury to brain caused by non-accidental acceleration/deceleration forces from shaking or impact – circumstantial case – reasonable alternative hypothesis - degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved not so high that the contrary could not reasonably be supposed – no satisfaction beyond reasonable doubt that the accused was the person who inflicted the injuries to the deceased that ultimately led to his death – not guilty verdict

DEFAMATION - Defamation Act 2005 - imputations - whether conveyed - whether defamatory - defence - fair comment at common law - honest opinion - triviality - qualified privilege at common law - malice - damages

CRIMINAL LAW - sentence - extra-curial punishment.

Local government – Statutory functions – Compulsory acquisition – Purpose of acquisition – Whether acquisition was for purpose of exercising statutory service function – Land adjoining or in vicinity of other land proposed to be compulsorily acquired – Public-private partnership for development – Whether council proposed to acquire land for purpose of resale – Meaning of resale – Distinction between purpose and motive – Dominant purpose – Implementation of Parramatta Civic Place Master Plan.

CRIMINAL LAW - Application for stay of proceedings - Abuse of process - Ability of ASIO witnesses to give surveillance evidence in criminal proceedings - ASIO Act 1979 - Construction of s 18(2) - Authority or approval to give evidence - Sufficiency of approval.

CRIMINAL LAW - serious sex offender - interim detention order - orders for appointment of psychiatrists to examine Defendant

PROCEDURE - preliminary discovery - to ascertain identity of potential defendant insurer - insured is company now in liquidation - plaintiff has pre-liquidation judgment against company - whether discovery may be sought against company as distinct from its liquidator - CORPORATIONS - winding up - possession of company's pre-liquidation books - whether possession with company or with liquidator - whether claim for preliminary discovery maintainable against company as distinct from liquidator - whether leave to proceed against company should be granted

PROCEDURE – Entry of judgment and orders – procedure for entry of judgment and orders under former Supreme Court Rules 1970 (NSW) and under Uniform Civil Procedure Rules 2005 (NSW) – entry of judgment and orders on computerised court record system – Uniform Civil Procedure Rules 2005 (NSW) r 36.11 - PROCEDURE – Variation of order following entry of judgment – general law principles relating to variation of orders – statutory authority to reopen entered orders – time limits on variation – Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Contracts. Construction and interpretation of contracts. Contract for sharing of back-end leasing profits. Interpretation of variation deed. - Equity. General principles and maxims. Rectification of variation deed to accord with parties' intention. Rectified in part.

APPEAL - Local Court Magistrate - removal of good in backyard shed

TRADE AND COMMERCE [26] – Trade and commerce generally – Restraint of trade – Restraint by agreement – Construction of agreements in restraint of trade – Covenant not to compete – Any business competitive with the business of the plaintiff – Meaning of “competitive”.

Family Provision. Application by sister of deceased who lived with his sister from time to time. Plaintiff claims to be dependent by virtue of interest free loan made to her by the deceased. Dependency established. Order for provision.

CONTRACT – RECTIFICATION – COMMON MISTAKE – where contract for sale of land and transfer provided for transfer of whole of a registered lot where it was the intention of the parties to transfer only part of the lot – distinction between rectification for common and unilateral mistake – whether unconscionable conduct an element of common mistake – where transfer repeating mistaken description of land had been registered – whether retransfer to vendors of area mistakenly transferred available – discretionary considerations – whether relief should be withheld due to delay by vendors – whether Schedule of Lands attached to contract should be rectified – EQUITABLE DAMAGES – whether equitable damages appropriate in lieu of retransfer of land. - CONTRACT – RECTIFICATION – DEFENCES – where retransfer of mistakenly transferred land to vendors is appropriate remedy after order for rectification – whether restitutio in integrum relevant to suit for rectification – whether rectification and retransfer possible where a bona fide third party has taken an interest in the land – whether rectification and retransfer possible where contract no longer capable of performance – whether rectification and retransfer is inutile. - CONTRACT – RECTIFICATION – IMPLIED TERMS – relationship between implication of terms and rectification – where rectification of the contract would require provision for subdivision of the subject land – whether terms providing for subdivision of land can be implied into the contract for sale – whether rectification impossible due to uncertainty of terms in respect of subdivision – whether implication of terms requires same standard of certainty of content as suit for rectification. - CONTRACT – WARRANTIES – breach of warranty – whether Schedule of Lands attached to but not referred to in contract amounted to a warranty by vendor of total area land to be transferred – whether regard can be had to evidence extrinsic to contract to determine if Schedule is a warranty – DAMAGES – interest. - PROPERTY – Land under Torrens Title – (NSW) Real Property Act 1901, s 43A – indefeasibility of title – protection of purchaser from notice of unilateral mistake between settlement and registration – “personal equity” – in personam equitable claims against parties with registered interest – whether claim for rectification is a recognised equitable cause of action enforceable against a party with a registered interest – whether registered party’s protection against notice of mistake available where parties under common mistake – whether notice possible under common mistake – whether Real Property Act, s 43A relevant to suit for rectification under common mistake – whether unconscionable conduct by party with registered interest necessary to all in personam claims.

CRIMINAL LAW - sentencing for manslaughter - excessive self-defence - stabbing - use of push dagger - objectively grave offence - importance of general and personal deterrence

STRIKE OUT - parts of statement of claim

PROCEDURE [728] – Contempt, attachment and sequestration – Attachment and committal – As a method of enforcing orders of court – Orders other than for payment of money – Judgment against company – Committal or sequestration of property of officer – Whether company able or unable to comply with judgment.

SUCCESSION - Wills, Probate and Administration - lost will - whether testamentary document - whether testamentary document executed - whether testamentary document a will or codicil - whether testamentary document revoked all previous wills - terms of testamentary document - whether presumption of destruction arises or rebutted - probate granted to plaintiff.

TORT - motor vehicle accident - personal injury - liability - road authority - third party.

CONVEYANCING – indefeasibility of title – effect of registration of forged mortgage – whether indefeasibility attaches to payment covenant in deed of loan – Real Property Act 1900 (NSW) ss 41, 42, 57 - CONTRACTS – interaction between principles of contractual interpretation and the Real Property Act 1900 (NSW) – application of doctrine of incorporation to registered mortgage and deed of loan - MORTGAGES – power of sale – whether power of sale activated – identification of default – effect of exercise of power of sale – Real Property Act 1900 (NSW) s 57(2)

ROAD TRANSPORT - offence of using unregistered registrable vehicle on road or road-related area - whether vehicle was a pedal cycle to which was attached auxiliary propulsion motor or motors having combined maximum power output not exceeding 200 watts - finding by Magistrate that vehicle was primarily a motor cycle with foot pedals as secondary means of propulsion - appeal against conviction on question of law - meaning of "auxiliary" - finding open to Magistrate - no error of law - appeal against conviction dismissed - SENTENCING - Magistrate excludes consideration of s.10 Crimes (Sentencing Procedure) Act 1999 because of plea of not guilty - error of law established - sentence varied

Amendment to Statement of Claim - reliance upon s74 of the Trade Practices Act 1974 - whether the s82 time limitation applies to amendment - whether new cause of action raised - whether amendment futile - whether prejudice suffered by defendants.