Cases and authorities

BANKING AND FINANCE [20]- Bank paid money by finance company because of customer's fraud- Whether bank "received" money to be liable to refund it on count for money had and received- Held "No". BANKING AND FINANCE [20]- Joint account with both customers to sign cheques- Bank paid out on one genuine signature- Whether other customer could recover whole or only half the money paid. CONVEYANCING [206]- Torrens system- Mortgage registered- Forged document- Secures money under loan agreement as defined- That agreement forged- Thus no money secured by indefeasible mortgage. MORTGAGES [4][5][6]- Forged mortgage- Registered- Refers to all monies owing under forged loan agreement- Mortgagor not liable despite indefeasibility. PROFESSIONS AND TRADES [67]- Solicitors- Forged mortgage- Solicitors relied on false statement by another solicitor- Problem could have been avoided if appropriate form used- Evidence of NSW practice- Whether could be practice widely accepted in Australia. TORTS [71]- Apportionment- Proportionality- Liability of fraudster and solicitor making false statement and solicitor drawing mortgage apportioned: 72.5%- 15%- 12.5%- Civil Liability Act 2002 (NSW) ss 34-35. -

EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Appropriate balancing exercise.

CRIMINAL LAW - Principles applicable to evidence in a conspiracy trial - Common law principles not over thrown by Evidence) Act 1995 - s 57(2) and s 87(2) - CRIMINAL LAW - Relevance and exclusion of evidence under s 137 of Evidence Act 1995

CRIMINAL LAW – requirements for an appeal by Director of Public Prosecutions – specification of grounds of appeal – Criminal Appeal Act 1912 (NSW) s 5D(1) – Criminal Appeal Rules (NSW) r 23E - SENTENCING – discounts – advantages and risks of arithmetical deduction –mitigating factors – contrition and remorse – weaknesses in Crown case – Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3) - SENTENCING – manifest inadequacy – tailoring the length of a sentence to permit a favoured order – reliability of cases with “similar sentences”

NEGLIGENCE — contributory negligence — plaintiff injured when slipped on wet metal rails of truck tyre wash bay — whether failed to take reasonable care for his own safety — held no - EMPLOYER’S LIABILITY — employer’s non-delegable duty of care to employees — plaintiff employee of labour hire firm injured at premises occupied and controlled by third party — employee required to work at multiple third party sites delivering concrete — employer’s system of work did not address risk to employee at such sites — assessment of employer and third party’s respective liability for purposes of s 151Z(2)(c) Workers Compensation Act 1987 — held — discharge of duty required employer to adopt measures by way of warning and/or training to require employee to report dangerous conditions and seek instructions — held employer’s notional liability 20 per cent - DAMAGES — past economic loss — incapacity — future economic loss – whether buffer appropriate where plaintiff had engaged in virtually no remunerative employment prior to obtaining employment with labour hire firm - held yes.

PROCEDURE – costs – offers of compromise – failure to establish reason for refusing offers.

PROCEDURE – Costs – general rule – costs follow the event – costs of whole action – where offer of compromise made – costs at first instance – costs on appeal – co-defendants – multiple matters

CORPORATIONS - schemes of arrangement - application for court's approval - where statement by ASIC under s 411(17) produced - where price set by formula - final price fixed and notified almost one month before meetings

CRIMINAL LAW - Interception of telecommunication servces - Telecommunications (Interception) Act 1979, ss 9 and 9A - Evidentiary Certificates under s 18(1) - CONSTITUTIONAL LAW - s18(2) of Telecommunications (Interception) Act 1979 does not violate the separation of powers inherent in Chapter 111 of the Constitution - does not violate the accused's right to a jury trial guaranteed by s 80 of the Constitution

EQUITY [220] – Trusts and trustees – The cestui que trust – Right to bring action in name of a beneficiary - Right to sue without joining trustee – Trustee will not sue.

SUCCESSSION - family provision - claim by de facto partner - relationship of short duration - financial and material circumstances of Plaintiff - significant benefits received by the Plaintiff during lifetime of the Deceased and under his will - whether Plaintiff has been left without adequate provision for her proper maintenance - no principle of general primacy of a claim of a widow - competing claims of beneficiaries.

CRIMINAL LAW - Criminal Code Act 1995 s 13.6 - Evidentiary Certidficate under s 18(2) of Telecommunications (Interception) Act 1979 - Content of evidentiary certificate an averment.

CONVEYANCING - Contract for sale - Purchaser failed to complete - Property resold - Liquidated damages claim under clause 9.3.1 of contract - Recovery of deficiency on resale - Recovery of reasonable costs and expenses - Awards of statutory interest on deficiency on resale and reasonable expenses recovered

CRIMINAL LAW - sentencing - proportionality - sentence not manifestly excessive.

CRIMINAL LAW - Sentence appeal - misstatement of fact in remarks on sentence - mental illness and deterrence - whether sentence should have been backdated - whether sentence manifestly excessive.

CRIMINAL LAW – armed robbery with wounding - SENTENCING – Crown appeal - juvenile offender - patent error and insufficient weight to objective seriousness

TORTS – negligence – duty of care – police officers – Respondent struck by downpipe that fell from apartment building – police officers called to scene – whether police owed duty of care to Respondent – whether warning given to Respondent – office of constable at common law – statutory bases for operation of police force – common law and statutory powers and duties of police officers – common law duties of police officers concerning crime – common law duties of police officers concerning keeping the peace – interaction of police powers, duties and discretions – whether public policy a reason for not imposing a duty of care – whether recognition of duty of care to Respondent would be incompatible with any other duty police owed – connection between public policy factors relevant to whether police owe a duty of care and coherence as a factor in deciding whether duty of care exists – relevance of concept of proximity in determining existence of duty of care – salient features analysis – relevance of class to whom public duty owed – significance of finding that police did not engage in any positive act in a negligent fashion – whether police were in control of site – whether plaintiff vulnerable – no reliance on s 213 Police Act 1990 – breach of duty of care – whether failure of police to prevent Respondent from acting in a particular way constituted or was merely evidence of breach of duty of care – whether performance of duty required police to place themselves in situation of potential danger – where contrary to standard operating procedures under which police worked - TORTS – negligence – duty of care – breach – where building owner accepts existence of duty to take reasonable care that building does not cause personal injury to passers by – whether building owner ought reasonably to have realised that causal mechanism by which downpipe became loose was a possible risk – where no evidence that building owner knew that pipe was loose – where case pleaded solely on basis of negligence and not in public nuisance - TRIALS – issues – restrictions on litigant taking on appeal a point not taken below – whether open to litigant who was a defendant in the court below to contend for the first time on appeal that an essential element of the plaintiff’s cause of action is not made out - PRACTICE AND PROCEDURE – expert’s reports – District Court – rules of court relating to admissibility of expert’s reports – where trial judge refused to permit tender of expert’s reports without reasons – where reports cross-examined on – where reports in plaintiff’s possession for nearly a year – where defendant notified plaintiff of intention to tender reports – lapse of reasonable time for plaintiff to deal with tender of reports – lack of identifiable prejudice – whether exceptional circumstances - WORDS AND PHRASES – “exceptional circumstances”

COMMON LAW - Local Court appeal - misdirection - failure to deal with claim

PROCEDURE - adducing expert evidence - whether report "merely updates" earlier "expert's report" - whether "exceptional circumstances" shown to warrant service of expert's report out of time

CORPORATIONS - winding up - application for leave to proceed against company in liquidation - where winding up order made by a court other than this court - where proceeding to be pursued as an appeal - where the question on appeal will be whether company retains money judgment

CONTRACTS - offer and acceptance - offers of redundancy packages to employees - mistaken calculation - whether acceptances gave rise to binding contracts.

JURISDICTION - whether proceedings should be heard in CTTT or this Court

CIVIL PROCEDURE – statement of claim – application for leave to file seventh amended statement of claim within one month of substantive hearing – plaintiffs unrepresented - proposed amended statement of claim 357 pages and 1119 paragraphs consisting of "material facts" – leave sought to plead a cause of action in defamation - events giving rise to proceedings occurred in mid 1990s – abuse of process – application dismissed with costs

CRIMINAL LAW – Particular offences – offences against the person – other offences against the person – sexual offences – rape and sexual assault – proof and evidence - CRIMINAL LAW – Appeal and new trial and inquiry after conviction – appeal and new trial – appeal against sentence – appeal by convicted persons – applications to reduce sentence – when refused – particular offences – offences against the person – sexual offences – whether sentence unduly harsh and severe – whether failure to take into account offender’s age and good character - EVIDENCE – Admissibility and relevance – opinion evidence – expert opinion – other cases – DNA evidence – where expert gives opinion on DNA matters – Sorbolene cream facilitating transfer of DNA – where expert had no experience with Sorbolene cream and DNA – where evidence alleged to have no scientific basis – where witness alleged to lack specialised knowledge – Evidence Act 1995, s79

Sentencing - Crown appeal - kidnapping, administering stupefying drug and aggravated sexual assault - whether sentence manifestly inadequate - failure fully to assess objective criminality - regard to remorse and concern about apprehension - failure sufficiently to recognise general deterrence - insufficient increase for Form 1 offences - in any event manifestly inadequate - offender resentenced.

CRIMINAL LAW: Sentence – sexual assaults committed in the early 1970’s – sentencing to replicate sentencing practices of the earlier time – non-availability of remissions not a relevant matter – non-parole period to reflect pattern of sentencing at that time

SUCCESSION – Family provision and maintenance – jurisdiction – persons in whose favour and order may be made – children – generally – where no other eligible person to claim – Family Provision Act 1982, s7, s9 - SUCCESSION – Family provision and maintenance – practice – procedure, orders and other matters – orders – order enforcing compromise agreement - SUCCESSION – Family provision and maintenance – principles upon which relief granted – circumstances to be considered – where agreement to compromise reached – circumstances relevant in approving agreement – Family Provision Act 1982, s7, s9

Costs - pre-trial offers of settlement - plaintiff achieves greater success at trial than offers - defendant appeals - defendant obtains reduction of damages on appeal - but plaintiff's success still greater than offers - offers a discretionary factor as to appellate costs - appeal a new stage in litigation - plaintiff did not make fresh offer - prior offers counted for little - no variation to costs order otherwise appropriate by reason of offers.

EQUITY [420] – Equitable remedies – Specific performance – Practice – Enforcement of decrees – How enforceable – Order that transfer be executed by nominated person – Power to make anticipatory order.

PRACTICE AND PROCEDURE - Case management - Overriding purpose rule- transformation of the anterior overriding purpose rules of the Court into statutory form has given a new lease of life to the Court's discretionary case management powers - Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 - Separate question orders - Leave to amend pleading - Difficulties in refusing leave where the hearing date has been vacated and no particular prejudice to the defendants has been identified - Leave to serve further evidence - Variation of confidentiality regime - Application for discovery - Security for costs - Freezing orders

CRIMINAL LAW - sentence - murder - relevant principles concerning the application of s 61(1) Crimes (Sentencing Procedure) Act 1999 - whether life sentence should be imposed - whether offence within worst category - future dangerousness

STRATA TITLES – Strata Schemes (Freehold Development) Act 1973 – Strata Management Statement – restrictions on use by owners of lots – whether enforceable against tenant.

COMMON LAW - Local Court appeal - important question of law - fair and reasonable repair costs - onus

APPEAL - CTTT - denial of procedural fairness

PROCEDURE [760]- Application for extension of injunction prohibiting defendants from re-entering or gaining possession of lease property- Plaintiff alleges unliquidated off-setting claim against defendants arising from water damage- Distinctions between off-setting claim in Corporations Act and set-off at law or in equity- No set-off- Equitable set-off requires a sufficiently close connection between the demands- Lack of requisite connection in present case.

CONTRACT - separate questions - compromise of litigation - whether parties settled their respective claims - whether parties intended to be immediately bound - whether "proposal" constituted an offer capable of acceptance - whether agreement "in principle" constituted acceptance - no intention to be immediately bound

ADMINISTRATIVE LAW – role and functions of Registrar of Workers Compensation Commission – whether error in decision of Registrar’s delegate that there were no grounds of appeal existed – role of court where relief not opposed – whether consent orders appropriate - ADMINISTRATIVE LAW – reasons – when required in relation to administrative decision - COSTS – costs where no opponent - WORDS AND PHRASES – “exists” – “demonstrable error” - WORKERS’ COMPENSATION – inconsistency in medical assessment certificate – whether ground of appeal exists – demonstrable error – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 327(3), (4)

Costs - order against solicitor if provided legal services without reasonable prospects of success - order authorised by s 348(1)(b) Legal Profession Act that solicitor indemnify for costs payable by party indemnified - order made that solicitor indemnify with respect to costs payable by another party to party indemnified - not authorised by s348(1)(b) - order set aside.

TRUSTS - victim trust fund - whether first defendant's victim claim eligible to be satisfied from victim trust fund held by plaintiff on behalf of second defendant - whether first defendant gave protected defendant notice of proceedings on victim claim within eligibility period - determining eligibility period - whether notice sent - if sent, when notice taken to be received

APPEAL AND NEW TRIAL [248] - Appeal - Practice and procedure - Stay of proceedings or injunction to prevent execution of judgment pending appeal - Application where appeal to Court of Appeal pending usually dealt with by Court of Appeal or Judge of Appeal rather than Judge in Division – Injunction granted for short time to permit application to Court of Appeal.

PROCEDURE [86]- Ex parte application for extension of time for service of originating process- Limitation period expired- Principles involved- Unless proposed extension is no more than a month or there is suggestion that defendants may avoid service, defendants must be notified of order and the period in which they may move to set aside the order- Application granted.

Practice and procedure - Costs - Contractual entitlement to costs on an indemnity basis - Mortgage agreement - Costs continue to be at the discretion of the Court - Indemnity costs limited to costs reasonably incurred

Practice and Procedure - Discovery - Unpleaded prospective loss - Pleadings

APPEAL decision CTTT - preliminary conference - whether Tribunal Member should not conduct hearing

FAMILY PROVISION - application by de facto partner of deceased - relatively short relationship - de facto partner benefited from deceased's bounty during relationship - other claims on deceased's bounty - de facto partner had not established inadequate provision for his proper maintenance, education and advancement in life.

COMMON LAW - Local Court appeal - inadequate disclosure of reasoning process

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute as to existence of debt for remuneration of administrator of deed of company arrangement - where remuneration quantified by court order - no statutory provision requiring company subject to deed to pay deed administrator's remuneration - deed itself states that deed administrator entitled to remuneration "out of" specified funds and assets - whether "debt" thereby created - deed also states that, if deed terminated, remuneration to be paid by company - question as to statutory effect of such provision after deed terminated - whether source of debt - whether court should on present application choose between competing contentions

CRIMINAL LAW - Crown appeal against sentence - malicious wounding with intent to do grievous bodily harm - no specific error - sentence not manifestly inadequate