Cases and authorities

APPEAL - Appellant not entitled on appeal to revive claim disclaimed at trial which might had been answered by evidence. - CONTRACT - success fee payable on defined event - no implied term for fee to be payable on another event.

CONSTITUTIONAL LAW – The non-judicial organs of government – the Crown –proceedings by and against the Crown – limitation of actions - LIMITATION OF ACTIONS – Contracts, torts and personal actions – the period of limitation – actions to recover money recoverable by virtue of an enactment - STATUTES – Acts of Parliament – interpretation – expressio unius est exclusio alterius - STATUTES – Acts of Parliament – interpretation – consideration of extrinsic matters – other matters – explanatory intrinsic material - TAXES AND DUTIES – Income tax and related legislation – collection and recovery of tax – proceedings for recovery – PAYE – PAYG

SUCCESSION - family provision - claim by asserted de facto partner of Deceased - status of Plaintiff as de facto partner is disputed by Defendant - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - application not made within prescribed period - whether sufficient cause is shown for application not having been made within prescribed period - conduct of Defendant - competing claims of beneficiaries - nature of provision to be made for Plaintiff.

Practice and procedure - Discovery - Leave to amend pleadings - Indemnity agreement - Punctual payment - Anshun estoppel - Separate question

Family Provision. Claim by person as de facto partner or in a close personal relationship with the deceased. Held only close personal relationship. - Claim dismissed as sufficient provision made by deceased.

TRUST - plaintiffs invested in a unit trust - trust's investments appear to have failed - plaintiffs sought redemption of their units in unit trust and for payment of their entitlements - plaintiffs' evidence did not substantiate declarations and orders sought

CIVIL PROCEDURE - discovery - further and better discovery - whether affidavit verifying list of documents conclusive – interrogatories – whether relevant to a fact in issue – defendant's motion dismissed

ACCOUNTS AND INQUIRIES – on dissolution of alleged joint venture for development of property – where order for accounts made by consent on limited basis without resolving entitlement issue – where plaintiff belatedly contends that original order should be reopen to provide for wider obligation to account – whether appropriate to reopen original order – where property purchased in name of first defendant (son) with funds borrowed in name of plaintiff (father) second defendant (wife) and son – whether presumption of resulting trust rebutted - whether common intention that property was to be beneficially the son’s – where father agreed to provide security for loan upon certain conditions – where condition breached – whether father entitled to appropriate profits of venture - whether father entitled to draw on loan for his own separate benefit – extent of father’s liability to account for such drawings.

CORPORATIONS - winding up - court's approval for liquidator to enter into agreement the term of which may end more than three months after the agreement is entered into - loan agreement for three months, with option for borrower to extend - purpose of loan to permit liquidator to discharge mortgage over company's property and complete acquisition of adjourning properties, so as to permit sale of all three properties together as a development project - evidence needed as to prospects for sale

LANDLORD AND TENANT - Creation of Relationship of Landlord and Tenant - Whether concluded agreement for lease contained in correspondence - Whether in first class in Masters v Cameron (1954) 91 CLR 353 - Whether conventional estoppel applied to failure to demand rent increases - Whether repudiatory conduct precluded specific performance - Whether no agreement for lease in equity - Whether tenancy at will terminated by notice to quit under the Conveyancing Act 1919, s 127(1) - Whether relief from forfeiture available

TRUST - resulting trust - purchase of property - unequal contribution of plaintiff and first defendant to purchase price - whether plaintiff and first defendant had common intention that beneficial interest would vest wholly in plaintiff - declaration that first defendant held the whole of his interest in property on resulting trust for plaintiff and consequential orders

SENTENCING - manslaughter by unlawful and dangerous act - single blow causing death - impact on child of offender resulting from full-time imprisonment - whether sentence manifestly excessive

CRIMINAL LAW AND PROCEDURE - Sentence - Multiple offences against family member victims and arresting police - Whether impositions excessive - Whether orders for cumulation and concurrency erroneous - (Per Grove J and Johnson JJ, Campbell JA not deciding) A deliberate self inflicted injury by the offender at the time of arrest not a matter of mitigation

INSURANCE – Double insurance – Contribution between insurers – Whether same risk insured by both insurers – Whether one insurer had made payment in respect of realisation of a risk insured by both insurers.

PUBLIC SERVICE - Promotion appeals to GREAT - Applicants required to nominate location of positions applied for - Positions not identified in advertisement - Applicants entitled to appeal from promotions to locations not applied for

VENDOR and PURCHASER – contract for sale of land subject to lease to Service Station – operation of misrepresentation stated in terms of contract and warranties implied under Conveyancing Act s 52A and Regulations to ground rescission – consideration whether contract disclosed adverse affectation (road widening proposal) – consideration of statement in contract that vendor not aware of “legal proceedings which might or will affect the property” when there was pending litigation by tenant claiming damages – held rescission effective, deposit recoverable. TRADE PRACTICES – Brochure given by Agent to Purchaser described property as outstanding investment, referred to rent and positive characteristics of tenant, did not disclose disputes and pending litigation with tenant who claimed he agreed to the rent under the influence of misrepresentations – earlier forms of Draft Contract contained notification of extended rent holiday granted to tenant in addition to rent holiday in lease – this generated inquiries from prospective purchasers and was withdrawn from Draft Contract given to Purchaser – numerous factual issues – held misleading conduct, damages being deposit paid to vendor and not recoverable awarded against principal of vendor and against Agent. Consideration of – nondisclosure as misrepresentation – Agent as mere conduit – puffery – operation of Proportional Liability in CLERP legislation which took effect after deposit was paid – numerous incidental issues.

CRIMINAL LAW – accused charged with murder – evidence of developmental retardation and psychiatric illness including schizophrenia and psychosis – Mental Health Criminal Procedure Act 1990 – whether accused unfit to stand trial - medical opinion that accused was unfit to stand trial

Appeal from Local Court - elements of offence under Regulation 13 Forest Regulations 2004 - whether elements of offence made out - whether adequate reasons for decision - whether sufficient evidence to establish signs displayed in accordance with regulations.

PROCEDURE [32] - Courts and Judges generally - Courts - Adjournment - Discretion of Court - Late application – Liquidator who is under cross examination has long standing booking for family holiday.

Sexual offender - Application for extended supervision or detention - Detention order declined - Supervision order made

CORPORATIONS - statutory derivative action - claim by former officer for leave under s 237 to bring two proceedings on behalf of Australian company - first proceeding is general law derivative action to be initiated by Australian company as sole member of English company alleging breach of directors' duties owed to English company - whether such "double derivative" proceeding is within ss 236 and 237 - second proceeding is action by Australian company for breach of directors' duties owed to Australian company - whether serious question to be tried shown

COSTS – assessment – costs assessor – review panel – adequacy of reasons – basis of assessment of all disputed costs must be explained – statement of reasons must be sufficiently precise to give meaningful content to rights of appeal – sufficient to specify how disputed costs of the same kind were treated – failure to provide sufficient reasons. - PRACTICE AND PROCEDURE – joinder of members of costs review panel as defendants.

COMMON LAW - Local Court appeal - leave - discretionary exercise - decision refusing application to set aside default judgment

FAMILY PROVISION – Whether plaintiff lived in domestic relationship with deceased – whether adequate provision made for plaintiff.

LEGAL PRACTITIONERS – discipline – professional misconduct – proceedings commenced in Administrative Decisions Tribunal under Legal Profession Act 1987 – Appeal Panel ordered Appellant’s name be removed from roll of solicitors – right of appeal to Supreme Court on question of law – s 118 Administrative Decisions Tribunal Act 1997 – proceedings pending in Tribunal immediately before commencement of Legal Profession Act 2004 – proceedings governed by 1987 Act – Sch 9, cl 15 Legal Profession Act 2004 – whether Appeal Panel applied wrong legal test or misapprehended nature of its task in determining whether Appellant’s name should be removed from roll – proper test for removal from roll – whether a difference between fitness to be on the roll and fitness to hold a practising certificate – whether Appeal Panel misapprehended on which party onus lay of establishing certain matters – whether Appeal Panel took into account irrelevant matters – whether Appeal Panel made erroneous findings of fact – whether Appeal Panel exercised its discretion in a manner outside permissible legal bounds – where ground of appeal dependent on success of at least one of other grounds - EVIDENCE – matters relating to proof – onus of proof – proof of negative proposition – not a fit and proper person to remain on roll – shifting of evidential onus in respect of negative proposition – distinction between burden of proof in the sense of establishing a case and burden of proof in the sense of introducing evidence - WORDS AND PHRASES – “permanently unfit to practice”

REVIEW - Principal Claims Assessor - Motor Accidents Compensation Act 1988 - s 81 notice not binding upon an insurer - Part 4.4 assessment

WILLS PROBATE AND ADMINISTRATION – Probate – Application for grant of probate – whether deceased had knowledge and approval of contents of will - suspicious circumstances not a defence - WILLS PROBATE AND ADMINISTRATION – Probate – Application for grant of probate – whether testator had testamentary capacity – where deceased suffered Parkinson’s disease, delusions and schizophrenia – onus remains with person propounding will

CRIMINAL LAW – Jurisdiction, practice and procedure – summing up – whether failure to properly identify issues to the jury – whether failure to properly put defence case to jury – where defence case confusing or not an answer to crown case - CRIMINAL LAW – Particular offences – property offences false pretences and other frauds and impositions – obtaining loan from a bank – where loan documents identify 144 specific buses – where the specific buses do not exist – where defendant knows the specific buses do not exist – where other buses exist

ADMINISTRATIVE LAW - costs assessment - view by panel - statutory functions of review and determination - reasons

CONTRACT - REAL PROPERTY - contract for sale of land - claim by purchaser for part of purchase price to be set aside - vendor did not rescind and refused to set aside part of purchase price - whether purchaser's claim a claim under cl 7 of the standard contract for sale of land (2005 ed.) - whether special conditions excluded claim - whether purchaser validly terminated for vendors' anticipatory breach - whether vendor validly terminated for purchaser's repudiation by purported termination - claim for repayment of the deposit

REAL PROPERTY - co-owner seeking sale under s 66G of Conveyancing Act 1919 - defendant keen to purchase plaintiff's share of property - whether orders should be made appointing trustees for sale - if orders made whether orders should be moulded to accommodate defendant's wish to purchase following valuation - orders under s 66G made

Motor Accidents Compensation Act - three year limitation - extension of period - brain damaged claimant - onus of proof - whether "full and satisfactory explanation" of delay - conduct of claimant's family and solicitor - relevance of such conduct.

COSTS - application for indemnity costs - offer of compromise by respondent - offer not accepted

CORPORATIONS - voluntary administration - whether directors of company abused provisions of Part 5.3A so as to warrant order for termination of administration - whether, when administrators are appointed after filing of winding up proceedings and subsequently administration is terminated and winding up order is made, s 447A authorises Court to make an order "backdating" the s 513C day to the date of filing of winding up proceedings - winding up by court - identification of date of commencement of winding up, s 513C day and relation-back day - whether, under s 513A(b), company is under administration "immediately before" making of winding up order if Court orders termination of administration and then orders winding up - LAW REFORM - whether reform is needed to definition of "relation-back day" and ss 513A and 513C

Criminal law - sentencing - offence of maliciously inflicting grievous bodily harm in company - Form 1 matters - parity - assertion of lack of due proportion with sentences imposed on other offenders

REAL PROPERTY – Torrens Title – legal proceedings generally – proceedings for possession or recovery of land – execution of mortgage by Deputy Registrar – whether Deputy Registrar authorised to execute mortgage – where court order empowered execution by “the Registrar” – whether a Deputy Registrar is or is not a Registrar – Civil Procedure Act 2005, s19

WORKERS COMPENSATION – Proceedings to obtain compensation – determinations of claims – medical examinations – submission to medical examination – where approved medical specialist assessed impairment at less than 15% – where percentage impairment contested - WORKERS COMPENSATION – Proceedings to obtain compensation – determinations of claims – jurisdiction of courts, tribunals, commissions and boards – whether arguable grounds of appeal from assessment of approved medical specialist in a Medical Assessment Certificate – whether error in conclusion of Registrar’s Delegate that there were no arguable grounds of appeal – demonstrable error – incorrect criteria – Workplace Injury Management and Workers Compensation Act 1998, s327

Appeal from Appeal Panel of Administrative Decisions Tribunal - refusal to grant adjournment - refusal to transfer matter to Court of Appeal - refusal to reopen previous orders of court - whether error of law in decision of Appeal Panel - no error of law.

Contract - Construction - Principles - Repudiation - Security services - Exclusivity - Supply contracts - Primacy of words used in a written contract - Business commonsense test - Sensible commercial operation

Tort - Negligence - Breach of statutory duty - Common law duty of care - Statutory authority - Essential fire services - Effective height - Development application - Sprinklers - Occupation certificates - Factor of control - Wednesbury unreasonableness - Control of a structure - Self-imposed duty to take positive action - Standing of Owners Corporation to bring proceedings

ADMINISTRATIVE LAW - statutory construction - disclosure of confidential information - particulars

Farm Debt Mediation Act (1994) NSW - Proper Construction of particular provisions - Whether any certificate was 'issued' under section 11

COMMON LAW - Local Court appeal - costs - leave and relevant considerations

PRACTICE - leave to reopen to amend orders to limit liability otherwise ordered - requirement to amend pleadings and adduce evidence - operation of 'slip rule' - leave refused - PRACTICE - amendment of costs order - typographical error by party - consent order - fresh assessment of appropriateness of order - order varied.

SUCCESSION - family provision - claim by adult daughter - financial and material circumstances of Plaintiff - relationship between Plaintiff and Deceased - statements by Deceased in his will - such statements, whilst admissible need not be unquestionably accepted as true - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claim of Defendant - an order for provision is not made as a reward for services or good conduct - neither is it withheld as punishment for perceived bad conduct.

COSTS – follow the event – no question of principle.

COMMON LAW - default judgment and writ of possession obtained - no defence filed by defendants in reliance on purported representation made to them by the plaintiff - Notice of Motion seeking stay of execution of writ and setting aside of default judgment filed subsequent to writ's execution - no defence to underlying claim in debt - discretion of Court to restrain plaintiff from further execution of writ

Practice and procedure - Security for costs - General principles - Delay - Litigation funding - Plaintiff liquidator brings proceedings seeking to recover approximately $40,000,000 including interest - Whether liquidators should be required to provide security for costs where litigation is funded by external funder

SUCCESSION [229]- Wills- Construction- Life interest or absolute interest. TRUSTS AND TRUSTEES [204]-Orders proposed under s 81 Trustee Act 1925- Proposal to channel distributions through intermediary corporation- Whether proposal was for the management and administration of the trust- Whether expedient.

CONVEYANCING [212] – Land Titles under the Torrens Systems – Mortgages, Charges and Encumbrances – Transfer of Equity of Redemption – Joint tenancy – Guarantee by one tenant secured on property – Transfer of encumbered interest by debtor to other joint tenant – Rights of creditor - EQUITY [29] – General principles – Priority and notice – Priority generally – Competing equitable interests – Earlier equity not to be postponed to later without act or default that makes it inequitable that initial priority be retained – Failure to lodge caveat alone not sufficient to lead to loss of priority – In combination with other circumstances may lead to loss of priority - FAMILY LAW AND CHILD WELFARE [320] – Family Law Act 1975 – Property and maintenance of parties – Orders – Setting aside orders altering property interests – By reason of miscarriage of justice – Failure to disclose relevant information – Exercise of discretion.