Cases and authorities

EQUITY - interlocutory injunctions - claim for interest in shares transferred to transferee on documents giving legal title to transferee - claim that entry into documents resulted from fraud or misleading and deceptive conduct or breach of fiduciary duty - claim of notice to third party taking title from first transferee bearing on priority interest - whether serious question to be tried - whether damages a sufficient remedy

CRIMINAL LAW AND PROCEDURE - Trial - Jury unable to agree - Strict compliance with statutory requirements before majority verdict may be taken - Failure to comply in this instance

TORT – Negligence – Appeal – Whether decision of primary judge materially affected by reference to parts of experts’ reports not admitted into evidence – Whether findings of fact glaringly improbable – Whether apportionment of responsibility for accident appealably wrong.

INJUNCTIONS - freezing orders - where order made ex parte - whether plaintiff discharged duty of disclosure on ex parte application - whether freezing orders should be re-imposed - whether good arguable case of breach of directors' duties - whether plaintiff has shown real apprehension of dissipation of assets that would otherwise be available to meet any judgment

MINING – exploration licences – jurisdiction of Mining Warden's Court – jurisdiction of Minister on grant and renewal of exploration licence – proper construction of Mining Act – factors that may be taken into account but not bound to do so - ADMINISTRATIVE LAW – appeal from Mining Warden's Court – nature of proceedings in Mining Warden's Court – nature of appeal to Court – relevant factors – not irrelevant factors – alleged jurisdictional error – alleged administrative error – failure to consider factors – Wednesbury unreasonableness.

Claim for just allowance on limited basis.

TORTS - negligence - advice as to procedure for preserving assets of insolvent company about to be wound up - whether advice acted upon - whether advice negligent - whether advice caused loss to company

CRIMINAL LAW - Admissisbility of evidence - Test of relevance - ss 56 and 56 of Evidence Act 1995 - Facts in issue, and facts relevant to facts in issue. - CRIMINAL LAW - Exclusion of identification evidence under s 137 of Evidence Act 1995 - Matters of credibility and reliability to be left to the jury. - CRIMINAL LAW - Practice and Procedure - Evidence - Evidence of a resource being used for the purposes of a conspiracy - Whether evidence is admissible against all conspirators or only against one - Unfair prejudice - Directions to jury.

PRINCIPAL AND AGENT - general power of attorney - clause permitting acts whereby a benefit is conferred on attorney - whether attorney was authorised to enter into transactions for the benefit of his business and to the detriment of the grantor - REAL PROPERTY - Torrens System - whether mortgage purportedly executed on behalf of mortgagor by attorney in excess of power confers indefeasible title on mortgagee when registered - whether mortgagor can assert personal equity to remove mortgage from register - EQUITY - unconscionable dealings - solicitor for mortgagees allows transactions to go ahead knowing age of mortgagor, financial position of mortgagor's son and that the transactions will benefit the son's business and cause detriment to the mortgagor - CONTRACTS - unjust contracts - Contracts Review Act - whether, in these circumstances, mortgage loans were unjust contracts - GUARANTEE - wife guarantees mortgagor's obligations at request of husband - wife's practice is to sign business documents whenever requested by husband - where the guarantee an unconscionable dealing or unfair contract

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute - no matter of principle

PROCEDURE - Supreme Court Procedure - Appeals - Appeal from decision of associate Judge awarding costs against appellant - Whether appeal lies to a single Judge of a Division of the Supreme Court or to the Court of Appeal - Whether the Supreme Court Rules 1970, Sch D, Pt 3 and Pt 60 r 17 should be read as excluding mechanical issues determined by an associate Judge

Building & Construction. Adoption of Referee's Report as to negligence in respect of excavation. - Torts - apportionment.

LIMITATION OF ACTIONS – extension of time - collision between HMAS Voyager and HMAS Melbourne - normative limb of s 60I(1)(b) Limitation Act 1969 - construction of application of ss 60G and 60I - no significant prejudice to the defendant by reason of delay - application for extension of time granted.

COSTS – ordinary costs orders – indemnity costs - Discretion to order indemnity costs – whether delinquent conduct or special circumstance to warrant indemnity costs – commencement of proceedings in two for a – insistence on full hearing rather than separate determination of an issue

CRIMINAL LAW - fraud offences - SENTENCING - appeal against severity of sentence - no question of general principle

APPEAL – appeal by way of rehearing – identification of error on part of primary judge – due weight to conclusions of trial judge – correction of undisclosed error - DAMAGES – future economic loss – most likely future circumstances of plaintiff – Civil Liability Act 2002 s 13 - TORTS – negligence – duty of Roads and Traffic Authority to pedestrian walking on median strip – reasonable road user – relevance of plaintiff’s conduct to existence of duty – purpose of median strip - TORTS – negligence – breach of duty – cost of covering duct and similar ducts in New South Wales – likelihood of risk eventuating – seriousness of consequences if risk eventuated – relevance of evidence that risk has not eventuated in past - WORDS & PHRASES – “most likely future circumstances”

SUCCESSION - wills probate and administration - whether appellant entitled to entire estate of deceased - whether appellant was the de facto spouse of the intestate - s 61B(2) and s 32G(1) Wills, Probate and Administration Act 1898 - whether appellant and deceased lived together as a couple - s 4 Property (Relationships) Act 1984 - relationship between definition of ‘de facto relationship’ in s 4 Property (Relationships) Act and list of ‘circumstances’ in s 4 - claim in alternative for provision out of estate under s 7 Family Provision Act 1982 - whether appellant was in a “close personal relationship” with the deceased - s 5(1)(b) Property (Relationships) Act - whether appellant was an “eligible person” within s 6(1) Family Provision Act - whether appellant was a member of the household of which the deceased was a member - EVIDENCE - witnesses - where trial judge forms view that appellant’s unsupported word insufficient - whether trial judge’s view was inconsistent with incontrovertible facts - whether trial judge’s view was based on glaringly improbable evidence, or contrary to compelling inferences - whether trial judge misused his advantage of seeing or hearing witnesses - EVIDENCE - matters relating to proof - onus of proof - whether findings of trial judge were merely findings that appellant had failed to discharge an onus of proof - whether trial judge made positive findings - EVIDENCE - weight and sufficiency of evidence - whether trial judge gave insufficient weight to evidence of witnesses for appellant - EVIDENCE - witnesses - whether trial judge’s acceptance of evidence of witness A called for the respondents contravened rule in Browne v Dunn (1893) 6 R 67 - when that evidence alleged that witness B (earlier called for the appellant) had made a particular statement, witness B had given no evidence concerning the topic of that statement, and the allegation that he had made that statement had not been put to witness B in cross-examination - whether evidence of witness A gave rise to any imputation against witness B - PROCEDURE - whether failure of trial judge to inform parties that he proposed to accord to an item of evidence a significance concerning which no submissions had been made or invited amounted to a denial of natural justice - APPEAL - whether, assuming there had been a breach of natural justice, a new trial would be required - whether “substantial wrong or miscarriage” occasioned - Rule 51.53 Uniform Civil Procedure Rules - EVIDENCE - witnesses - credibility of witnesses - whether, once admitted, evidence of conviction can be used as tending to show a witness lacks credibility

DAMAGES – appeal - ECONOMIC LOSS – future economic loss – whether finding that respondent lost all wage-earning capacity open on evidence – principles – onus on plaintiff to prove loss of earning capacity – no evidence of work available to injured worker with residual earning capacity – scope of appellate review – finding open to review, but limited by exiguous evidence - DAMAGES – Motor Accidents Compensation Act 1999, s 126 – whether assumptions to found award for future economic loss sufficiently stated.

Vendor and purchaser - sale subject to tenancy - vendor obliged under tenancy agreement to maintain roof - vendor obliged under sale agreement to comply with obligation to tenant to the extent to be complied with prior to completion - roof needed replacing - whether within vendor's obligation to tenant - whether vendor could give notice to complete when roof not replaced - whether vendor could terminate for failure by purchaser to complete although rejecting that had to replace roof - construction of obligation under sale agreement - replacement within vendor's obligations - but vendor not in breach and could give notice to complete - vendor's obligation under sale agreement not essential obligation - vendor could terminate - provisions in sale agreement concerning retention of a licence fee in the event of termination - on construction of provisions, only as security for vendor's loss - purchaser could recover most of licence fee.

LIMITATION OF ACTIONS — extension of time to join defendant — application made on fourth day of trial — whether just and reasonable — exercise of discretion by court — principles — STATUTES — s 60C, 60E Limitation Act 1969 considered.

COMMON LAW - motor vehicle accident - interest - ante-dating of judgment - discretionary power - relevant considerations

CRIMINAL LAW - Sentence - Late plea of guilty - Robbery in company - Offences on Form 1 taken into account - Female offender driver of getaway car - Not aware that robbery involved use of weapons - Strong subjective case warranting departure from guideline judgment in R v Henry - Finding of special circumstances

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether a construction contract to which the Act applied existed – definition of “related goods and services” – whether consideration for related goods and services was calculated other than by reference to the value of the goods and services supplied – whether discretionary grounds exist to warrant withholding the grant of declaratory and injunctive relief.

LESSOR and LESSEE - lease of commercial premises on Macquarie Street level and Plaza Level of tower in Renzo Piano development Macquarie Street Sydney - issues between lessors and lessees re (1) whether rent conditional on state of premises being suitable for lessees' intended use - implied precondition - held, No.(2) - whether election exercised in accordance with clause in lease varying rent according to number of kiosks - held, it was not (3) whether lessors entitled to restitution by lessees of $75,000 the lessors paid to Owners Corporation to permit penetrations in floor slab for water sewerage and other services - held, they were not - (4) whether lessors entitled to damages for breach of earlier Settlement Deed by making further claim - held, they were - (5) whether Option of Renewal should be extended notwithsanding failures to pay rent, under discretionary power in s.133F(2) Conveyancing Act - review of litigation and disputes in Leasehold relationship - in view of poor quality of relationship, held, relief refused - Judgment for rent and damages to be assessed.

PRACTICE and PROCEDURE - summary disposal - Anshun defence where additional claim made in Federal Court when other claims arising from same transactions were pending in Supreme Court - plaintiffs' claims in Supreme Court had been commenced under earlier Deed of Release which required proceedings to be brought within defined time in Supreme Court and released other claims - plaintiffs' claims in Supreme Court proceedings were released for large payment under Settlement Deed - on review of facts, held that the plaintiffs acted unreasonably in bringing Federal Court proceedings, which should be summarily dismissed: alternatively, stayed as abuse of process

Appeal against sentence - ongoing supply of small quantites of prohibited drugs - principles of cumulation and totality - parity in sentencing - whether basis for justifiable sense of grievance.

Costs – Whether costs order made in substantive judgment should be varied – Whether there were exceptional circumstances which justified re-opening of costs issue – Whether costs should follow result of appeal – Whether issues argued on appeal were separable so as to justify special costs order.

APPEAL - JUDICIAL REVIEW - s 178 Criminal Procedure Act 1986

NOTICE TO PRODUCE – whether oppressive – whether an invalid alternative to discovery – no substitute for order for discovery or for further and better discovery – notice set aside

ADMINISTRATIVE LAW - application for relief in the nature of Writ of Mandamus for relief against police - police discretion - discretionary remedy

Injunctive relief - developer seeks order restraining entry onto land by police under State Emergency and Rescue Management Act 1989 - developer not acting quickly enough to deal with emergency situation - balance of convenience - pre-eminence of requirement that state instrumentality enter development site to address emergency.

APPEAL – appeal from Local Court to Supreme Court – Local Courts Act 1982 (NSW) ss 73, 74 – relief where determination unfair to one party – need for remittal – discretionary considerations - APPEAL – from judgment in Division – application for leave to appeal – refusal on discretionary grounds – likely costs disproportionate to amount in issue - COSTS – costs follow the event – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – exercise of discretion to refuse to award costs - PROCEDURAL FAIRNESS – breach by Magistrate – adverse findings based on inferences not put to witness – power of Court to substitute judgment

COSTS - motion to vary costs order following correction of arithmetical error in judgment – original costs order confirmed

CRIMINAL LAW - Sentencing - Domestic violence - Manslaughter.

CORPORATIONS - compromises and arrangement - proposal for interlinked schemes of arrangement and amendment of managed investment scheme constitution so that "stapled securities" acquired by outside party for cash - applications for orders under Corporations Act, s 411(1) and for judicial advice under Trustee Act 1925, s 63 - whether potential voting restriction affecting one security holder should be addressed at this stage - where consideration variable but formula fixed and quantum will be ascertained and notified before meetings - where security holders will be subjected to warranty that securities free from encumbrance - whether one holder constitutes separate class for scheme purposes - "no shop", "no talk" and "break fee" provisions - whether court should at convening stage consider avoidance question posed by s 411(17)(a) - meaning of that provision discussed - need for explanatory statement to set out scheme conditions precedent in full

APPEAL – Challenge to findings of fact and primary judge’s reasons – Whether reasons disclosed errors or were insufficient. - EVIDENCE – Document tendered at trial which should have been produced earlier on subpoena – inability of other party to test evidence without adjournment – Document rejected pursuant to s135 of the Evidence Act 1995 – Whether danger that the evidence might be unfairly prejudicial or cause undue waste of time. - DAMAGES – Economic loss – Pre-accident tax returns showing low income – Economic loss calculated by primary judge at a rate higher than income for 8 months prior to accident and as shown in the income tax returns – Whether reasons should have been given for disregarding the record of pre-accident earnings.

CORPORATIONS LAW – Application to bring proceedings on behalf of company – Statutory derivative action – Whether applicant acting in good faith in bringing proceedings – Whether in the best interests of the company that applicant be granted leave – Liquidation – Whether statutory derivative action available in circumstances of liquidation – Statutory interpretation – Reading down a defined term in relation to a particular part of the legislative scheme.

COSTS - ordinary costs orders - indemnity costs - apportionment of costs - Exceptions to usual costs orders - whether misconduct by successful party - probate exceptions - whether genuine offer of compromise

CORPORATIONS - winding up - statutory demand - application for order setting aside - need for "affidavit" supporting the application - PROCEDURE - affidavits - where operative words are "sincerely declare" - where no signature of person taking affidavit - whether extrinsic evidence may be led to prove due swearing

LIMITATION OF ACTIONS - WORKERS' COMPENSATION ACT s 151D(2) - Employer liable to pay compensation - Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 only last employer liable to pay compensation - common law claims against other employers within Limitation Act - WORKERS' COMPENSATION -Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 for purposes of Act only last employer liable for compensation - Sections 15 and 16 not directly relevant to sections dealing with damages - WORKERS' COMPENSATION - WORKERS' COMPENSATION ACT s 151D(2) - Employer liable to pay compensation - Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 only last employer liable to pay compensation - common law claims against other employers within Limitation Act

COMPLEX TRIAL - Pre-trial disclosure

CORPORATIONS - reinstatement of deregistered company - application by sole director and shareholder - whether "person aggrieved" - factual interest in company's co-operating in taxation audit

PROCEEDS OF CRIME: - Commonwealth legislation - whether restraining order under s19 of Proceeds of Crime Act ceased to be in force - effect of s45(2) - validity of application for forfeiture in summons seeking restraining order

PROCEDURE [101]- Amendments to statement of claim- Late amendments- No prejudice- Merits of proposed amendments considered.

Succession - family provision - claim by adult stepdaughter - financial and material circumstances of Plaintiff - obligation upon applicant to place before Court as fully and as frankly as possible all information concerning her financial and material circumstances - contact between Plaintiff and Deceased - statements by Deceased concerning conduct of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claims of beneficiaries - factors warranting the making of the application - nature of provision claimed - any order for provision would benefit not the Plaintiff but the creditors of businesses conducted by her husband and herself

Confidential information - application by defendants for provision of formulae and manufacturing process - opposed - whether provision of samples of product sufficient - whether defendants should be required to test samples in order to work out formulae - whether provision of formulae and manufacturing process by plaintiffs reasonable and necessary - effect of competing scientific evidence.

SUCCESSION - Family Provision and Maintenance - Failure by testator to make sufficient provision - Application by three children of the deceased - No provision in testator's will - Life estate in house left to fourth child with remainder to his daughter - Small estate - Two thirds interest in house - Fourth child held one third interest - Three children with limited assets

Application by Crown to cross-examine witness about prior inconsistent statement