Cases and authorities

APPEAL - Costs Assessor

APPEAL - costs - construction of regulation - ordinary rule - discretion and avenue of appeal

CRIMINAL TRIAL - Quia timet injunction to prevent a threatened contempt of court - Protection of principles of open justice - Power to prevent publication of material prejudicial to a far trial - Necessity for suppression or non-publication orders relating to details of a criminal trial in another State - Exclusion of biased jurors from jury panel - Directions to jury - Integrity of jurors in obeying directions in a criminal trial

CORPORATIONS – incorporated joint venture – whether fiduciary obligations superimposed on corporate relationship – whether obligation of good faith precludes termination of joint venture – whether joint venture terminable on notice – rights of parties on termination of joint venture – whether upon termination of joint venture parties entitled to carry on separate businesses in competition with joint venture vehicle – whether one or other party entitled to name of firm – entitlements to undivided assets. - CORPORATIONS – Internal management – Directors – duties – statutory duties – where following failure of joint venture director terminates business of joint venture vehicle and transfers it to her own corporation – whether breach of director’s duty – Oppression – where corporation under management of alleged victim – whether desire of other party to wind up corporation oppressive - CORPORATIONS - External management – winding up – just and equitable ground – where substratum of trust and confidence underlying incorporated joint venture fails – whether company should be wound up - CONTRACT – Termination – repudiation – where party proposes termination of joint venture upon terms – whether repudiatory – election – where other party evinces intention to continue to perform contract – whether election to affirm – abandonment – where both parties treat agreement as no longer on foot – whether agreement terminated by abandonment - CORPORATIONS – Remedies – derivative action - compensation – profits – where plaintiff sues on behalf of corporation – where claim is for statutory relief - whether plaintiff can be debarred from statutory relief in derivative action by “unclean hands” - TRADE PRACTICES – Misleading and deceptive conduct – pre-contractual negotiations – expressions of aspiration and intent – whether representations as to future matters

PARTNERSHIP - separation agreement entered into on retirement of two members of five member partnership - order for specific performance of separation agreement - whether judgment debt and claim for costs treated as assets of the partnership - whether effect of separation agreement amounted to equitable assignment of those assets to remaining partners - whether to assist in performance leave should be given to remaining partners to enforce costs order and judgment - CONTRACTS - joint creditors release of debt by two of five joint creditors - whether bound other three - JUDGMENTS AND ORDERS - judgment in favour of five defendants - whether joint judgment - whether severed by separation agreement on partnership dissolution - whether severed by bankruptcy of one joint creditor - whether leave should be given to three of five joint creditors to enforce judgment and orders for costs

Claim of privilege for legal advice for portions of goverment departmental communication - whether made out, and whether waived.

CRIMINAL LAW AND PROCEDURE - Conviction by jury for manslaughter on indictment for murder - Sentence - Provocation as basis for conviction - Hearsay provocation not available - Correctness of R v Quartly (1986) 11 NSWLR 332 reserved for determination in suitable appeal - No lesser sentence than imposition appropriate

TORT - Negligence - Whether primary judge's preference for the defendant's witneses was justified - Whether adquate reasons given - Whether judge should have made clear findings as to what happened to the plaintiff.

STRATA SCHEMES - statutory debt - expenses - legal costs and disbursements

JUDGES – disqualification – apprehended bias – whether judge indicated prejudgment as to character and credibility of witness – fair minded lay observer – distinction between active case management and expression of tentative views on substantive issues – conduct of judge in relation to litigant in person - JURISDICTION – appeal from refusal by District Court judge to disqualify himself or herself – judgment or order of judge –District Court Act 1973 (NSW) s 127 - PREROGATIVE RELIEF – prohibition – discretionary relief – intervention in proceedings at interlocutory stage – availability of appeal from final determination in District Court - WORDS & PHRASES – “judgment or order” – District Court Act 1973 (NSW) s 127 – “fair-minded lay observer”

Civil Procedure - disqualification - reasonable apprehension of bias - costs.

COMMON LAW - striking out defence and judgment

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether adjudicator considered material in breach of s20(2B) of the Act – whether adjudicator failed to comply with s22(2) of the Act – whether adjudicator misunderstood terms of contract, or their application – whether any such error invalidates determination – denial of procedural fairness – whether s21(4) of the Act imposes mandatory requirement on adjudicators if they are unable to make a determination on evidence before them – no evidentiary onus or presumption imposed by the Act.

BUILDING & CONSTRUCTION - Adoption of Referee's report as to causes and results of subsidence of the support for a house resulting from excavation and faulty piling work next door. - REAL PROPERTY - General principles Nature of duty of care under s177 of Conveyancing Act 1919. Whether it extends to support of adjoining buildings. Held it does. Whether it includes omissions. Held it does not. - TORTS - NEGLIGENCE - STATUES - Whether a statutory cause of action for breach of condition of development consent arises in respect of breach of a condition imposed under s78 and s78F of Environmental Planning & Assessment Regulation 1994. Held it does. - INSURANCE - Professional indemnity insurance. Whether a breach of terms occurred. Held there was a breach.

Family Law - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - signficant contributions of Plaintiff as homemaker - the Court should not be diverted from the clear words of the statute, which looks to past contributions actually made by the parties - Plaintiff received from Centrelink moneys to which she was not entitled - Claim by Plaintiff that Defendant indemnify her for one half of her liability to Centrelink - ex turpi causa non oritur actio - the Court will not lend its aid in support of a claim grounded upon Plaintiff's illegal conduct - to do so would be highly offensive to public policy.

PROCEDURE - contempt, attachment and sequestration - alleged breach of consent order requiring payments of money - where terms of order uncertain or ambiguous - resort to surrounding circumstances - no real clarification provided by surrounding circumstances - no alternative but to construe order according to its terms - motion dismissed

Serious sex offender - Application for extended supervision order

REAL PROPERTY [315] – Partition of land – Statutory trust for sale or partition – Discretion of Court – Existence and extent of discretion – Contractual limit on disposal of interest.

CRIMINAL LAW - appeal against inadequacy of sentence - supply prohibited drug - neither latent nor patent error found - special circumstances justified - attitude of Crown on sentence

CRIMINAL LAW — Sentencing — prior criminal history — parity in sentencing

SUCCESSION [95]- Original will destroyed by a person other than the testatrix after testatrix's death- Whether the grant of probate and administration should be limited- Held that the proper practice is to make an unlimited grant- Section 40D of the Wills, Probate & Administration Act will afford protection to the administrator if the unlimited grant is later revoked.

COMMON LAW - defamation - application to dispense with jury - answers to interrogatories - setting aside of subpoenas - overriding purpose

CONTRACTS - specific performance - contract to grant mortgage of land - not evidenced by writing - but promisee shows acts of part performance in reliance on the promise - specific performance granted

CRIMINAL LAW – sentencing – characterisation of offence as “upper level” of objective seriousness – relevance of psychiatric status to objective seriousness of the offence – offence properly characterised as mid-range of seriousness - CRIMINAL LAW – sentencing – schizophrenia - applicant’s failure to take medication - whether psychological status was applicant’s own fault – proof beyond reasonable doubt of matters adverse to accused – failure of trial judge to take into account mental disorder in assessing objective seriousness - CRIMINAL LAW – sentencing – application of ss 21A, 54A and 54B of Crimes (Sentencing Procedure) Act 1999 - maliciously inflicting grievous bodily harm with intent – whether sentence manifestly excessive

FAMILY LAW AND CHILD WELFARE – Property (Relationships) Act 1984 – s 5(1)(b) – whether parties in a "close personal relationship" where not living continuously in the same house – whether "personal care" in s 5(1)(b) includes emotional support – relevance to determination of relationship of non-disclosure of cohabitation to government authorities – adjustment of property interests – failure to take into account part of appellant’s assets – obligation of parties to property relationship proceedings to make full and frank disclosure of relevant financial circumstances.

Medical negligence - oral surgeon performs wisdom tooth extraction - alleged breach of duty of care in failure to diagnose and treat deep neck space infection - causation - whether earlier antibiotic treatment would have made any difference - expert evidence given concurrently - effect of significant agreement of experts on contentious issues - damages - psychological/psychiatric reaction to treatment - whether evidence that psychological/psychiatric damages caused by treatment - difficulties in individual heads of damages.

CRIMINAL LAW - Defence of mental illness - consequential orders where accused acquitted on grounds of mental illness - MENTAL HEALTH - orders to be made after accused acquitted on grounds of mental illness.

Sentencing - offences of accessory after the fact and concealing a serious offence - principal offences alleged against offender's friend and partner respectively - pleas of guilty and other favourable subjective features

CIVIL PROCEDURE – notices to produce - setting aside - oppressive - relevance - notice to produce should not be used to seek further discovery

HIGHWAYS – creation and extinction of highways – whether road public or private – dedication – what constitutes dedication – implications arising from circumstances of subdivision – implications arising from council’s subsequent treatment of road – dedication of road included lane leading onto road. - HIGHWAYS – creation and extinction of highways – whether road public or private – dedication – acceptance of dedication – formal acceptance of dedication – public expenditure – presumption from user – implications arising from council’s subsequent treatment of road. - REAL PROPERTY – Torrens title – indefeasibility of title – exceptions to indefeasibility – adverse possession of others and possessory title – land in possession of another after issue of certificate of title – New South Wales – council land governed by Roads Act 1993 (NSW) and common law – land not governed by Torrens title – once a highway always a highway. - REAL PROPERTY – Torrens title – indefeasibility of title – exceptions to indefeasibility – adverse possession of others and possessory title – land in possession of another after issue of certificate of title – New South Wales – intention to possess land to the exclusion of all others – land necessary for use and enjoyment of property but no exclusive physical control. - REAL PROPERTY – Torrens title – easements by implication from conveyance of land in certificate of title in which land is described by reference to a plan which shows it abutting a lane owned by vendor which gives access to public road – subsequent transfers of lot with benefit of easement. - REAL PROPERTY – easements – easements generally – creation – by express agreement or under statute – statutory easements – power of Court to create easements – vehicular access and parking – availability and practicality of other parking – danger and inconvenience to neighbours.

REAL PROPERTY – Torrens System – indefeasibility of title – equitable mortgage – registered mortgage – forgery – fraud - MORTGAGOR and MORTGAGEE – construction of mortgage – equitable mortgage – registrable on default – fraud in registration – indefeasibility - TRADE PRACTICES – misleading and deceptive conduct – Fair Trading Act – solicitor's attestation of forgery – solicitor's representation of instructions when not received – trade and commerce activity – reliance.

CRIMINAL LAW - committal proceedings - refusal of direction under s.93 Criminal Procedure Act 1986 that complainant attend to give evidence - legal principles - special reasons test - adequacy of reasons

PROCEDURE [107] – Supreme Court procedure – Practice under Supreme Court rules – Separate decision of questions – When appropriate.

Sentence appeal - Drug Court referral - initial sentence - failure to adjust for accumulation - no practical effect - sentence should still be corrected.

Criminal Law - sentencing - federal offence - sentencing range for low level trafficable quantities of cocaine and heroin - combined discount excessive - discretion exercised not to intervene.

LEAVE TO APPEAL – exercise of supervisory jurisdiction – claim not pleaded before primary judge – appeal against costs order – costs of solicitor acting for himself – application for leave without real prospects of success

COMMON LAW - construction of contract - meaning of "month of shipment"

PRACTICE AND PROCEDURE - costs - defendant succeeded in resisting winding up order - defendant's solicitor was paid by third parties - whether defendant entitled to costs order - whether, in fact, defendant and third parties arranged for recoupment of payments if defendant succeeded and obtained order for costs

Contract - Construction - Consideration of principles - Admissibility of evidence of negotiations anterior to entry into of written contract - Dispute between developers as to proper construction of agreement treating with profit share arrangement - Complex of close issues of construction requiring consideration of what were and were not 'accounting practices' and/or 'the normal accounting practices of the defendant' - Whether or not the concept of an internal rate of return and the application of the formula to derive this rate were properly described as 'an accounting practice' or 'accounting practices' - Whether contract dictated the manner of calculation of an internal rate of return - Whether the discount rate to be compounded on a monthly basis or an annual basis - Consideration of discounting practices - Variation of contract

COMMON LAW - Criminal Assets Recovery Act ss 25 & 26 - statutory construction - confiscation - assets forfeiture order - proceeds assessment order

CONTRACTS [17] [77] [79]- Lack of intention to create legal relations- Lack of consideration- Lack of act of part performance by plaintiff that is unequivocally referrable to the alleged agreement. ESTOPPEL [32]- Proprietary estoppel- Proceedings brought by plaintiff against defendant to claim half interest in family home- Alleged oral promise made by the defendant that he will give one half of the property to the plaintiff "when the time comes"- Whether the defendant made a representation in circumstances that show the promise made is understood to be irrevocable- Whether the plaintiff suffering a detriment, if any, is a necessary ingredient of proprietary estoppel- The quantum of relief given must be proportionate to the reasonable expectation of the plaintiff balanced by the monetary value of the detriment suffered- Plaintiff's case essentially that the defendant promised to make a gift- No equity- Case fails.

PRACTICE and PROCEDURE - Reference and Report UCPR 20 Div.3 - report on causation of Pool Failures consisting of blistering and discoloration in swimming pools manufactured by spraying fibreglass on upturned mould - examination of detailed criticisms of Referee's Report - Report adopted.

PROCEDURE - security for costs - appeal against order of Associate Judge that plaintiff provide security - proceedings under Property (Relationships) Act - plaintiff resident in USA - whether requirement for security will shut plaintiff out from pursuing claim - where on plaintiff's own evidence lawyers are acting on contingency basis - whether defendant responsible for depletion of plaintiff's assets - where plaintiff's financial resources came wholly from defendant's benefaction

NEGLIGENCE - solicitor and client - deemed refusal of plaintiffs' application to local authority to develop land - appeal against refusal to Land and Environment Court - clause 45 of Byron Shire LEP - Council required to be satisfied about prior adequate arrangements for provision of sewerage services to the land - condition precedent to approval - appeal flawed from the outset - plaintiffs never advised of that fact by defendants - further appeal pursuant to s 56A of the Environmental Planning and Assessment Act 1979 against Commissioner's decision - appeal limited the questions of law - decision of Commissioner a question of fact - second appeal flawed from the outset - plaintiffs never advised of that fact by defendants - application to Supreme Court for prerogative relief in respect of Commissioner's original decision - no jurisdiction - proceedings flawed from the outset - plaintiffs never advised of that fact by the defendants - reliance by defendants upon defence of advocates immunity - no circumstances found for immunity to apply - damages -plaintiffs entitled to recover wasted legal costs and expenses of futile proceedings

Contract - master franchise agreement - option for renewal - if and only if master franchisee had been and was in full compliance with the agreement for its term - whether breach of obligation to use best endeavours to locate retail outlets - or of obligation to furnish written reports on conduct of retail outlets - agreement novated to new master franchisor - consideration of what was the relevant term - and of what was required by way of best endeavours and for timely reporting - on facts, no breaches.

Criminal Law - sentencing - aggravated driving causing death - contributory negligence - onus of proof - sentence not manifestly excessive - psychological report not tendered at hearing - lesser sentence not warranted - no miscarriage of justice.

Sentence appeal - parity - co-offender's sentence suspended to undertake Drug Court programme - whether relevant comparison.

CRIMINAL LAW — Sentencing — totality where interstate offences — discount for acknowledging previously unknown guilt

Criminal Law - sentencing - aggravated indecent assault - circumstances of aggravation not pleaded - no double counting - sentences not manifestly excessive.