Cases and authorities

DAMAGES – trespass to property – general and aggravated damages – principle of no double counting – whether manifestly excessive - DAMAGES – trespass to property – exemplary damages – proper approach for awarding – type of conduct attracting – whether manifestly excessive - TRADE PRACTICES – consumer protection – misleading and deceptive conduct – whether in trade or commerce – Trade Practices Act 1974 (Cth), s 52 – application to prescribed information providers - whether conduct protected by Trade Practices Act 1974 (Cth), s 65A - TRADE PRACTICES – consumer protection – interpretation of Trade Practices Act 1974 (Cth), s 52 and s 82 – whether the provisions should be read down so as not to extend to publications that engage defamation law – whether the provisions should be read down so as not to extend to publications defensible under defamation law - WORDS AND PHRASES – “in trade or commerce”

COSTS - Calderbank letter - rejection of offer not unreasonable.

TORT - personal injury - motor vehicle accident - conflicting liability evidence.

Serious sex offender - Continuing detention order - Extended supervision order

ABORIGINALS- Disposals of land not in accordance with the Aboriginal Land Rights Act 1983 are void under s 40(2)- whether purported certificates issued by the secretary of a Local Aboriginal Land Council comply with the requirements of s 40D(2)- whether the addition of references to the "land not having cultural significance" in the certificate is explanatory or qualificatory in nature. CONVEYANCING- Indefeasibility of title- whether statute that voids a transferor's disposal of land overrides the indefeasibility of a transferee's registered title. The relevant Act in the circumstances prevailing required a certificate be given that the relevant disposal of Aboriginal land did not contravene the Act. A certificate was given that the disposal did not contravene the Act in that the land is not of cultural significance to Aboriginal people of the area. Held by Giles JA (Tobias JA agreeing, Young CJ in Eq dissenting) that the certificate was insufficient. The Act said that the consequence of the non issue of a valid certificate was that the disposal was void. However one transferee obtained a registered title and this was held by all judges to confer an indefeasible title notwithstanding the legislation.

COSTS ASSESSMENT - disclosure of fees of senior counsel - statutory construction - person concerned - reasonable opportunity to make submissions - disclosure - basis upon which fees were to be charged - materiality - reasons and appeal as of right

EVIDENCE - Admissions - obtained during unlawful detention - whether should be admitted - CRIMINAL LAW - whether detention after arrest unlawful .

BUILDING CLAIM - Terms of Settlement - arising from supply of building goods or services - collateral contract - jurisdictional time limit

COMPROMISE AND SETTLEMENT – determination of questions relating to compromise in proceedings – whether obligation to pay settlement sum independent or conditional on prior satisfaction of other provisions – whether upon proper construction payment of entire settlement sum accelerated – if so, whether acceleration void as a penalty.

Costs - in [2007] NSWSC 1427 - Family Provision application by de facto failed - Court refused to order plaintiff to pay costs - plaintiff applied for order for costs out of estate under FPAct s.33(1) - application refused on discretionary considerations.

CRIMINAL LAW – application for leave to appeal against sentence – whether sentence manifestly excessive – whether objective and/or subjective circumstances justified a sentence less than range in guideline judgment – whether sentence outside range of sentencing discretion – whether disparity in sentences

CONTRACTS [146] - General contractual principles – Harsh and unconscionable contracts and statutory remedies – Contracts Review Act 1980 – “Unjust” contract – High interest rate, desperate borrower, inability to negotiate terms – Plaintiff’s demands for full contractual interest prevent refinancing.

Search warrants - Validity - Description of premises - Reporting obligations

ASSOCIATIONS AND CLUBS – incorporated associations – expulsion, suspension and disqualification – power to expel, suspend and disqualify – whether relations between members are justiciable – rules of association have effect of covenants under seal between members – disregard of rules – denial of natural justice - assessment of damages. - ASSOCIATIONS AND CLUBS – incorporated associations – whether registered constitution was inconsistent with by-laws – registered constitution prevails in cases of inconsistency.

CONVEYANCING – the contract and conditions for sale – description of property and subject matter of sale – failure to provide the property described in the contract for sale. - CONTRACTS – general contractual principles – consideration – what amounts to consideration – forbearance to exercise a right to rescind.

Search warrants - Validity - Night warrants - Validity of seizure - Summons under s 56(2) of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 - Forfeiture - Obligation to report

Separate determination - liability

CRIMINAL LAW – Appeal against conviction – Duress – Whether threat directed towards procuring commission of offence – Whether threat sufficiently imminent - Whether appellant voluntarily joined illegal enterprise.

EVIDENCE [74] – Facts excluded from proof – On grounds of privilege – Professional confidence – Legal profession – Documents – Document prepared for legal proceedings – Evidence Act 1995 s 119(b) – Documents prepared for purpose of preparing expert’s report are prepared for purpose of the client being provided with professional legal services.

CORPORATIONS - reinstatement of registration - application by workers compensation insurer - standing as person aggrieved by the deregistration - deregistration frustrates plaintiff's statutory right to give notice for recovery of premium adjustment after wage audit - special considerations affecting whether it is just that the registration be reinstated - considerations affecting adjournment of winding up application

CONVEYANCING [252] Creation of easement by prescription- Application for grant of an easement under s 88K Conveyancing Act to widen an existing residential driveway- Whether easement is reasonably necessary for the effective use or development of land having benefit of the easement- Use of land having benefit of an easement not inconsistent with public interest- The extent of compensation the court considers to be appropriate- The exercise of judicial discretion on whether an easement is to be granted.

COSTS - Bullock order - whether joinder of a successful defendant the result of conduct of an unsuccessful defendant - plaintiff ordered to pay costs of successful defendant incurred in defending plaintiff's claim but with indemnity for such costs from unsuccessful defendant

PROCEDURE – where defendant serves large number of affidavits outside time limited by pre-trial directions – where plaintiff unable to meet same in time for hearing – where hearing has been expedited due to hardship to plaintiff – where default unsatisfactorily explained – where refusing leave would deny defendant opportunity to adduce evidence on central issue in case – where case could be heard with a deferral of seven weeks without disrupting list and without incompensible prejudice to plaintiff – whether leave to rely on late affidavits should be granted.

Criminal Practice & Procedure - Appeal against sentence - serious assault - relevance of mental retardation - special circumstances - parity

Confiscation of property - declaration - whether the Court can declare that defendant used specific aliases - this is a finding of fact but not an order - application refused.

CORPORATIONS - winding up - recovery at suit of liquidator against directors for insolvent trading - claim by one director for indemnity by company - circumstances not within indemnity provision - indemnity in any event precluded by statute - TRADE AND COMMERCE - misleading or deceptive conduct - representations by directors and chief financial officer to director in board meeting - representations by director to another director and other persons at due diligence committee meeting - whether conduct "in trade or commerce" - CORPORATIONS - whether one corporation a "related body corporate" of another - evidence needed

ADMINISTRATIVE LAW - alleged denial of natural justice and error of law

COMMON LAW - registrars - applications - exercise of discretionary power and reasons

COMMON LAW - costs assessment - form of application and service - costs of assessment - setting aside of judgment in the Local Court

COSTS - damages sought for negligent legal advice - whether legal representation engaged - whether breach of duty of care - whether breach of express or implied term of contract or warranty - whether breach of obligations under the Trade Practices Act

Contempt of court - sentence - refusal to be examined in confiscation proceedings - relevant principles.

ASSOCIATIONS AND CLUBS [51] – Incorporated associations – Other matters – Rules – Rule relating to functions of “foundation” members – Whether invalid as void for uncertainty or by reason of conflict with Associations Incorporation Act 1984.

CONTRACT – construction–whether terms of contract accord with “commercial reality” - CONTRACT – construction – admissibility of extrinsic material

CORPORATIONS – Co-operative Society – rules – construction – where order made for amendment of rules under oppression provisions – where effect of rule depends upon registration – whether regard can be had to matters not apparent on register – rectification – whether rules can be rectified. - COSTS – where dispute as to construction of rules of co-operative society – whether costs should be born by society or by unsuccessful plaintiffs. - PROCEDURE – Proceedings after judgment – motion for construction or rectification of rules amended pursuant to Court Order made by consent – where construction or rectification of agreement for compromise of substantive proceedings involved – whether justiciable on motion in proceedings.

CORPORATIONS – winding-up – discharge of order – termination of winding-up – solvent company – failure to lodge tax returns, prepare accounts and keep or provide books to liquidator – public interest and commercial morality – undertakings proffered – not against public interest to terminate winding-up.

COSTS – LITIGANT IN PERSON – Whether self represented litigant should pay costs occasioned to other parties by reason of litigant’s lack of legal training rather than by reason of unreasonable conduct.

COURTS AND JUDGES – Statement of reasons for decision – Purpose – Content – Adequacy – PROCEDURE – principles regarding determination of application to set aside default judgment – delay – arguable defence – prejudice

COMMON LAW - default judgment - application to set aside - whether arguable defence to judgment debt - promisory representation - reliance

Practice and procedure - Application for a case management order not being for a separate question determination - Case management order sought was for all questions of liability, injunctive and declaratory relief to be determined in advance of the question of quantum of any damages - The trial judge would initially proceed to determine the one set of issues, would reserve and as soon as practicable deliver judgement - If liability be established, the balance of the quantification of damages issues would be heard on a later occasion - Consideration of the differences between this procedure and the more conventional ‘separate question determination’ procedure - Consideration of the appropriate matters to be taken into account where urgent relief sought from the Commercial List and where a quantum hearing could only practicably be heard at some considerable time into the future

FAMILY LAW - de facto relationships - adjustment of property interests - contributions to purchase of property and payment of principal and interest for mortgage - contributions to renovation and maintenance of residence - adjustment for the provision of accommodation - contributions generally.

[COMMERCIAL CONTRACT] - Determination of separate questions - Contract for Sale of contaminated Land subject to EPA declaration - Whether a "Site Audit Statement" issued by Environmental Auditor within meaning of that term in the Contract - Whether plaintiff entitled to Retention Amount of $500,000 - Whether plaintiff required to complete any Remediation Works.

CRIMINAL LAW – theft – Criminal Code (Cth) s 131 - CUSTOMS – goods subject to the control of Customs – where property in physical custody of entity other than Customs – where Customs had not granted authority to move goods – forfeiture of goods – Customs Act 1901 (Cth) - JURISDICTION – federal jurisdiction – application of Criminal Appeal Act 1912 (NSW) s 5F – operation of Judiciary Act 1903 (Cth) s 68 - JURISDICTION – appropriate circumstances for grant of certificate under Criminal Appeal Act 1912 s 5F - WORDS & PHRASES – “control of property” – “belonging to another” – Criminal Code (Cth) s 131

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. No affidavit verifying demand. Whether judgment was a judgment debt. Held it was and demand set aside for failure to have affidavit verifying demand.

CRIMINAL LAW AND PROCEDURE - Sentence - Sexual assault - Attempt to pressure complainant not to testify - Offender and complainant in consensual relationship - Terminated by complainant but not accepted by offender - Single outbreak of offending followed by attempt to avoid consequences - Youth of both parties - Total sentence after cumulation excessive

CRIMINAL LAW – Application for leave to appeal against sentences – Detention of complainants for advantage – Assault – Aggravated sexual intercourse without consent (in company) – Accessorial offences and offence as principal in first degree – Wether errors in findings and approach by sentencing judge – Whether factual foundation for sentencing materially changed – Parity principle – Principle of totality for offences – Youth – Whether sentences manifestly excessive.

CRIMINAL LAW AND PROCEDURE - Sentence - Courier importing heroin secreted internally within her body - Conduct undertaken for reward so as to reduce gaming debts - Erroneous finding of duress - Inadequacy of sentence - Assessment below detectable pattern - Apparent overestimation of mitigatory factors - Crown appeal allowed

EQUITY – Estoppel – Proprietary estoppel – Property transferred for a stated consideration of $1.00 – Expectation of lease for reduced rent for another property owned by transferee – Whether critical date for consideration of reliance was date transfer signed or date transfer registered – Whether representation sufficiently certain.

Costs - Ordinary costs - Indemnity costs - Costs on a party/party basis - Calderbank offer - Offer of compromise - Whether costs should be paid on an indemnity basis - Settlement negotiations - Reasonableness of offer - Unreasonableness of refusal of offer - Costs at first instance - Costs on appeal - Separate costs in respect of separate claims - Costs where appellant pursues claim on a different basis on appeal - Costs where outcome of appeal is less favourable than offer.