Cases and authorities

CORPORATIONS – winding up in insolvency of limited partnership as Part 5.7 body - benefits of winding up – unsecured creditors – priority of employee claims - PARTNERSHIP – whether limited partnership should be wound up under Corporations Act or dissolved under Partnership Act

CRIMINAL LAW - trial by jury - content of written directions to jury - provision of chronology to jury as part of summing up - complex trial involving large number of documentary exhibits

PRACTICE AND PROCEDURE – SUBMITTING APPEARANCE – Party who files submitting appearance cannot later set aside judgment on ground that it was entered in party’s absence unless submitting appearance procured by fraud or other vitiating factor.

MANSLAUGHTER - unlawful and dangerous act - stabbing in domestic context

CRIMINAL LAW – application to reopen appeal pursuant to s 43 Crimes (Sentencing Procedure) Act 1999 – whether re-sentencing “contrary to law” – whether applicant entitled to discount for assistance in re-sentencing – whether consideration was given to assistance when re-sentencing – examination of reasons for judgment – applicant not denied benefit of discount for assistance in re-sentencing

Environmental offence - permitting land to be used as a waste facility - "permitting" requires awareness of the actions of using the land as a waste facility and failure to exercise a right or power to prevent it - does not require purpose that land be used as a waste facility.

ENVIRONMENT AND PLANNING – existing use rights – characterisation – liberal approach to be adopted – land to be described only at level of generality necessary and sufficient to cover individual activities – characterisation not to be so general that it embraces activities or transactions which differ in kind – existing use can evolve over time – town planning purposes to be emphasised when characterising existing use – whether trial judge erred in characterising existing use at relevant date - ENVIRONMENT AND PLANNING – refreshment room prohibited under local planning instrument – change of use permitted under incorporated provisions of Environmental Planning and Assessment Regulations 2000 – development application lodged with local council to install awning for use as a café – premises contained no existing use rights – whether trial judge erred in finding development application effected a change of use - ENVIRONMENT AND PLANNING – development consent – Environmental Planning and Assessment 1979 s 81A - development consent did not make permissible use of land otherwise prohibited under relevant planning instrument - ENVIRONMENT AND PLANNING – privative clause – Environmental Planning and Assessment Act 1979 s 101 – validity of development consent cannot be challenged after three months from date of public notice – proceedings brought out of time – s 101 applies to a challenge to a grant of consent not to construction of consent

EQUITY – availability of degree of specific performance where primary judge concludes that defendant had neither committed a contractual breach nor so conducted itself as to give rise to its reasonable apprehension – whether costs should be awarded against party unsuccessfully opposing specific performance in such circumstances – body corporate in a home unit building contracted with apartment owner to lodge development application with council with all due despatch and to use best endeavours to secure development consent from council for creation of extra apartment in attic - WORDS AND PHRASES – “all due despatch” – “best endeavours”

APPEAL AND NEW TRIAL - Insufficient findings of primary fact - Inadequate reasons - No question of principle - NEGLIGENCE - Unsafe system of work - Damages - Insufficient findings of primary fact - Inadequate reasons - No question of principle

COMMON LAW - summary judgment - leave to file cross-claim - pleading

PROCEDURE [90]- Supreme Court procedure- New South Wales- Procedure under rules of court- Parties- Representative orders- Persons having "the same interest" in proceedings- What constitutes- Plaintiff and other named persons claim defendant represented that monies loaned under an investment scheme would be guaranteed- Group seeks damages when investment fails- However, plaintiff could not prove same representation made to entire Group- Proceedings cannot be continued as class action.

COSTS

Strike out statement of claim - nuisance - injurious falsehood

LANDLORD AND TENANT - assignment of lease - refusal of landlord to consent to assignment - whether withholding of consent unreasonable

PRINCIPAL AND AGENT – AUTHORITY – Whether fraudster had actual or apparent authority to enter contract for First Defendant. - TRUSTS – FIDUCIARY DUTY – Whether wife of fraudster knew of fraudulent activity – whether wife was knowing recipient of misappropriated funds. - BANKING – CHEQUES – CONVERSION – Whether cheques obtained by fraud converted by Fifth Defendant.

Criminal law - Sentence - Accessory after the fact to murder - Assistance to authorities

REAL PROPERTY – Torrens title – Caveat – Application to extend caveat – Caveatable interest comprising mortgage granted by defendant to plaintiff – Where director of plaintiff company was defendants’ solicitor at time of entry into mortgage and loan agreement – Solicitor in a position of conflict between duty to defendants and personal interest in lending company – Circumstances requiring that, for consent to be fully informed, defendants would need to have been informed of their rights and obligations under the mortgage and loan as well as related transactions with plaintiff which may have influenced their decision to execute mortgage – Prima facie invalidity of mortgage not rebutted where fully informed consent not given – Application to extend caveat dismissed. - (NSW) Real Property Act 1900, s 74K

Refusal of adjournment - Local Court - entry of judgment

WINDING UP – Examination – Liquidator – Application to set aside summonses for examination – Whether summonses relate to “examinable affairs” – Whether summonses sought for improper purpose – Where liquidator has reason to apprehend that deregistered company’s trade exchange scheme was transferred to, or continued to be conducted through, other entities, after deregistration – Whether persons funding liquidator, who claim to be creditors, could be creditors of the company if their claims arose from participation in trade exchange scheme after company’s deregistration – Operation of Part 5A.1 of the Corporations Act 2001 (Cth) does not lead to necessary result that no person may be taken to have acquired any rights against, or to have become subject to any liability, to the company during the period of deregistration – Held that investigation into whether, and if so, when, asserted claims against the company may have arisen, whether before or after deregistration, is within the legitimate scope of examinations under s 596A or s 596B of the Corporations Act. - CORPORATIONS – Reinstatement of deregistered company under s 601AH(2) of Corporations Act 2001 (Cth) – Measure of retrospective validation, under s 601AH(5), of acts carried out by persons purporting to act as officers of deregistered company. - CORPORATIONS – Application to restrain creditor from accessing records of examination – Statutory regime entitling creditors of a company to access written records of examination – Section 597, Corporations Act – No basis for restricting such access. - (CTH) Corporations Act 2001, ss 596A, 596B, 597, 601AH

DEFAMATION – identification – whether publication identifies plaintiff – where plaintiff development engineer employed by local council – where council commissioned report into plaintiff’s work as engineer – where plaintiff not named in report - DEFAMATION – publication – whether publication published by defendant – where report written by employee of company – where defendant parent company of company whose employee wrote report – where companies in corporate group had common officers, common offices, and common fax number – where companies in corporate group produced consolidated financial statements – whether defendant and subsidiary in partnership – whether subsidiary agent of defendant – whether defendant positively accepted responsibility for publication by subsidiary – whether defendant vicariously liable for publication by subsidiary - DEFAMATION – imputations – whether imputations arise from matter complained of – whether imputations defamatory – whether imputations more than an insult – where plaintiff development engineer employed by local council – where council commissioned report into plaintiff’s work as engineer – where report uses words such as “inappropriate”, “not necessary”, “exceeded his role as an approving and checking engineer”, “unsuitable outcome”, “poor understanding of basic hydraulics”, “basic misunderstanding or incorrect application of council’s requirements”, “basic inability to understand geometry is exhibited”, “serious breach of the staff member’s obligation to provide proper engineering conditions”, “engineering process has not been thought through properly”, and “difficult, if not impossible, to defend the actions of a fellow engineer” – whether imputations pleaded arise – whether imputations that arise are defamatory - DEFAMATION – trial under s 7A Defamation Act 1974 – trial by judge alone

Ferry Master - Allegation of Misconduct - Termination of Employment - Appeal to Transport Appeals Board - Judicial Review - Unreasonable Decision - Apprehended Bias - Composition of Tribunal - Conduct of Tribunal - Failure of all Three Tribunal Members to Participate in Decision - Breach of Contract - Implied Term of Mutual Trust and Confidence

Civil Procedure - cross-claim by a non party - joinder.

Family Provision. Application by daughter and grandchild. Legacy for daughter. Grandchild's claim dismissed as no dependency upon the deceased.

COSTS – power to award on stated case – matter of public interest – uncertainty as to legal authority to prosecute CRIMINAL APPEAL – stated case under Criminal Appeal Act 1912, s 5B

WILLS, PROBATE and ADMINISTRATION - probate - revocation of grant - conduct of executor - on extensive consideration of events in estate administration where there had not been effective co-operative action by three executors the grant was revoked and a further grant was made to two of them.

EQUITY [400] – Equitable remedies – Specific performance – Defences – From conduct of parties – Absence of readiness and willingness – Averment and proof of – Whether averment necessary in statement of claim for specific performance – Whether necessity for averment removed by UCPR r 14.11.

SUCCESSION - Family Provision - Claim by two adult step-children - Financial and material circumstances of Plaintiff - Whether each Plaintiffs has been left without adequate provision for his or her proper maintenance - Competing claim of Defendant, who is chief object of testamentary beneficence of Deceased - Plaintiffs must establish their claims upon their own merits - Their claims cannot be enhanced by establishing (if such be the case) that the Defendant, if she had been omitted from her father's will, would not have succeeded in a claim under the Family Provision Act.

FAMILY PROVISION - de facto relationship over 20 years - testator by will left plaintiff half proceeds of sale of house and also furniture and personal effects - also half share proceeds of insurance - assets about $1,009.000 - residue to 4 adult daughters of testator - plaintiff received assets worth about $40,000 and entitled to $310,000 from sale of house - aged 63 suffering dementia and other disabilities, Age Pension. Medical evidence showed need for hostel care, entry bond $180,000 - HELD provision adequate, application refused.

CRIMINAL LAW - trial by jury - application by juror to be discharged during trial - jury deliberations commenced - juror under stress because of time constraints arising from imminent new employment - juror unable to deliberate properly - juror discharged - separate application by Accused for discharge of another juror - application refused - order made under s.22 Jury Act 1977 that trial continue with jury of 10

CRIMINAL LAW - Sentence for manslaughter after trial - SENTENCE - killing in the course of armed robbery.

Strike out remaining parts of statement of claim: due despatch

BUILDING CONTROL AND TOWN PLANNING – Community Land – Classification of land as Community Land - Local Government Act 1993, Sch 7 cl 6(2) - ENVIRONMENT LAW – Parks and reserves – Whether Community Land - Local Government Act 1993, Sch 7 cl 6(2) - TORRENS SYSTEM – Indefeasibility of title – Whether statute forbidding transferor to dispose of land overrides indefeasibility of transferee’s registered title - STATUTES – Implied Repeal – Inconsistent statutes – Sequential effect – Whether a later statute which renders a transfer of land null and void is inconsistent with the indefeasibility provisions of the Real Property Act - Local Government Act 1993, s 45(1) - COURTS AND JUDGES – Courts – Jurisdiction and Powers – Power of courts to order rectification of the Torrens Register - Land and Environment Court Act 1979, s 20(2), Real Property Act 1900, s 138 - WORDS AND PHRASES – Community Land -

EVIDENCE – presumption of delivery in course of post – relationship of Evidence Act 1995 (Cth) to other Acts – Evidence Act 1995 (Cth), ss 160 and 163 NOTICE – service by post – letter from Commonwealth agency – evidence of non-delivery or non-receipt – Acts Interpretation Act 1901 (Cth) s 29 – Income Tax Assessment Act 1936 (Cth) s 222AOF – Evidence Act 1995 (Cth) ss 160 and 163 TAXATION – liability for failure to remit tax withheld from salary entitlements – Income Tax Assessment Act 1936 (Cth) s 222AOE WORDS & PHRASES – “contrary intention” in statute – “give”, “serve”, “send” a notice – “sending it by post”

REAL PROPERTY – Land under Torrens system – Interests in land – Restrictive covenant – enforcement – remedies – mandatory injunction – whether damages a sufficient remedy – whether injury to plaintiffs’ rights slight – whether compensable by damages – where defendants proceed to construct after warnings – where defendants aware that risk involved - EQUITY – Remedies – Injunctions – mandatory injunctions – to enforce negative covenant – discretion – whether damages a sufficient remedy – defences – laches – where defendants did not and could not reasonably have inferred acquiescence – hardship – where defendants proceeded on legal advice subsequently shown to be erroneous – where defendants aware that issue was debatable

DEFAMATION - pleading - defamation action by solicitor/advocate - advocate's immunity from suit - whether immunity similar to protection afforded under parliamentary privilege - whether immunity precludes defendant from maintaining, and the court from hearing, defences which question advocate’s in court conduct - parliamentary privilege - advocate's immunity and parliamentary privilege distinguished - principles considered - whether plaintiff’s reply should be struck out under r 14.28

PRACTICE – Production of documents – pursuant to notices to produce – Whether notices to produce valid – Use of notice to produce as substitute for discovery – Whether “vexatious and oppressive” – Security for costs – Whether defendants the cause of plaintiffs’ impecuniosity – Delay – Whether delay caused prejudice to party against whom order was sought. - CORPORATIONS – Where leave granted earlier pursuant to Corporations Act s237 – Whether condition as to costs can now be attached pursuant to s242. -

CRIMINAL LAW – Sentencing – Crown appeal against reduction of sentence for assistance to authorities – Principles to be applied on appeal pursuant to s.5DA Criminal Appeal Act 1912 – Whether or not undertaking to give evidence was given – No record made of an undertaking – Expectation that respondent would give evidence is not an undertaking within the meaning of s.23 Crimes (Sentencing Procedure) Act 1999

Criminal law - sentencing - multiple offences - application of utilitarian discount - principle of totality - sentence not manifestly excessive.

Sentencing - parity - co-offenders in drug importing - whether difference in parts played such that parity principles of sentencing were offended - no point of principle.

CRIMINAL LAW – Sentencing – Crown appeal – whether sentence manifestly inadequate – accumulation of sentences – malicious damage to property.

APPEAL — facts — interference with findings of fact — whether critical findings of fact inconsistent with incontrovertible fact or uncontested testimony — whether the decision at trial glaringly improbable or contrary to compelling inferences — whether trial judge adequately considered contemporaneous documents — - NEGLIGENCE — damage — causation — shifting evidentiary burden — whether appellant demonstrated its case to a prima facie level so as to require respondent to explain or contradict that case — - EVIDENCE — witnesses — failure to call witness — whether witness one expected to be called by one party rather than the other — adverse inferences — - EVIDENCE — expert evidence — function of appellate court — dispute between experts — whether trial judge entitled to reject expert witness whose qualifications not put in issue — where expert issue in dispute involved differences between the expert witnesses capable of being resolved rationally by examination and analysis — - JUDGMENT — adequacy of reasons — whether trial judge adequately considered appellant’s case —whether trial judge exposed his reasons for resolving a point critical to the contest between the parties — whether trial judge did justice to issues posed by appellant’s case.

TORTS – negligence – duty of care – breach – accident which occurred at a place of work under the control of a third party (the appellants) – absence of control by respondent employer over working environment – whether, in the light of this, the respondent failed to take reasonable steps to avoid exposing its employees to unnecessary risks of injury and to provide them with a safe system of work - TORTS – breach of statutory duty – duties of employers to employees – duty to eliminate or, if not reasonably practicable, control risks to employees – risk control measures relating to working space – whether the respondent failed to ensure the provision of sufficient working space to allow persons to work safely – Occupational Health and Safety Act 2000 (NSW), ss 8, 10, 12 and Occupational Health and Safety Regulation 2001 (NSW), cll 11, 45(a) discussed – relationship between cl 11 (elimination or control of risks) and risk control measures set out in Pt 4.3 of the Occupational Health and Safety Regulation - TORTS – breach of statutory duty – duties of employers to employees – duties relating to use of plant – Occupational Health and Safety Regulation, cl 136(3)(d) – duty to control the risk of entanglement in plant with moving parts in situations where it is not possible for the employer to eliminate the risk – whether provision triggered – question of fact in this case as to whether it was possible for the respondent to eliminate the risk - TORTS – breach of statutory duty – defences – statutory defences – Occupational Health and Safety Act, s 28 – statutory defence available in respect of criminal prosecutions for breach of cl 11 of the Occupational Health and Safety Regulation by failing to comply with cl 45(a) – unresolved question as to whether s 28 also amounts to a restriction of any civil liability that may be imposed on an employer by s 32 for breach of a statutory duty - COSTS – apportionment – extension of right to contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act to costs – question as to whether the respondent should contribute to the costs required to be paid to the injured plaintiff by the appellants in the light of the fact that the respondent would not have been ordered to pay the injured plaintiff’s costs had the injured plaintiff sued the respondent – James Hardie and Co Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679 distinguished on the facts – consideration of general rule as to costs in work injury proceedings – Workers Compensation Regulation 2003 (NSW), cl 91 – exceptions to general rule under cll 89, 90(1) and (2) - WORKERS’ COMPENSATION – contribution – Workers Compensation Act 1987 (NSW), s 151Z(2)(d) – whether the assessment of damages by which the amount of contribution under s 151Z(2)(d) is to be calculated must be proportionate to the relevant heads of damage making up the damages which the party seeking a contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act is liable to pay the injured plaintiff. D -

Appeal - Public interest - Vicarious Liability - Liquor harm minimisation - Procedural fairness

COSTS - probate litigation [2007] NSWSC 1329 - contest between different defendants on whether informal document should be admitted to probate as codicil to formal will - successful defendants claimed order for costs against unsuccessful defendant - costs of successful defendants out of estate, unsuccessful defendant left to pay own costs.

Administrative law - Certiorari - Contract - Natural justice - Private School - Expulsion procedures - Education Act 1990 (NSW) - Whether rules of natural justice engaged in application to private domestic tribunal - Application by student for declaratory and other relief to uphold claim that decision to expel was invalid

CORPORATIONS - winding up - company concedes insolvency - whether winding up proceedings should be dismissed as an abuse of process - whether the court should in its discretion dismiss or adjourn the winding up proceedings

REAL PROPERTY – Adverse possession – Intention to dispossess – Exclusive use – Limitation of action – Oral agreement - ESTOPPEL – Estoppel by representation – no detriment.