Cases and authorities

Extension of limitation period - Qld - personal injury

Landlord and Tenant - Rent - Date upon which increase in rent is payable.

CIVIL PROCEURE – subpoena for production of documents issued to defendants' former solicitor - failure by solicitor to comply with terms of subpoena – attempts to obtain documents unsuccessful - application for issue of arrest warrant for failure to comply – warrant issued – evidence given by solicitor for failure to comply – unsatisfactory explanation – costs awarded to plaintiff from date of service of subpoena

CRIMINAL LAW - Sentence - Manslaughter by Unlawful and Dangerous Act - Juvenile Offenders - Offence Committed in Company - Unprovoked Assault upon Young Male.

DAMAGES – Measure and remoteness of damages in actions for breach of contract – remoteness – liabilities incurred – vendor and purchaser – completion of sale under first contract relied upon by plaintiff to enter into a second contract for purchase of another property – first contract breached by defendant – plaintiff unable to complete second contract – losses resulting from breach of second contract - DAMAGES – Measure and remoteness of damages in actions for breach of contract – remoteness – other cases – interest damages – where timely receipt of monies needed and known to both parties – where return of property under first contract at date of termination does not compensate adequately for losses stemming from the breach - In March 2000 the appellant (the purchaser) contracted to purchase from the respondent (the vendor) a home at Hunters Hill. The price was $3,150,000 and a deposit of $315,000 was paid on exchange. In April 2000, in reliance upon the purchaser completing the contract, the vendor entered into a contract to purchase a home in Killara. The vendor paid the customary ten per cent deposit on that contract. - In May 2000, after the nominated completion date for the Hunters Hill contract had passed and after the issuing of notice to complete, the vendor terminated the contract and the purchaser’s deposit was forfeited. As a result of the termination, the vendor was also unable to complete the purchase at Killara and suffered the forfeiture of the deposit he had paid on that contract.

APPEAL AND NEW TRIAL – Appeal - general principles – interference with judge’s findings of fact – functions of appellate court – findings on issue of negligence – generally – whether safety glass was required to be installed by Ordinance and/or Australian Standard – where trial judge found construction of sliding glass door to be after Ordinance and/or Australian Standard came into existence – finding of fact overturned on appeal - TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – owner of premises – partly commercial premises – motel and reception – sliding glass door to reception made of annealed glass – child ran into sliding door – child was son and brother of plaintiffs – whether there was a failure to construct building in accordance with Ordinance and/or Australian Standard – building found to be constructed before Ordinance and/or Australian Standard came into effect – relevance of Ordinance and/or Australian Standard to negligence - TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – where council gave approval for building – whether council had a duty to advise or require plaintiffs’ and owners’ compliance with Ordinance – Local Government Act 1919, s 310, s 314 - TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – whether owner under a duty conduct a safety audit when renovations carried out – duty is not so specific – duty is to take reasonable care in the circumstances – where no knowledge of dangers of annealed glass – where annealed glass not a dangerous defect

CRIMINAL ASSETS – serious crime derived property – interest in property subject to restraining order – where owner of property subject to restraining order not suspected of engaging in serious crime related activity – assets forfeiture order – exclusion order - Criminal Assets Recovery Act 1990 (NSW), ss 22 and 25 WORDS & PHRASES – “derived” in Financial Transactions Report Act 1988 (Cth), s 15 – “illegal activity” – “interest in property” – “property” – “serious crime derived property” – in Criminal Assets Recovery Act 1990 (NSW)

CONTRACTS – Construction and interpretation – Heads of agreement for sale of hotel – “Subject to formal exchange of contracts” – Whether heads of agreement created binding obligation on defendant to procure sale of hotel to plaintiff.

PROCEDURE - costs - no matter of principle

CORPORATIONS - winding up - application for order setting aside statutory demand - whether applicant may rely on grounds not mentioned in supporting affidavit ("Graywinter principle") - whether vagueness and ambiguity is a "defect" in a demand - whether, because of such a defect, applicant would suffer substantial injustice if demand is not set aside

PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Relevant considerations - Whether prejudice may be cured – Whether stress on litigants a relevant factor.

CONVEYANCING [175]- Torrens title- Instruments generally- Attestation and execution- Forgery- On facts, forgery proved- Orders made for restitution.

TORT - negligence - personal injury - altercation between patrons in hotel - subsequent fight between those persons in the street - liability of owner/occupier of hotel, licensee and provider of security services for injury occasioned in the fight - no duty or breach.

CRIMINAL LAW - Sentence - Customs Act 1901 (Cth) - Second serious drug offence - no question of principle

PRACTICE AND PROCEDURE – refusal of adjournment – appeal against refusal of legal aid – principles for lack of bona fides – unreasonable and vexatious – improper delay – no basis for refusal of adjournment – error by magistrate – appeal granted - CRIMINAL LAW – goods in custody – reasonable suspicion – authorities examined – hearsay evidence.

NEGLIGENCE - Melbourne/Voyager Collision - claim for damages - verdict found for plaintiff 2.8.07 - interest on damages - method of calculation - whether the usual rule of thumb should apply or precise calculation.

LEASES – Retail Leases Act 1994 – application for removal of court proceedings to the Tribunal - retail tenancy dispute – meaning – necessity for existence of a genuine dispute – no genuine dispute – application refused

Family Provision. Claim by a son in respect of estate left equally between son and daughter. Excessive expenditure on costs having regard to size of estate. Orders made for capping of defendant's costs.

Adoption of referees' report - Fraud finding - Jones v Dunkel - Principles to be applied on challenge to referees' report - Cost plus contracts

DEFAMATION – imputations found by jury to have been conveyed – defences of qualified privilege at common law, comment and unlikelihood of harm – circulation/distribution of defamatory publications - QUALIFIED PRIVILEGE – whether recipient “interested” in receiving communication on the relevant subject matter – whether defendant acted bona fide in making communication – COMMENT - whether imputations were an expression of opinion or statement of fact - whether comment was based on proper material for comment - UNLIKELIHOOD OF HARM – s 13 – whether recipient likely to place any trust or weight in communication - DAMAGES – whether proceedings an abuse of process – quantification – relevant considerations – aggravated damages

CRIMINAL LAW - Sentencing - Suspended sentence - Bond revoked - Non-parole period previously set - No power to re-set period - RES JUDICATA - Suspended sentence - Amending legislation - Bond revoked - Existing sentence not affected by amendment

DEVELOPMENT CONSENT - appellants claimed invalid because development for a prohibited purpose - car park for golf club on land across the road from the Club - held permitted purpose because ancillary to use of golf club land as recreation area - consideration of independent and ancillary usage - no error shown in judge's conclusion - COSTS - judge made order for costs against appellants - reasons for challenging costs order outlined - no substantial ground demonstrated - leave to appeal against costs order refused.

APPEAL - Findings inconsistent with incontrovertible facts and compelling inferences - NEGLIGENGE - Road accident - Motor vehicle runs off road - Accident - Evidence of negligence - Res ipsa loquitur

Plaintiffs borrow from third party lenders to lend money to the defendant - claim for repayment of loans and for loan fees

PROCEDURE – Liberty to apply – Scope of orders which may be sought under liberty to apply – Application seeking working out of earlier (principal) orders may not deprive party of rights afforded to that party under principal orders – Supplemental orders made for purpose of making more efficacious the principal orders. - EQUITY – Trusts and trustee — Application by trustee for opinion, advice or direction of court – (NSW) Trustee Act 1925 s 63.

PROCEDURE [101] - Supreme Court - NSW - Procedure under SCR - Amendment - Late application - Whether prejudice curable.

CRIMINAL LAW – Crown appeal against inadequacy of sentence – conviction on several counts of robbery with offensive weapon - concurrence and accumulation of custodial sentences - totality principle – whether similar offences committed over short period of time should attract totally concurrent sentences – whether accumulation of sentences adequately reflect seriousness of crimes – unusual subjective features demonstrated - no miscarriage of sentencing discretion shown – appeal dismissed

VENDOR AND PURCHASER - vendors sue for damages and for deposit after purchaser fails to complete - purchaser's failure to complete arose from (1) discovery after exchange of SEPP53 providing for likely medium-density development of neighbouring property (but not of property sold) (2) discovery that agent misrepresented existence of rival purchaser and called for immediate exchange - purchaser cross-claims damages for fraudulent misrepresentation by agent about interest of supposed other prospective purchaser factual disputes between vendor and agent about responsibility for misrepresentation - on valuation evidence the property's value was equal to the sale price, hence no damages, cross-claimed failed and damages awarded to vendors for failure to complete - vendors' alternate claim against agent, purchaser's claim against her solicitor also dismissed.

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

Police officers - Waterfall disaster - pure mental harm - duty of care - "the scene" - put in peril

CORPORATIONS – security for costs of appeal – whether s 1335 of Corporations Act 2001 (Cth) subject to State law – whether inconsistency – previous operation of State law – Corporations Act, ss 5E and 5G - COSTS – security for costs – impecuniosity of party against which order sought – whether order for security would stifle or stultify proceedings – position of individual appellant – oppression - JURISDICTION – jurisdiction of Court with respect to security for costs of appeal – exercise of federal jurisdiction by State court – Corporations Act, s 1335 – Supreme Court Rules, Part 51, r 16 – exercise of discretionary power under Corporations Act s 1335 not constrained by requirement of special circumstances - PROCEDURE – powers of Court to review decision of registrar – requirement of effective control and supervision by judge or judges of Court

APPEAL - leave to appeal - Local Court - contract

CONTRACT- implication of term - operating agreement for waste transfer station - third party injured when fell over guard rail that was too low - whether owner of waste transfer station under implied contractual obligation to operator to ensure that its design was adequate to ensure its safe operation - whether operator separately agreed to indemnify owner against liability re injured third party.

LANDLORD AND TENANT – Lessor refused consent to assignment of lease – whether proposed assignees had “retailing skills that are inferior to those of the proposed assignor” for the purposes of s 39(1)(b) Retail Leases Act 1994 – what constitutes “retailing skills” – whether refusals of consent to assignment made in bad faith and constituted unconscionable conduct in contravention of s 62B(1) Retail Leases Act 1994.

CONTRACT [2]- General contractual principles- Matters not giving rise to formal contract- Plaintiff claims second defendant published photographs of her baby in contravention of alleged oral agreement- Fact plaintiff understood agreement to be binding not proof of formal contract between parties- Plaintiff's contract claim fails. INTELLECTUAL PROPERTY [1336]- Confidential information- Equitable obligations of confidence- Photographs held not to be confidential information- Plaintiff's breach of confidence claim fails.

CUSTOMS PROSECUTION - Sentence following admission of guilt and assistance to the prosecutor.

CRIMINAL LAW – sentence – manslaughter by unlawful and dangerous act – victim knocked down with one punch hitting head on concrete – plea of guilty – lower range culpability offence in extensive and varying gravity of offences included in manslaughter.

PROFESSIONAL NEGLIGENCE - solicitors - retainer - construction of commercial contracts - rectification of contract - estoppel by convention - election between inconsistent rights - negligence - causation of damage - damage for loss of opportunity

Criminal Law - Sentence - Murder - Extortion - Assault Rifles - Assistance to Authorities

CRIMINAL LAW – procedure – summary proceedings before Local Court – Court Attendance Notice – requirement for Court Attendance Notice to be filed in court not later than 7 days after service – whether Court Attendance Notice filed within time – where court file did not contain a copy of Court Attendance Notice that was filed within time – where prosecutor had copy of Court Attendance Notice bearing court stamp that showed Court Attendance Notice filed within time – where magistrate only considered documents on court file to determine whether Court Attendance Notice filed within time – whether magistrate erred - ADMINISTRATIVE LAW – prerogative writs and orders – mandamus – decision of inferior Court – statutory procedures for commencing summary criminal proceedings before Local Court – where magistrate found no jurisdiction to hear charges – constructive failure to exercise jurisdiction – whether mandamus appropriate – discretionary considerations for issue of mandamus

APPEAL - Conviction appeal - Judge summing up on case not relied upon by the Crown - application of the proviso - Sentence appeal - Ground based on fresh evidence - CRIMINAL LAW - Practice and Procedure - whether address by prosecutor unduly prejudicial - Summing up - case not relied upon by Crown - CRIMINAL LAW - Evidence - Whether evidence of other offences inadmissible or unduly prejudicial - CRIMINAL LAW - Sentence - offender convicted of murder and the included offence - double punishment.

CRIMINAL LAW - evidence – the ‘credibility rule’ – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement - CRIMINAL LAW – sentencing – parity – appellant’s criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence - CRIMINAL LAW – sentencing – date of commencement of sentence - pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

LEGAL PRACTITIONERS - Removal from Roll - Professional misconduct - Fit and proper person - Conviction for serious drug offence - Whether finding should be made that opponent gave false evidence.

EQUITY [76] – General principles – Mistake – Equitable relief in case of mistake – Rectification – Generally - Necessity for mutual mistake – Necessity to show common intention with which document executed - ESTOPPEL [34] - Estoppel in pais – Equitable estoppel – Other matters – Defendant represents to plaintiff Council that if parties enter into deed under which Council will organise construction of road giving access to allotments including land of the defendant, defendant will not claim compensation for land dedicated to Council – Defendant estopped from claiming compensation for dedicated land.

Civil procedure - application to set aside assessments of costs - permanent stay.

NEGLIGENCE - Breach of duty owed by counsellor / hypnotherapist to client - Sexual exploitation - Psychiatric illness - Compensatory damages - Exemplary damages

PRACTICE AND PROCEDURE - Statutory interpretation - Service of Court Attendance Notices by post - Residential premises and usual place of residence